Citation Nr: 1753342 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-21 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an upper respiratory infection disability. 2. Entitlement to service connection for tinea pedis. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to an initial rating in excess of 50 percent prior to May 27, 2016 and in excess of 70 percent thereafter, for anxiety disorder. 5. Entitlement to an initial rating in excess of 20 percent for benign prostatic hyperplasia. 6. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. 7. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. 8. Entitlement to an initial compensable rating for left foot calluses. 9. Entitlement to an initial compensable rating for left foot calluses. 10. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 27, 2016. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1975 to August 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012 and July 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the Veteran was granted service connection for callouses of both feet and rated under Diagnostic Code 7899-7806, as will be discussed below, the Board finds that the Veteran is entitled to a higher rating under Diagnostic Code 5284 for each foot. Therefore, the Board has updated the issues to reflect ratings for left foot calluses and right foot callouses, rather than calluses of both feet. The issues of entitlement to service connection for an upper respiratory infection and migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of tinea pedis. 2. During the entire period on appeal, the Veteran's service connected anxiety disability has been manifested by symptoms of claustrophobia, hypervigilence; anger; anxiousness; suspiciousness; inability to maintain personal or work relationships; social isolation; nervousness; difficulty sleeping most days and mild memory loss. 3. During the entire period on appeal, total occupational and social impairment was not demonstrated due to the service-connected anxiety and its related symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; disorientation to time and place; memory loss for names of close relatives, own occupation or own name; persistent hallucinations or delusions; or inability to perform activities of daily living; or symptoms of a similar severity. 4. The Veteran's benign prostatic hyperplasia is manifested by symptoms of increased urinary frequency; urine leakage due to bladder incontinence; daytime voiding every 2 to 3 hours and nighttime awakening to void 3 to 4 times per night, at its worst. There is no evidence of obstructive voiding or urinary tract infections. It does not require the use of absorbent material or appliances. 5. The Veteran's lumbosacral strain disability is manifested by pain, flare-ups, forward flexion limited to 90 degrees, at its worst; extension to 10 degrees, at its worst; right and left lateral flexion to 20 degrees, at their worst; right and left lateral rotation to 10 degrees, at their worst; and radicular pain to the left lower extremity, for a total combined range of motion of the thoracolumbar spine of 160 degrees, at its worst. There is no evidence of ankylosis; intervertebral disc syndrome symptoms which required prescribed bedrest or other neurologic abnormalities other than the left lower extremity radiculopathy. 6. The Veteran's left lower extremity radiculopathy (secondary to his lumbosacral strain disability) causes symptoms of mild intermittent pain and numbness. 7. The Veteran's calluses of the left and right feet result in constant pain, especially when standing, and the need to shave the calluses. 8. During the entire period on appeal, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Tinea pedis was not incurred in or aggravated by service. 38 U.S.C. § 1110, 1131, 5107 (West 2012); 38 C.F.R. § 3.303, (2017). 2. During the entire period on appeal, the criteria for a rating of 70 percent, but no higher, for the service-connected anxiety have been met. 38 U.S.C. § 1155, 5107, 7104 (West 2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2017). 3. The criteria for a rating in excess of 20 percent for benign prostatic hyperplasia have not been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 4.115a, b Diagnostic Code 7527 (2017). 4. The criteria for a rating in excess of 10 percent for lumbosacral strain have not been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 4.71a, b Diagnostic Codes 5237, 5243 (2017). 5. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.71a, b, 4.124a Diagnostic Codes 5237, 8520 (2017). 6. The criteria for a 10 percent initial rating, but no higher, for service-connected left foot calluses have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.72 Diagnostic Code 5299-5284 (2017). 7. The criteria for a 10 percent initial rating, but no higher, for service-connected right foot calluses have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.72 Diagnostic Code 5299-5284 (2017). 8. The criteria for a finding of a TDIU have been met during the entire period on appeal. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. § 3.340, 4.3, 4.16(a), 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection Service connection requires evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no competent evidence that the Veteran carries a diagnosis of tinea pedis. Service treatment records are silent for any such diagnosis and post-service treatment records also are void of any tinea pedis diagnosis. The only evidence of tinea pedis is the Veteran's statements. However, the Board finds that the Veteran is not competent to diagnose tinea pedis. The Veteran has been assessed for various ailments by different doctors and none of them have found that he meets the criteria for a diagnosis of tinea pedis. Absent any evidence of tinea pedis or any residuals thereof during the pendency of the claim or at any recent time prior to the claim was filed, the Board finds that service connection for tinea pedis is not warranted. Accordingly, as the preponderance of the evidence is against the Veteran's claim, the "benefit of the doubt" rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Ratings Anxiety Under 38 C.F.R. § 4.130, Diagnostic Code 9413, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The Veteran reports that his anxiety causes him to suffer from claustrophobia and cannot be around more than 2 to 3 people at a time. He endorses being hypervigilant; angry at times; anxious; suspicious of everyone; unable to maintain personal or work relationships; socially isolated; nervous; and having a difficult time sleeping for days at a time and remembering things. The Veteran has been homeless for the last 10 years and lives in his car. He doesn't have any interaction with his children, but used to help financially his sisters. The 2012 and 2016 VA examiners found that the Veteran had occupational and social impairment with reduced reliability and productivity. The Board finds that the Veteran's anxiety most closely resembles the criteria for a 70 percent rating for the entire period on appeal. The Veteran has declined receiving mental health treatment, so the only evidence of record regarding his mental health are his lay statements and the 2012 and 2016 VA treatment records. Based on this limited information, the Board finds that the severity and frequency of the Veteran's anxiety symptoms more closely resemble occupational and social impairment deficiencies in most areas. He has reported that he has difficulty sleeping for days at time; he walks around angry at the world, can't "remember from day to day;" and has little to no interaction with most people (he said he would prefer to live out in the woods away from people). He appears to be a loner and has managed his life without much assistance from others. "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). All in all, the Board finds that the Veteran's anxiety has caused deficiencies in most areas of life. That being said, the 2016 VA examiner found that the Veteran's thought process was logical and goal-directed and there was no evidence of perceptual disturbance. The Veteran did not appear to suffer from symptoms such as hallucinations, delusions, etc. The evidence of record does not reflect symptomatology of the Veteran's anxiety that would meet the criteria for a rating of 100 percent at any time during the appeal period. In order for the Veteran to be entitled to a 100 percent rating, he must demonstrate total occupational and social impairment. The Board finds that the Veteran's disability does not reflect the level of severity required for total occupational and social impairment. Benign Prostatic Hyperplasia The Veteran's benign prostatic hyperplasia is rated under the provisions of 38 Diagnostic Code (DC) 7527, which provides the criteria for prostate gland injuries, infections, hypertrophy, and postoperative residuals of the prostate gland. Such disability is to be rated under either voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527 (2017). Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. A 20 percent rating is warranted when there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, such that the Veteran is required to wear absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted when the Veteran is required to wear absorbent materials that must be changed two to four times per day. A 60 percent disability rating is warranted with the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. With regard to urinary frequency, a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating, and daytime voiding interval less than one hour, or awakening to void five or more times per night warrants a 40 percent rating. 38 C.F.R. § 4.115a. The Board finds that the Veteran's benign prostatic hyperplasia most closely approximates the criteria for the already assigned 20 percent rating. His symptoms have, at their worst, caused daytime voiding every 2 to 3 hours and nighttime awakening to void at least 2 times per night. The Veteran has denied needing to wear absorbent materials or appliances to manage his leakage although he has endorsed that he dribbles post voiding. The Board finds that he is not entitled to a rating in excess of 20 percent because there is no evidence of the use of absorbent materials or appliances; obstructed voiding; use of medication to manage his symptoms or urinary tract infections. Based on the foregoing, the Board concludes that the Veteran's benign prostatic hyperplasia has been no more than 20 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Lumbosacral Strain The Veteran reported having back pain 4 days a week, which is aggravated by bending, standing, stooping or sitting for more than 30 minutes. He reported that he takes Vicodin for the pain, which provides relief. He denied the use of ambulatory devices such as braces of the use of medication to manage the pain. Range of motion testing revealed forward flexion to 90 degrees or greater; extension to 25 degrees in 2012 and to 10 degrees in 2016; right and left lateral flexion to 25 degrees in 2012 and to 20 degrees in 2016; and right and left lateral rotation to 30 degrees or greater in 2012 and to 10 degrees in 2016. He experiences functional impairment including less movement than normal and pain on movement. There is also evidence of arthritis; localized tenderness, resulting in Veteran ambulating with flexed forward position, or pain to palpation for joints and/or soft tissue. There is no evidence of muscle atrophy or ankylosis. Based on the foregoing, the Board finds that the Veteran's back meets the criteria for the already assign 10 percent rating. The Veteran's combined range of motion of the thoracolumbar spine has been 160 degrees, at its worst, which meets the criteria for a 10 percent rating. In order to be entitled to a 20 percent rating, there must be evidence of forward flexion limited to greater than 60 degrees but less than 85 degree or a combined rating of motion no greater than 120 degrees. Such evidence is not present in this case. As of the May 3, 2016 VA examination, there is evidence that the Veteran suffers from intervertebral disc syndrome (IVDS), but no evidence of episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. Therefore, he is not entitled to a higher rating under Diagnostic Code 5243. As of the May 2016 VA examination, the Veteran reported left lower extremity radicular pain. In a July 2016 rating decision, he was granted service connection for left lower extremity radiculopathy associated with lumbosacral strain under Diagnostic Code 8520 and assigned a 10 percent rating, effective May 3, 2016 (date of VA examination). There is evidence that the Veteran suffers from mild intermittent pain and numbness related to his radiculopathy. These symptoms equate to the already assigned 10 percent rating in effect for mild incomplete paralysis of the sciatic nerve. In order to be entitled to a higher rating of 20 percent, there must be evidence of moderate incomplete paralysis, which is not present in this case. There is no evidence that the Veteran suffers from any other neurologic abnormalities which would entitle him to a higher or additional rating. There are no other applicable diagnostic codes that would permit the Veteran a higher rating for his lumbosacral strain disability. Therefore, the Board finds that the Veteran is not entitled to a rating in excess of the already assigned 10 percent rating for lumbosacral strain. The preponderance of the evidence is against assigning schedular ratings higher than those already assigned. Calluses The Veteran reports that he has calluses on his feet, which he shaves with a knife. He reports that he experiences constant foot pain, which is aggravated by standing for more than 2 hours. The Veteran's calluses are currently rated by analogy under Diagnostic Code 7899-7806 for dermatitis or eczema. Calluses are areas of flat widespread thickened skin that forms typically on the bottom of the feet. Definition of Corns and Calluses, American Podiatric Medical Association, http://www.apma.org/learn/FootHealth.cfm?ItemNumber=1346 (last visited Nov. 15, 2017). Although calluses are seemingly related to the skin, the Board finds that the impact of the Veteran's calluses on his feet implicates consideration under Diagnostic Code 5284 for foot disabilities. Under Diagnostic Code 5284, a 10 percent evaluation is warranted for a moderate foot injury; a 20 percent evaluation is warranted for a moderately severe foot injury; a 30 percent evaluation is warranted for a severe foot injury. In addition, if there is an actual loss of use of the foot, a 40 percent evaluation is assigned. The Board notes that separate ratings for each foot may be warranted under Diagnostic Code 5284, as it does not expressly limit particular evaluations to unilateral or bilateral findings. See 38 C.F.R. § 4.17a. The words "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. The Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). Based on review of the record, the Board finds that a 10 percent rating for each foot with calluses is warranted under Diagnostic Code 5284. This code is used for foot disabilities not otherwise enumerated as specific disabilities under 38 C.F.R. § 4.17a. Here, the Board notes the Veteran's lay reports of pain and difficulty standing for long periods of time and the need to shave down the calluses due to pain. This is more in line with a mild to moderate foot injury. A moderately severe foot injury (next higher rating) would require evidence of increased symptomatology such as difficulty walking, the use of assistive devices or impairment to ranges of motion, which are not present in the instant case. The Board has considered other potentially applicable diagnostic codes that pertain to the feet or skin, but finds that the evidence does not support a higher rating under any other diagnostic code. Based on the foregoing, the Board finds that the evidence of record supports the assignment of a 10 percent rating, and not higher, for disability due to calluses for both the left and right feet for the entire period under appeal. TDIU, prior to May 27, 2016 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service connected for anxiety disorder, rated as 70 percent disabling (prior to May 27, 2016, granted in current decision); benign prostatic hyperplasia, rated as 20 percent disabling; lumbosacral strain, rated as 10 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling since May 3, 2016; left foot calluses, rated as 10 percent disabling (granted in current decision); and right foot calluses, rated as 10 percent disabling (granted in current decision). His combined rating is 80 percent. See 38 C.F.R. § 4.25 (combined ratings table). Upon taking into consideration the Veteran's level of education, work experience, and the functional impairment resulting from his service-connected disabilities, the Board finds that the Veteran is unable to work due to his service-connected anxiety, back and foot disabilities. The Veteran has limited education (only high school education) and previously only worked in factory settings (worked in factory from 1980-1984, at a textile plant from 1985-2005, and at a food processing plant from 2011-2012). See June 2012 VA mental disorders examination. The Veteran's anxiety disorder causes him to be unable to work in settings where there are more than 2 to 3 people; his back disability limits the time he can sit or stand; and his foot disabilities limit the time he can stand without pain. There are very few settings in which the Veteran would be eligible to work based on his education and work experience that would accommodate his various physical and mental limitations. The Board concludes that the competent and credible evidence of record supports a finding of entitlement to TDIU, prior to May 27, 2016. The disability picture presented by the probative, competent, and credible evidence of record establishes that due to his service-connected anxiety, back disability and foot calluses, the Veteran was been unable to obtain or retain substantially gainful employment. ORDER Entitlement to service connection for tinea pedis is denied. Entitlement to a 70 percent rating, but no higher, for the service-connected anxiety, prior to May 27, 2016, is granted, subject to regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 70 percent for the service-connected anxiety, since May 27, 2016, is denied. Entitlement to an initial rating in excess of 20 percent for benign prostatic hyperplasia is denied. Entitlement to a rating in excess of 10 percent for the lumbosacral strain is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to an initial 10 percent rating, but no higher, for left foot callouses is granted, subject to regulations applicable to the payment of monetary benefits. Entitlement to an initial 10 percent rating, but no higher, for right foot callouses is granted, subject to regulations applicable to the payment of monetary benefits. Entitlement to a TDIU, prior to January 27, 2016, is granted, subject to regulations applicable to the payment of monetary benefits. REMAND First, the Veteran's service treatment records indicate that he was treated for an upper respiratory infection on at least 2 occasions. The Veteran claims that he currently suffers from an upper respiratory infection and his nasal passages are "swelled shut and [he has] to breathe through [his] mouth." See Board Hearing Transcript, p. 11. The Veteran has not been afforded a VA examination in connection with his claim. Based on the above facts, the Board finds that a remand is necessary to provide the Veteran a VA examination to determine whether he suffers from an upper respiratory infection disability that is related to his active service. Second, the record raises a question as to whether the Veteran had headaches which preexisted service. The June 2012 VA examiner found that the Veteran's headaches were noted on entry and therefore preexisted service. The examiner concluded that the Veteran's preexisting headaches were not permanently aggravated by service. However, having carefully reviewed the record, the Board finds that the Veteran's entrance examination does not list a headache disability. The Veteran's headaches were only recorded on his August 1975 Report of Medical History. Therefore, the presumption of soundness applies. On remand, the Veteran should be afforded a VA examination to determine whether he clearly and unmistakably suffered from headaches prior to service, and if so, whether such headaches clearly and unmistakably were not aggravated by service. If the examiner finds that the headaches did not preexist service, then an opinion as to whether the Veteran's current headaches are related to active service should be obtained. Third, the Veteran testified that he was prescribed a sleep mask for his non-service connected sleep apnea. It is unclear as to whether the Veteran received treatment for his respiratory complaints, other than the non-service connected sleep disorder, from the same provider. There are no records in the VA treatment records which show treatment for sleep apnea, which leads the Board to believe that there may be missing private or VA treatment records. On remand, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records related to his claim for his upper respiratory infection or migraine headaches. Up to date VA treatment records should also be obtained and associated with the Veteran's electronic claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records pertaining to the Veteran that date from May 2016 and associate them with the electronic claims folder. 2. Contact the Veteran and request that he provide or authorize the release of any private treatment records where he received treatment for his claimed upper respiratory infection disability or migraine headaches, as well as any other records, not already of record, that are relevant to his claim. If, after making reasonable efforts to obtain non-VA records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Then schedule the Veteran for a VA examination to determine the etiology of the Veteran's respiratory disability. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review prior to the examination. All indicated tests must be performed all findings reported in detail. The examiner is requested to provide an opinion on the following: Opine whether the Veteran has a diagnosis of an upper respiratory infection or other respiratory disability. The examiner's attention is directed to the Veteran's statement that his nasal passages are "swelled shut and [he has] to breathe through [his] mouth." See Board hearing transcript, p. 11. If so, opine whether it is at least as likely as not (50 percent probability or greater) that any respiratory disability, including an upper respiratory infection, is related to or had its onset in service. The examiner's attention is directed to the service treatment records which indicate treatment for an upper respiratory infection. 4. Then, schedule the Veteran for a VA examination concerning his claim for headaches conducted by a medical professional familiar with the diagnosis and treatment of headaches. The electronic claims file must be made available to, and reviewed by, the examiner. All appropriate clinical testing should be conducted. The examiner should provide a medical opinion that expressly addresses the following: (a) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that headaches pre-existed active service. Please provide a complete explanation for the opinion. See August 1975 Report of Medical History. (b) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing headache disability WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. (c) If it did not preexist service, the examiner must opine as to whether any current headache disability at least as likely as not (a probability of 50 percent or greater) began in or is related to service. The examiner's attention is directed to service treatment records which indicate multiple complaints of and treatment for headaches during service. Please provide a complete explanation for all opinions. 5. Ensure that the information provided in the examination reports satisfy the criteria above and, if not, return the reports as insufficient. Then, readjudicate the Veteran's claims after ensuring that any other appropriate development is complete. If the benefits sought remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs