Citation Nr: 0005782 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-26 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Whether new and material evidence has been presented to reopen a claim for service connection for a chronic acquired psychiatric disorder, to include as secondary to the veteran's service-connected degenerative disk disease of the lumbosacral spine. Entitlement to service connection for a cervical spine disorder. Entitlement to service connection for migraines. Entitlement to an increased rating for degenerative disk disease of the lumbosacral spine, currently evaluated 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had periods of active service from March 1970 to October 1971 and from September 1990 to November 1991. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in February 1995 which denied the claimed benefits. The February 1995 rating decision also denied a compensable rating for gastritis. Although the veteran initially appealed that determination, he formally withdrew his appeal of that issue in communication received in October 1999. That issue, therefore, is no longer before the Board for appellate consideration. The issue concerning an increased rating for the veteran's service-connected low back disability will be addressed in the Remand that follows this decision. FINDINGS OF FACT 1. A rating decision in June 1993 denied service connection for a psychiatric disorder. The veteran did not complete his appeal of that determination. 2. Evidence added to the record since June 1993 shows that the veteran either may have post-traumatic stress disorder that is related to service or depression that was caused by or aggravated by his service-connected lumbar spine disability. That evidence is new and is so significant that it must be considered to fairly decide the merits of the veteran's claim for service connection for a psychiatric disorder. 3. The claim for service connection for a cervical spine disorder is not plausible. 4. The evidence does not show that the veteran has migraines that resulted from an injury or disease in service. CONCLUSIONS OF LAW 1. Evidence received since the final June 1993 rating decision, which denied the veteran's claim for service connection for a chronic acquired psychiatric disorder, is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.302, 20.1103 (1999). 2. The claim for service connection for a cervical spine disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. Migraines were not incurred in or aggravated by service; nor are they proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background The service medical records are completely negative for any clinical findings or diagnosis of any chronic acquired psychiatric disorder. The records are also negative for any psychiatric complaints, although the veteran did report in January 1991 that he was a "nervous wreck" because of the pain, lack of sleep, and other problems he had had due to his back and gastrointestinal disabilities. An April 1991 service department record notes the veteran's complaints of severe sinus headaches. The examiner noted tenderness of the right frontal sinus; the examination was otherwise negative. The listed diagnosis was possible sinus drainage. The veteran was seen in September 1990 for complaints of sinus congestion of 3 days' duration that he had had for 5 years. Another outpatient record (possibly in April 1991) reflects the veteran's report of headache pressure on the right side of his head every spring; only that year the symptoms were different in that he also had spots in his vision and dizziness that occurred with stress, lasting for 3-4 days; the examiner's assessment was sinus congestion. The service medical records are completely negative for any complaints, clinical findings, or diagnosis indicative of any cervical spine disorder. The report of a VA compensation examination in October 1991 notes an undiagnosed neuropsychiatric disorder, manifested by intrusive thoughts of encounters with cobras during his duty in Saudi Arabia during the Gulf War. VA treatment records dated in October and November 1991 (while the veteran was still in service) reflect his difficulty with sleep and show that medication for sleep was prescribed. An October 1991 examiner recorded the veteran's complaints of pain, suicidal ideation, insomnia, and depression with crying spells, worsening over the previous year since his back injury. On examination, his mood was depressed and his affect was flattened. No other abnormal psychiatric clinical findings were reported. The listed diagnosis was adjustment reaction with depressed mood, rule out major depression. On referral to the mental health clinic in November 1991, the referring examiner noted "R/O major depression vs. adjustment disorder." The psychiatric examiners' impression was adjustment disorder with depressed mood; sleep medication was prescribed. A December 1991 psychiatric examiner noted that the veteran's symptoms had subjectively improved, although he did complain of anhedonia and crying spells. The examiner diagnosed "[? Major] depression. Features associated with PTSD [post-traumatic stress disorder]." A March 1992 VA examiner noted the veteran's complaints that, in addition to his back pain, he also had pain in his coccyx, neck, and shoulder. The examiner stated that "Although this man's problems all stem from accident in Saudi Arabia, this cannot explain all his problems (R) shoulder, neck, etc. These require investigation." A VA orthopedic compensation examination was conducted in November 1992. Cervical spine motion was normal, except for 20 degrees of lateral flexion in each direction. The veteran reported moderate to severe pain prior to reaching the stated limits of range of motion. No other clinical findings or diagnosis regarding the cervical spine was listed. In communication received from the veteran in January 1993, he attributed his nervous disorder to his service-connected degenerative disk disease. A January 1993 VA psychiatric examiner recording the veteran's report of living with chronic pain and discouragement, insomnia, and depressed mood. Noting the veteran's chronic major depression and service-connected degenerative disk disease, and his recent award of Social Security disability benefits, the examiner stated that the "vet is obviously unemployable, & data support a status of permanent & total disability ever to be gainfully employed." He prescribed antidepressant and anti-anxiety medications and diagnosed major depression secondary to the veteran's service-connected "degenerative joint disease." The file contains a Social Security Administration (SSA) award letter, dated in February 1993, that found, apparently on the basis of the above VA records, that the veteran was entitled to SSA disability benefits beginning in November 1991. At the time of a VA psychiatric compensation examination in March 1993, the veteran reported that he had recurrent nightmares of his Vietnam experiences and added, "I will never be able to leave there." He stated that he often woke up screaming and felt edgy and that loud noises frightened him. The veteran reported that his heart had stopped during a cardiac catheterization during service. He described his spirits as being very depressed and stated that he cried a lot for no reason. He indicated that he was seen in 1989 for depression at a time that he was considering suicide. The examiner noted that he walked with the help of a cane. He was alert and cooperative, but generally low-keyed. There were no signs of psychosis. The examiner diagnosed adjustment disorder with depressed mood. A VA orthopedic compensation examination was also conducted in March 1993. The examiner indicated that the veteran had previously been evaluated at Ft. Campbell for cervical spine disease, as he was having some pain in his upper back and neck area and was found to have some degenerative disease in that area. The examiner stated that the veteran did appear to have some symptoms in that area, although they were not nearly as bad or disabling as those symptoms in his lower back. It was not considered to be a major problem in terms of the veteran's overall disability. A June 1993 rating decision denied, inter alia, service connection for an acquired psychiatric disorder. The veteran filed a notice of disagreement with that determination in July 1993 and a statement of the case was issued in August 1993. A substantive appeal as to that issue was not received. In communications from the veteran subsequently, he raised the issue of service connection for headaches and a cervical spine disorder due either to the in-service accident in Saudi Arabia or to the service-connected back disability. A VA outpatient record dated in June 1994 notes that CT scan of the veteran's head and cervical spine in April 1994 had shown no intracranial abnormalities, but a calcified herniated disk at C3-4. In January 1995, the veteran submitted duplicate copies of VA mental health clinic records dated in December 1992 and January 1993, and referred to his PTSD or nervous condition. Also in January 1995, the veteran submitted a statement from his wife. She described the deterioration she had noted in his physical and mental state since his return from the Gulf War, including his being in constant pain, with increased irritability, impatience, and violent behavior. A VA compensation examination was conducted in January 1995. The examiner noted that the veteran reported that his headaches began in February 1991 and he was told that they were "cluster headaches." He indicated that he took muscle relaxants for the headaches, which occurred daily and were severe, but "they never go away." The veteran indicated that a Florida physician had thought that the calcified herniated nucleus pulposus in his cervical spine was causing his headaches. The veteran also indicated that he got pain in both shoulders and numbness in his hands quite often. On examination of the veteran's neck, there was no crepitus. The veteran indicated that there was tenderness in the lower left posterior neck area. Extension of the cervical spine was possible only from 0 to 2 degrees and the veteran was noted to cringe with pain in the lower neck. He could flex his neck from 0 to 27 degrees, again cringing with pain. Right lateral flexion was accomplished from 0 to 5 degrees, left lateral flexion from 0 to 10 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 45 degrees, each motion with pain in the lower posterior neck. Upper extremity strength was weak, but the examiner stated that the veteran appeared to make little effort "because it hurts in my back." X-rays of the cervical spine reportedly revealed spondylosis, but was otherwise normal. The examiner commented that the physical examination was normal, except for some limitation of motion at the neck, but cervical spine x-rays had not shown any disk herniation or calcification. He stated that it was very difficult to determine the cause of the veteran's headaches. A VA psychologist evaluated the veteran in August 1995. He noted the veteran's complaints of forgetfulness, difficulty with concentration, and poor reading retention. After extensive psychological testing, the examiner stated that the tests were consistent with a severe level of depression and the veteran's reported recurrent thoughts of suicide. The examiner noted the veteran's various medications and recommended 1) a review of his medication regimen as a possible cause for the depression, 2) referral to a psychiatrist for evaluation and treatment of his depression, and 3) referral to the pain program. Also in August 1995, the veteran was evaluated by a VA neurologist. The examiner noted the veteran's complaints of neck pain that produced varying degrees of headache, as well as pain that radiated into his upper extremities. On examination, there was decreased range of cervical motion due to pain and paraspinous muscle spasm. The examiner reported some global decrease in upper extremity motor power due to pain, with greater decrease in grip strength and wrist extension on the left. No fasciculations or obvious muscle atrophy was noted. There was tenderness over the upper vertebral spinous processes and the occipital ridge. The examiner commented that the veteran's symptoms were of cervical radiculopathy, but he did not ascribe any etiology for the disorder. A VA mental health clinic examiner noted in December 1995 that, of the "list of PTSD symptoms," the veteran had difficulty falling asleep, nightmares (with a war theme), angry outbursts, difficulty concentrating, hyperventilation, avoidance of thoughts associated with trauma, and avoidance of "activities." The listed Axis I diagnoses were rule out PTSD (post-traumatic stress disorder) and depression NOS (not otherwise specified). Another psychologist in December 1995 listed an Axis I diagnosis of rule out PTSD and an Axis III diagnosis of pain disorder associated with a general medical condition. Another psychologist reported in January 1996 that the veteran experienced significant anxiety and depression that had been problematic since Vietnam, but had been exacerbated since his back injury. In June 1996, an examiner noted the veteran's complaints of pain in his joints, neck and low back and his statement that cervical traction helped the pain. He also stated that the veteran's depression was "up and down." An etiology for the cervical spine disorder and the depression was not given. The veteran testified at a personal hearing before a hearing officer at the RO in June 1996. He described his duties as a crew chief on helicopter repair in Vietnam, but denied having sustained any injuries during his first period of service or during the time between his periods of service. He indicated that he first had trouble with headaches after he fell from a truck in Saudi Arabia in November 1990. The veteran reported that he "experienced a tremendous amount of low back pain, leg pain, and shoulder, and everything." He denied striking his head or neck at the time of the injury. He stated that, although he experienced neck and shoulder pain after the injury throughout the remainder of service, he did not receive any treatment for headaches or the neck injury. The veteran testified that after service he continued to have neck problems and headaches and was treated with a cervical collar, although the headaches became more frequent. He subsequently used cervical traction as well. He indicated that he had recently been treated for suicidal ideation that resulted from the "pain and anginous [sic] and frustration and self pity and hopelessness of taking care of myself and my family." In addition, the veteran reported that his psychiatric disability had been variously diagnosed, but that he was currently being treated for depression. He recalled being treated in the mid-1970s for alcohol abuse and emotional problems. He indicated that, although he had previously complained of headaches, they weren't diagnosed as migraines until late 1992 or early 1993. A VA orthopedic compensation examination was conducted in April 1998 to evaluate the veteran's service-connected low back disability. The examiner indicated that the veteran's complaints remained the same, with headaches, shoulder pain, and numbness down his right arm. No clinical findings regarding the cervical spine were reported. Analysis New and material evidence regarding service connection for a chronic acquired psychiatric disorder Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the denial of an appellant's claim or absent the filing of a substantive appeal within the remainder of that year or within 60 days of the mailing of the statement of the case, whichever is later, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In order to reopen a previously and finally disallowed claim, the United States Court of Appeals for Veterans Claims (Court) has indicated that a three-step analysis is required. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The first step is to determine whether new and material evidence has been presented or secured since the time that the claim was previously and finally disallowed on any basis. It should be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, evidentiary assertions by the appellant must be accepted as true for these purposes, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). Lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). If new and material evidence has been received, then the Secretary must immediately proceed to the second step, involving a determination as to whether, based on a review of all of the evidence, both old and new, the claim is well grounded. If it is determined that the claim is well grounded, then the analysis proceeds to the third step, i.e., evaluating the merits of the claim, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence of record at the time of the June 1993 rating decision that denied service connection for a psychiatric disorder showed complaints of depression by the veteran, but the diagnosis assigned by most examiners was adjustment disorder with depressed mood. Service connection was denied on the basis that no chronic acquired psychiatric disorder was shown by the record. Although the veteran initiated an appeal of that decision, he did not complete the appeal. Evidence added to the record since June 1993 includes an August 1995 report by a VA psychologist that noted the veteran's severe level of depression and indicated that his medication regimen should be reviewed as a possible cause. In addition, VA mental health clinic records in December 1995 reflect diagnoses of "rule out PTSD." One psychologist indicated that the veteran had experienced significant anxiety and depression since Vietnam that had been exacerbated by his back injury. Those medical reports provide further diagnoses of a current acquired psychiatric disorder (although some examiners had previously diagnosed depression) and that evidence indicates that the current psychiatric disorder may be related either to service or to treatment for the veteran's service- connected back disability. The evidence added to the record since June 1993, while reflecting some psychiatric diagnoses that were previously shown, clearly contributes to a more complete picture of the veteran's psychiatric disorder and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. It is material to the question of service connection. Therefore, the Board concludes that new and material evidence has been presented and that the veteran's claim for service connection for a chronic acquired psychiatric disorder, to include as secondary to his service-connected degenerative disk disease of the lumbosacral spine, is reopened. Next, the Board must determine whether or not the veteran has presented a well grounded claim for service connection for a psychiatric disorder. A person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); see also Carbino v. Gober, 10 Vet. App. 507 (1997). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992), the United States Court of Appeals for Veterans Claims (Court) held that a claim must be accompanied by supportive evidence and that such evidence "must justify a belief by a fair and impartial individual' that the claim is plausible." For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Only the evidence in support of the claim is to be considered in making that determination and, generally, a presumption of credibility attaches to that evidence. Epps v. Brown, 9 Vet. App. 341, 343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board finds that the evidence added to the record since June 1993, at least that which alludes to a connection between the veteran's depression and medication for his service-connected back disability, meets the criteria set forth in Epps and Caluza in that it presents a claim that is plausible. Therefore, the Board concludes that the veteran's claim for service connection for a chronic acquired psychiatric disorder, to include as secondary to his service-connected degenerative disk disease, is well grounded. 38 U.S.C.A. § 5107(a). This issue will be addressed further in the Remand that follows this decision. Service connection ? Cervical spine disorder The service medical records are completely negative for any complaint, clinical findings, or diagnosis of a cervical spine disorder. They do not show that he sustained an injury to his cervical spine in 1990 when he injured his lumbar spine, and indeed the veteran himself has testified that he did not. The evidence shows that the veteran first expressed complaints regarding his neck to a VA examiner in March 1992. Although that examiner did not report any clinical findings, he did state that the accident that the veteran sustained in Saudi Arabia could not explain his right shoulder and neck pain. A CT scan of the veteran's cervical spine in June 1994 revealed a calcified herniated disk at C3-4. VA examiners in January and August 1995 reported significant limitation of cervical spine motion, with apparent severe neck pain, and upper extremity weakness, although the veteran appeared to make little effort. Cervical spine x-rays in January 1995 reportedly showed spondylosis, but were otherwise normal. Neither examiner offered an opinion as to the etiology of the cervical spine disorder. While the evidence clearly shows that the veteran currently has a cervical spine disorder, there is no evidence that he injured his cervical spine during service, nor is there any medical evidence that his current cervical spine disorder is related in any way to service or, as he has claimed, to his service-connected lumbar spine disability. Lacking evidence of a cervical spine injury or disease in service or of a nexus between the current disorder and service or a service-connected disability, the second and third criteria in Epps and Caluza are not met. Accordingly, the veteran's claim for service connection for a cervical spine disability is not plausible and so must be denied as not well grounded. 38 U.S.C.A. § 5107(b). ? Migraines The Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Each disabling condition shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1999). With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of symptomatology in service will permit service connection of a chronic disease, first shown as a clear-cut clinical entity, at some later date. For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). See also Savage v. Gober, 10 Vet. App. 488 (1997). The service medical records indicate that the veteran was treated on occasion for headaches that were attributed to sinus congestion. The post-service medical records are completely negative for any complaints or clinical findings reflecting any sinus ailment or headaches due to a sinus disorder. At the time of a VA compensation examination in January 1995, the veteran reported that he had been variously told that his headaches were "cluster headaches" and that his calcified herniated cervical disk was causing the headaches. He also stated that he was taking muscle relaxants for the headaches. The VA examiner commented that it was very difficult to determine their etiology. At his personal hearing, the veteran denied striking his head at the time of the 1990 back injury. He stated that, although he had had headaches since the incident in 1990 and had previously complained of headaches, they were not diagnosed as migraine headaches until late 1992 or early 1993. While the veteran has stated that he had trouble with headaches during service after his 1990 back injury, the service medical records reflect complaints of headaches that were attributed at that time to sinus congestion. There is no post-service medical evidence of any sinus problems whatsoever. In addition, although the veteran has indicated that he has had headaches since service, the medical records do not reflect any post-service headache complaints until 1995. Moreover, no examiner after service has attributed the veteran's headaches to his in-service back injury or otherwise to service. To the contrary, the evidence indicates that his headaches were diagnosed as "cluster headaches" (per the veteran's testimony) or were felt to be due to muscle tension caused by a non-service-connected cervical spine disorder, for which muscle relaxants were prescribed. The Court in Savage held that a claimant's report of continued symptomatology might, in some instances, provide sufficient evidence to find a claim well grounded. In this case, however, even accepting the veteran's report that his headaches have continued since service, the medical evidence does not show that his current headaches are causally related to an injury or disease that he sustained during service. In fact, as noted above, the medical evidence indicates just the opposite-that the headaches are related to a non-service- connected cervical spine disorder. Therefore, the Board finds that the preponderance of the evidence is against a conclusion that the veteran's headaches are related to service. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been presented, the claim for service connection for a chronic acquired psychiatric disorder, to include as secondary to the veteran's service- connected degenerative disk disease of the lumbosacral spine, is reopened. That claim is well grounded. The claim for service connection for a cervical spine disorder is denied as the claim is not well grounded. Service connection for migraine headaches is denied. REMAND Because the Board has herein found that the veteran's claim for service connection for a chronic acquired psychiatric disorder has been reopened and is well grounded, VA has a duty to assist him in developing evidence in support of his claim. 38 U.S.C.A. § 5107(b). In that regard, the Board notes that medical evidence in the file indicates either that a diagnosis of post-traumatic stress disorder (PTSD) might be appropriate, based on the veteran's symptoms, or that he has chronic depression that may have resulted from medication for his service-connected low back disability. In light of that evidence, a psychiatric examination and opinion would be helpful in adjudicating the veteran's claim. Also, the veteran's representative, in a Brief on Appeal in October 1999, specifically requested consideration of an extraschedular rating in regard to the veteran's claim for an increased rating for his service-connected degenerative disk disease of the lumbosacral spine. Further, the Board notes that the veteran had previously sought VA Vocational Rehabilitation because of his service-connected back disability, at which time it was determined that he had an employment handicap, and he has indicated that he has been unemployed because of disability since 1990. In addition, VA psychiatric and orthopedic examiners have commented that the veteran was either obviously unemployable or probably unable to participate in a program of Vocational Rehabilitation. To the extent that the above evidence may indicate that application of the rating schedule may provide an inadequate assessment of the veteran's service-connected low back disability, and considering the veteran's representative's request, the Board believes that consideration should be given to whether an extraschedular rating for the disability might be appropriate. The Board notes, however, that the RO has not provided the veteran with the substance of 38 C.F.R. § 3.321(b) to enable him to present evidence and cogent argument concerning such a rating, nor does the record reflect that the RO has considered whether an extraschedular rating might be appropriate. The Court has held that the Board does not have the authority to consider and deny a claim for an extraschedular rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Accordingly, the RO must have the initial opportunity to determine whether the evidence warrants referral of the case to VA's Undersecretary for Benefits or the Director, Compensation and Pension Service for consideration of assignment of an extraschedular rating. Therefore, this case as to this issue is REMANDED for the following additional actions: 1. With any needed signed releases from the veteran, the RO should request copies of up-to-date records of any examination or treatment, VA or non- VA, that the veteran has received for a psychiatric disorder or the service-connected low back disability. All records so received should be associated with the claims file. 2. The RO should conduct any further evidentiary development deemed appropriate by the RO from the record, e.g., regarding a diagnosis of PTSD. 3. The RO should then schedule the veteran for a psychiatric examination. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All special tests that are felt by the examiner to be relevant, including psychological testing, should be completed. The examiner's report should describe in detail all current psychiatric complaints, clinical findings, and diagnoses. Also, the examiner should be requested to provide opinions as to whether 1) a diagnosis of PTSD is supported by the record, considering stressors that have been verified in the record, and 2) any other current psychiatric disorder resulted from or was aggravated by a service-connected disability or by treatment for such a disability. All opinions should be supported by reference to pertinent evidence in the claims file. 4. Upon completion of the requested development of the record, the RO should again consider the veteran's claim for service connection for a chronic acquired psychiatric disorder and his claim for an increased rating for degenerative disk disease of the lumbosacral spine, including determining whether the evidence warrants referral of the case to VA's Undersecretary for Benefits or the Director, Compensation and Pension Service for consideration of assignment of an extraschedular rating. If action taken remains adverse to him, he and his accredited representative should be furnished with a supplemental statement of the case and they should be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. 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. 1999) (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. C. W. Symanski Member, Board of Veterans' Appeals