Citation Nr: 9905784 Decision Date: 03/01/99 Archive Date: 03/11/99 DOCKET NO. 93-27 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased rating for service-connected post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 2. Entitlement to an increased rating for service-connected cerebral concussion manifested by headaches, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for service- connected low back strain, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: James W. Craig, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from December 1966 to December 1968, March 1969 to March 1972, and December 1972 to November 1978. This matter initially came to the Board of Veterans' Appeals (Board) from a December 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied the claims for increased ratings for service-connected PTSD, low back strain, and headaches. A notice of disagreement was received in January 1992. In February 1992, a statement of the case was issued and a substantive appeal was received. In February 1993, the veteran appeared and testified before a hearing officer at the RO. In a March 1992 rating decision, entitlement to service connection for a cervical spine disability was denied. A notice of disagreement was received in March 1992. In October 1992, a supplemental statement of the case was issued and a substantive appeal was received. The Board granted the claim of entitlement to service connection for a cervical spine disability in a May 1996 decision, and remanded the issues listed on the face of this decision and remand. In a November 1996 decision, the RO determined that an increased evaluation of 50 percent was warranted for PTSD, and that a 40 percent evaluation was warranted for the low back condition. In an August 1998 decision, the RO determined that an increased evaluation of 70 percent was warranted for PTSD. As the increased evaluations assigned for PTSD and the low back condition are not the maximum ratings available for each disability, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). In an April 1997 decision, the RO granted entitlement to a total rating based on individual unemployability, and assigned an effective date of November 30, 1996. In December 1998, the Board received a letter, the veteran's attorney without the proper waiver of Agency of Original Jurisdiction consideration. See 38 C.F.R. § 20.1304 (1998). It is noted that in the December 1998 letter, the veteran's attorney addresses the issue of the effective date of the grant of individual unemployability. The issue is referred back to the RO for the appropriate action since the Board does not have jurisdiction over the matter at this time. The issue of an increased rating for a low back condition will be addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran's service-connected PTSD is chronic and productive of total occupational and social impairment, due to such symptoms as persistent delusions or hallucinations; and adversely affects attitudes of all contacts, except the most intimate, resulting in virtual isolation in the community, and demonstrably unable to obtain or retain employment. 3. The veteran's service-connected headaches are manifested by constant headache pain brought on by stress; seizures, multi-infarct dementia or severe dementia of the multi- infarct type are not found; and purely neurological disabilities such as hemiplegia or seizures, resulting from brain trauma, have not been found. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 100 percent for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103(a), 4.7 (1998); 38 C.F.R. § 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective as of November 7, 1996). 2. The criteria for an evaluation in excess of 10 percent for service-connected cerebral concussion residuals manifested by headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.7, 4.124a, Diagnostic Codes 8045, 9304 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Increased Evaluation for Service-Connected PTSD At the time of his separation examination in 1978, the veteran reported a medical history that included problems with excessive worry in 1970, a nervous problem beginning in 1969, and problems sleeping for the past four to five years. During a personal hearing in September 1980, the veteran described symptoms he associated with his nervous condition, particularly problems sleeping, nightmares, flashbacks, night sweats, cold spells, and being hostile towards others. On VA examination of November 1980, the veteran was diagnosed with delayed stress reaction to combat as evidenced by irritability, temper outbursts, flashbacks, panic at night waking and headaches. According to the examiner, it was evident that the symptoms caused difficulty at home and work. Service connection for delayed stress reaction to combat established by rating action of February 1981, and a 30 percent rating was assigned. VA treatment records show that the veteran was treated in 1981 for anxiety and depression. Chronic, post-Vietnam PTSD and alcohol abuse in remission were diagnosed on VA examination of November 1983. VA records dated from 1990 to 1996, reflect ongoing treatment of PTSD. On VA examination of October 1991, the examiner diagnosed chronic, delayed PTSD, history of alcohol abuse in remission, and chronic pain. The examiner opined that the veteran's symptoms were moderate in nature and had diminished in intensity over the past several years. However, he continued to experience flashbacks, nightmares, and hypersensitivity to loud noises. The veteran also had some difficulty with his temper and he had a tendency to become angry and agitated toward the system. The issue of employability was addressed in a VA counseling psychologist's May 1992 letter to the veteran's attorney. According to the physician, the veteran continued to work even though in obvious pain due to his personality dynamic that would not allow him to respond to the pain and care for himself. The physician attributed this to survival guilt. It was also noted that the veteran's inability to work and provide financial support for his family aggravated his PTSD. The physician did not believe that the veteran was employable. He was working on a homebound training and employment opportunity that was still in development, but it was not certain if it would provide gainful employment. He was clearly unemployable without training. In a June 1992 letter to the veteran's attorney, a Vet Center team leader summarized the history of treatment. The veteran was first seen in June 1982 and received counseling regarding readjustment issues twice a month until late 1983. At the time, the focus was on anxiety/fear, interpersonal issues, marital issues, financial concerns, flashbacks, alcohol issues, and vocational issues. He seemed to be persistent in his treatment for over a year and was seen intermittently in 1984. He stopped in about three or four times in 1985 with benefits questions, and continued with this pattern until his re-engagement in group treatment for the past two months. At another time he attempted to become involved, but left since the group work involved too many painful memories of Vietnam. After resuming group work, the veteran was able to discuss his various combat experiences. The team leader commented that contending with the disability created an overwhelming sense of powerlessness, and fright about his anger and rage. The veteran worried that he would jeopardize his marriage if he lost control, and that it was one of the few things he had left. The team leader also noted that problems with the system seemed to have brought him back to treatment, but he did become more involved. His PTSD was considered chronic. In a January 1993 letter, a VA physician noted that the veteran had been under his care for PTSD. He had ongoing symptoms of intrusive thoughts, nightmares, decreased emotional availability, anhedonia, isolation, hyper- reactivity, and increased startle and sleep disturbance. He agreed to medication and family therapy. He was on Nortriptyline, Prozac and Cyproheptadine. In February 1993, the veteran testified at his personal hearing that he averages about 4 to 4 1/2 hours of sleep per night. His medication helps him relax and release some of the tension in his shoulders and back, and stops some of the nightmares that usually keep him up and cause him to check the house. Generally, it takes about 45 minutes to settle down after awaking due to dreams or hearing noises. He explained that he had not discussed his Vietnam experiences until recently because of instructions he received at his exit briefing in 1973. Generally, he is able to discuss those experiences with other veterans, but he feels anger, anxiety and frustration with others who wish to discuss the same topics. The one close friend he had passed away, and he does not have or look for any others. He feels as if he has nothing to offer others. His only relationships involve his wife and family. He described his usual daily routine. During the day, he has flashbacks, and intrusive thoughts depending on what he is doing. Shadows alarm him. He does not keep weapons in his house. He also addressed his marital problems during the hearing. He noted that he calls VA counselors when he needs help, and that he used to injure himself to cope with his pain. He also indicated that the Persian Gulf war was upsetting to him. He noted problems with alcohol abuse. He has been receiving extensive treatment. He referred to treatment received on a monthly basis due to lack of transportation, going to the Vet Center once a week, and seeing several other physicians every other week. To help her understand his condition, the veteran's wife accompanies him to the Vet Center. Since he has stopped working, his PTSD symptoms worsened. He has reached the point of being able to open up and discuss his experiences, and at one point was going for biofeedback on a weekly basis. He does not feel as if he is improving. He described problems with uncontrollable anger, the effect of medication on his sex life, outbursts set off by pain and flashbacks, and the use of alcohol to handle the flashbacks. He had been taking Prozac at the same levels because his physicians wanted to cut the dosage of Nortriptyline that caused changes in his sleep patterns impaired his work. In a February 1993 letter, a Vet Center team leader reported that the veteran joined a rap group in April 1992, and that he attended 19 out of 30 possible meetings. Generally, during 19 meetings the veteran expressed his frustration with the VA system during 19 meetings, and shared his war related experiences during 3 meetings. On several occasions he discussed problems with his family, and was not amenable to changes offered by group members. He reported that he ended up in Connecticut one night due to a dissociative episode, and that he was hurt and angry prior to that event. He continued with the group until December 1992 when a time limit was set on discussions of issues regarding compensation. He parted amicably with the group and had not returned. On VA examination of June 1996, the examiner commented that the veteran was neatly dressed and groomed, and appeared to be his stated age. The following was noted: alert and oriented to person, place and time; cooperative throughout the interview; speech tangential and circumstantial; displayed psychomotor agitation while frequently discussing his feelings regarding the management of his case; mood was down in the dumps; affect anxious, frequently agitated and angry especially when discussing his claim; experienced auditory hallucinations involving people screaming, particularly for help, visual hallucinations during flashbacks; vague paranoia and a feeling that people are following and spying on him when he is over-tired; a history of suicidal ideation, but denial of any suicidal ideation for the past year; intermittent homicidal ideation, and indicated that he would kill others if he were to die, but denied any intent or specific plans, or of specific people he would kill. The examiner explained how the veteran met the criteria for a diagnosis of PTSD. The examiner concluded that from the treatment records, it appeared that the veteran's PTSD was stable. However, the examiner also pointed out that the condition effected the veteran's ability to establish and maintain effective and stable relationships with people beyond his family members. Those outside of his family are not as tolerant of the veteran's displays of irritability and anger, and the unpredictability of those symptoms. The PTSD symptoms reduce his initiative, flexibility, efficiency and reliability. Irritability and anger alone would produce that result. What appeared to be impaired concentration would prohibit his flexibility, and decreased interest in concentration would reduce his initiative. The examiner felt that the PTSD symptoms were largely responsible for that, but the symptoms have been controlled to the extent that he has been able to maintain employment at the same place for the past three years. The veteran related that he did not feel as if he was working at his highest capacity, but the examiner disagreed since it was extremely likely he would be employable at a higher level if his symptoms were in better control. The examiner summarized that the veteran's PTSD produced a significant impact on the veteran's social function and the ability to work, but he does have capacity in both areas. He appeared to maximize his treatment and had extended his effort to function his limit in both of those areas. The examiner assigned a Global Assessment Functioning (GAF) score of 50, representative of serious symptoms of PTSD and moderate to serious impairment in social and occupational functioning. Chronic PTSD was diagnosed. As noted in the Introduction, a 50 percent rating was assigned by an RO decision dated in November 1996. In a March 1998 letter, the veteran's treating VA psychiatrist offered comments regarding the severity of the veteran's PTSD. The VA psychiatrist had been treating the veteran since July 1996. Over the years, there had been multiple medical trials with varied success. He was on medication at that time. The psychiatrist addressed the veteran's problems with alcohol and coping with PTSD. It was determined that the veteran's occupational and social functioning were severely impaired secondary to the PTSD symptoms. He had difficulty dealing with employers and problems controlling his anger would seriously impede his employability. His GAF was 40. His symptoms included depression, extreme irritability; and difficulty controlling anger, which included an altercation with his son sometime earlier. He experiences disturbed sleep and difficulty falling asleep, as well as disturbing intrusive thoughts about Vietnam and hallucinations. There are multiple triggers of symptoms. He also has chronic night sweats, as well as extreme physiological reactivity and psychological distress at exposure to stimuli including shortness of breath, getting hot, tenseness, chest and throat tightening, paresthesia, muscle spasms and headaches. He is hypervigilent and feels as if people were watching him. There is prolonged startle response and diminished concentration. He avoids thinking of combat experiences and places and people that remind him of Vietnam. He refused to participate in group treatment for PTSD or a three week program due to anxiety, so he receives individual treatment. He uses isolation as a coping skill, and had been spending time with his immediate family. In the past, he coped by volunteering at the VA, but stopped because of reminders of Vietnam. He also used alcohol to cope, but has almost completely limited its use. His interest in things he used as distractions or leisure had diminished. He has been unemployed since January 1997. According to the psychiatrist, the veteran's situation was consistent with PTSD since he had been a dedicated worker for years until he started having difficulties with anger, irritability, decreased concentration and intrusive thoughts, which made it impossible for him to maintain his job. His emotional lability can lead to hopelessness, guilt and diminished sense of self-worth. A VA examination was conducted in March 1998. The examiner reported the following: irritable, but cooperative; alert and oriented to person, place and time; speech clear and goal directed, and no impaired communication; depressed mood with frequent swings to irritability; affect was anxious, irritable and nearly tearful at times; auditory hallucinations involving people calling for help and of crying babies; visual hallucinations of body parts while in flashbacks; generalized paranoia suggestive of extreme hypervigilence; no evidence of delusions; chronic suicidal ideation with intrusive thoughts of shooting himself; and denial of homicidal ideation. The examiner determined that the symptoms had worsened since the last examination. There was impairment of social functioning, occupational functioning and mood. His irritable mood causes significant intrapsychic distress and prevents him from having normal social interactions in employment and day to day settings, which would allow him to function at an expected level. His family relations were pretty well-preserved, but he was still impaired by his symptoms, which cause him to feel detached from his family. The current level of alcohol use and the diagnosis of alcohol dependence did not have a current impact on his functioning and did not contribute negatively to his GAF. He was considered competent to manage his funds. The examiner diagnosed chronic, severe PTSD, as well as alcohol dependence in near complete remission. His GAF of 45 reflects severe symptoms of PTSD in all symptom areas that have a negative impact on social functioning, family relations, regulation of mood and affect, and suicidal ideation. As noted in the Introduction, a 70 percent rating was assigned by rating action of August 1998. Increased Evaluation for Service-Connected Cerebral Concussion Residuals Manifested by Headaches The service medical records show that at the time of his separation from service in 1978, he reported a history of head injuries in 1968 and 1971, as well as complaints of periodic headaches. A December 1978 treatment record reflects a diagnosis of chronic headache exacerbated by stress and brought on just before orgasm. The headaches begin in the frontal area bilaterally and radiate to the back of the neck. The examiner assessed that they were probably tension headaches with an element of hysteria. In January 1979, it was noted that the use of Mellaril did not relieve his headaches, even though there was a tranquilizing affect. The headaches were located over the vertex and posterior skull, and were constant. They had become more intense about twice a week and at times prior to orgasm. He had an eleven year history of the headaches that were determined to be the result of a head injury of a superficial nerve in the scalp. On VA examination of February 1979, the examiner reported the following: no obvious external neurologic deficits noted in the form of speech defect, gait, tremor, etc.; blood pressure 130/80, and no bruit heard; right-handed and exhibited no muscular weakness, sensory loss, or cerebellar incoordination of any of the four limbs; cranial nerves I through XII were normal; fundi revealed no evidence of field defect, nystagmus, diplopia, etc.; and deep tendon reflexes everywhere were present and equal. The examiner diagnosed history of cerebral concussion. Service connection for cerebral concussion was established by rating action of September 1979, and a 10 percent rating was assigned. An October 1979 VA treatment record entry reflects a finding of chronic headaches and a reference to the evaluation of psychophysiological relaxation and evaluation stress response. During his personal hearing in September 1980, the veteran reported that in addition to his nightmares and problems sleeping, his headaches also produced discomfort when sleeping since he is restricted to sleeping on one side. He also noted that they occurred when he has sex with his wife. Generally, they occur during the daytime and were constant. The pain was described as soft, fluctuating and goes around the back side of his head to the forward part of the center. He was taken off of the medication used to treat them. A January 1981 treatment record reflects a diagnosis of post- concussion headaches mostly of a musculo-tension character with slight vascular features. It was also noted that the veteran reported post-concussion behavioral changes such as that included diminished tolerance to stress, easily angered, and alcohol use. VA treatment records show that the veteran underwent bilateral greater and lesser occipital nerve blocks in 1991 and 1992. A May 1991 report completed for purposes of the veteran's retirement, reflects a diagnosis of chronic pain syndrome including a 25 year history of chronic headaches. In a June 1992 report, Dr. Garrett G. Gillespie reported the history of head and neck trauma during service. The veteran described having suboccipital and neck pain. It was also noted that he had undergone a series of nerve blocks. An MRI was obtained. The cranial examination was within normal limits, normocephalic, and marked pain to palpation of all the cervical spinous processes in both greater occipital nerves. Dr. Gillespie thought that the veteran's ruptured cervical disc in his neck accounted for his occipital neuralgia and persistent neck pain over time. In a May 1992 letter to the veteran's attorney, a VA physician reported continued treatment of the veteran at the chronic pain clinic at 3 to 5 week intervals. There would be some temporary relief of head and neck pain lasts 2 to 3 weeks after the occipital nerve blocks. The level of pain- free functioning had not improved. The pain in the back of his head and neck caused increased spasms of the neck and shoulder muscles which feeds into the cycle of spasm-pain- spasm generally associated with chronic pain syndromes. Therefore, the headache triggers neck, shoulder and back pain that markedly disables the veteran. His prognosis was guarded at best and he continues to be disabled at home with no improvement of the condition while still working. During his personal hearing in February 1993, the veteran described the injuries to his head and neck incurred during service. He noted the treatment with occipital nerve blocks. He described the headaches as persistent and constant, some feel more painful than others do, and that it "feels like there is a dome up there", and that he uses the TENS unit to relax the muscles. He is able to distinguish the headache pain from the head injury from the neck pain resulting from the injury to his spine. On VA examination of June 1996, the examiner indicated that cranial nerves II through XII were normal. The examiner reported an impression of chronic tension type headaches that can be exacerbated by his PTSD and anxiety. In an addendum, it was noted that an MRI of the thoracic and cervical spine as well as the craniocervical junction was normal. A VA examination was conducted in December 1997, and the examiner was asked to report on any neurological deficits related to low back and cervical arthritis, as well as comment on any relationship between the headaches and neck disability. The examiner indicated that cranial nerves II through XII were normal. The examiner reported an assessment of chronic tension headaches, and determined that they were not related to the cervical spine pathology. Legal Analysis The veteran's claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (Court) has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a) (1998). Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This decision will include a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disabilities at issue. Increased Evaluation for Service-Connected PTSD Service connection is currently in effect for PTSD, and a 70 percent evaluation is assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998). Since the initial grant of service connection for PTSD, amendments were made to the rating criteria used to evaluate the service- connected disability at issue. The rating criteria took effect in early November 1996. The Court has stated that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the recently amended or previous rating criteria may be the version most favorable to the veteran. Therefore, the veteran should be afforded the opportunity to have his case reviewed under the most favorable criteria. The Court has further stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must consider the question of adequate notice of the Board's action and an opportunity to submit additional evidence and argument. If not, it must be considered whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In addition, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9 (1996), specifying the action to be taken. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Here, the Board acknowledges that the most recent supplemental statement of the case, dated in August 1998, addressed the new rating criteria. Therefore, the veteran has been informed of the new criteria and their application. In this matter, the Board finds that both the old and new criteria are favorable to the veteran, and that their application would result in the assignment of a 100 percent rating. Under the new criteria, a 70 percent evaluation is assigned when there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is assigned when there is 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Clearly from the most recent reports submitted, particularly from the veteran's treating VA psychiatrist, it has been determined that the veteran's PTSD symptoms are of such severity that they affect his ability to maintain employment. The evidence also shows that, with the exception of his wife and family, his PTSD symptoms have also resulted in his isolation from others. It is clear from the reported findings noted in the medical record and VA examination reports that the veteran does not display a majority of the other symptoms considered for a 100 percent rating. However, one of the symptoms considered for a 100 percent rating includes persistent delusions or hallucinations, and the findings noted in the medical and examination reports are consistent with regard to the veteran's ongoing problems with auditory and visual hallucinations. Therefore, there is a question as to which of the evaluations should apply. 38 C.F.R. § 4.7 (1998). Under the old criteria, a 70 percent rating was assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. With regard to the old criteria, as noted above, it is clear from the evidence that the veteran does not have relationships with individuals outside of his own family. Therefore, the evidence indicates virtual isolation from the community. As discussed above, the most recent opinions offered indicate that the severity of the veteran's PTSD symptoms affect his ability to maintain employment. Given the opinions regarding the impact of the PTSD symptoms on the veteran's personal relationships and ability to work, there is a question as to whether "severe" adequately describes the degree of social and industrial impairment. Therefore, there is a question as to which of the two evaluations should apply. 38 C.F.R. § 4.7 (1998). Here, the preponderance of the evidence supports the grant of an increased rating of 100 percent for the veteran's service- connected PTSD. Therefore, the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) does not apply. Increased Evaluation for Service-Connected Cerebral Concussion Residuals Manifested by Headaches Service connection is currently in effect for cerebral concussion residuals manifested by headaches under DCs 8045- 8100. DC 8045 contemplates brain disease due to trauma, and ratings are assigned under DC 8100 for migraines. Under DC 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045- 8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (1998). As discussed, the most recent findings show that other than the actual headache pain, there are no seizures, multi- infarct dementia or severe dementia of the multi-infarct type. As noted on VA examination in 1997, the headaches are exacerbated by the veteran's PTSD and anxiety and are considered chronic tension headaches. It was also determined that there was not a relationship between the headaches and the cervical spine disability. Given the findings noted in the medical records, it has not been shown that there is a purely neurological disability, such as hemiplegia or seizures, resulting from brain trauma, that would be ratable at a level in excess of 10 percent under alternate criteria under DCs 8045 to 8207. Primarily, the veteran's disability consists of the purely subjective complaints such as headache pain, recognized as symptomatic of brain trauma under DC 8045, which allows a rating of 10 percent and no more under diagnostic code 9304. The Board notes that since the time the veteran filed his claim for increase, there has been a change in regulations with respect to the rating criteria to be utilized in the rating of dementia due to head trauma under DC 9304. While it is true that where the law or regulation changes after a claim has been filed or reopened, but before administrative or judicial process has been concluded, the version most favorable to the veteran will be applied, unless Congress provided otherwise, or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 312- 13 (1991). In this matter, despite the changes to DC 9304, no change involving 38 C.F.R. § 4.124a, DC 8045, has been effected and it is such regulation, without regard to the current or former version of DC 9304, that is dispositive of this matter. As discussed, a rating in excess of 10 percent is assigned under DC 8045 only when there is a showing of multi-infarct dementia from brain trauma. As demonstrated by the evidence of record, that requirement has not been met. Therefore, further discussion of the changes brought about by the revision of 38 C.F.R. § 4.130, DC 9304, effective from November 7, 1996, is not necessary. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available DCs and the medical evidence of record, the Board finds that DCs other than 8045, do not provide a basis to assign an evaluation higher than the 10 percent evaluation currently in effect. DC 8100 contemplates migraines, and a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The evidence does show that the veteran complains of constant headaches generally brought on by stress. However, the findings noted in the medical records and examination reports do not suggest that the headaches could be described as characteristic prostrating attacks required for a 30 percent rating under DC 8100. In light of the application of the available rating criteria, the Board finds that the veteran's disability picture does not approximate the criteria necessary for a higher disability evaluation. 38 C.F.R. § 4.7 (1998). Likewise, the provisions of 38 U.S.C.A. § 5107(b) (West 1991) are not for application in this case as the Board has determined that an approximate balance of negative and positive evidence is not presented by the evidence. Therefore, the preponderance of the evidence is against the veteran's claim, and an increased evaluation for cerebral concussion residuals manifested by headaches is not warranted. ORDER Entitlement to a 100 percent evaluation for service-connected PTSD has been established, and to that extent, the appeal is granted, subject to regulations applicable to the payment of monetary benefits. Entitlement to an evaluation greater than 10 percent for service-connected cerebral concussion residuals manifested by headaches has not been established, and to that extent, the appeal is denied. REMAND Increased Evaluation for Service-Connected Low Back Strain The veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). From a careful review of the evidence in this case, the Board has determined that there is additional development that must be completed by the RO in order to fulfill this statutory duty prior to appellate review of the veteran's claims. Under appropriate circumstances, the duty to assist includes conducting a thorough and contemporaneous medical examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that a Diagnostic Code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibited weakened movement, excess fatigability or incoordination; if feasible, these determinations were to be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. In this case, the most recent examination was conducted in June 1996, and the examiner reported ranges of motion for the lumbar spine. However, the examination is inadequate given the Court's guidance in DeLuca. Therefore, another examination is in order. Under the circumstances of this case, the Board has determined that additional assistance is required. The case is therefore REMANDED to the RO for the following development: 1. The RO should request that the veteran identify all sources of medical treatment recently received for his low back disability, and that he furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. The veteran should also be asked specifically to list any physical therapy treatment he has received for his low back. Copies of the medical records from all sources he identifies, and not currently of record, should then be requested and associated with the claims folder. 2. The veteran should be afforded a VA orthopedic examination to determine the nature and severity of his service- connected low back strain. Such tests as the examining physician deems necessary should be performed. The examination should include complete observations of the range of motion of the affected area. All findings should be reported. The orthopedic examiner should also be asked to determine whether the lumbar spine exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected disabilities; and if feasible, these determinations should be expressed in terms of the degree of additional ranges of motion loss due to any weakened movement, excess fatigability, or incoordination. The orthopedic examiner should be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or repeated use over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional ranges of motion loss due to pain on use or during flare-ups. The examiner should also record any objective displays of pain. The examiner should identify manifestations of the veteran's service-connected low back strain and distinguish those manifestations from any coexisting nonservice-connected disabilities. The claims folder must be made available to the examiner for review before the examination. 3. The RO should adjudicate the claim of entitlement to an increased evaluation for service-connected low back strain in light of DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 3.321(b), 4.40, 4.45 (1998). If the determination remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford the veteran due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. R. E. SMITH Acting Member, Board of Veterans' Appeals - 23 - - 1 -