Citation Nr: 1757571 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-03 973A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degeneration of the cervical spine at C4-C5. 2. Whether a timely substantive appeal was received with respect to the 30 percent rating assigned by an August 2009 rating decision granting service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a rating in excess for 30 percent for PTSD. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: David Anaise, Attorney at Law ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2005 to January 2006, and from August 2006 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of August 2009, July 2013, and February 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The August 2009 rating decision granted service connection for PTSD and assigned a 30 percent disability rating with an effective date of November 19, 2007. The July 2013 rating decision determined that the Veteran had failed to submit a timely substantive appeal with respect to the August 2009 rating decision concerning PTSD. The February 2014 rating decision increased the rating assigned for the Veteran's service-connected neck disability from 10 percent to 20 percent, with an effective date of April 30, 2013. By a filing of March 2015, the Veteran waived initial review by the agency of original jurisdiction (AOJ) of any new evidence submitted in the case. For the issues appealed after February 2, 2013 (entitlement to an increased rating for neck disability, entitlement to a TDIU, and timeliness of substantive appeal), waiver of initial review of additional evidence by the regional office will be presumed absent a specific request by the Veteran for initial AOJ review of the evidence. For the issue of entitlement to an increased rating for PTSD (appealed by a filing of October 2012, as discussed below), the additional evidence is accepted for inclusion in the record on appeal. See 38 U.S.C. § 7105(e) (2017); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154 , 126 Stat. 1165. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017). The issues of entitlement to a rating in excess of 20 percent for degeneration of the cervical spine at C4-C5 and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A rating decision of July 2008 denied service connection for PTSD. 2. On the basis of new information submitted within one year of the July 2008 rating decision, a rating decision of August 7, 2009 granted service connection for PTSD and assigned a 30 percent disability rating and an effective date of November 19, 2007. In July 2010, the Veteran filed a timely notice of disagreement (NOD), and a statement of the case (SOC) was issued on September 19, 2012. 3. On October 5, 2012, the Veteran submitted a timely substantive appeal with respect to the initial rating assigned by the August 2009 rating decision for the grant of service connection for PTSD. 4. For the entire period under review, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity manifested by panic attacks several times per week, irritability and disturbances of mood, hypervigilance, sleep difficulty, irritability, and intrusive thoughts. An overall level of severity showing occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation, illogical speech, or neglect of personal appearance and hygiene is not shown or approximated. CONCLUSIONS OF LAW 1. The Veteran's substantive appeal of the initial rating assigned for the grant of service connection for PTSD is timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202; 20.302 (2017). 2. For the entire period under review, the criteria for the assignment of a disability rating of 50 percent, and not higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits are found. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. Absent extraordinary circumstances, it is appropriate for the Board to address only those procedural arguments specifically raised by the claimant. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran. The evidence of record consists of service treatment records, service personnel records, VA and private treatment records, and statements of the Veteran. The Veteran underwent VA examinations in May 2008, July 2009, August 2010, and September 2012. The VA examination reports describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has not identified any outstanding evidence that could be obtained with respect to the claim and the Board is unaware of any such evidence. VA does not have a duty to assist with respect to whether the Veteran timely filed a timely substantive appeal, as the issue involves an inquiry based upon the correspondence of record rather than the development of new evidence. See Parker v. Principi, 15 Vet. App. 407, 412 (2002). In any event, because the Board's decision (that a timely substantive appeal was filed) is fully favorable to the Veteran on that issue, any error with respect to a duty to assist would be harmless. Timeliness of Substantive Appeal The Veteran's May 2008 claim for service connection for PTSD was denied by a July 2008 rating decision. On the basis of new information submitted within one year of the rating decision, a rating decision of August 7, 2009 granted service connection for PTSD and assigned a 30 percent disability rating and an effective date of November 19, 2007. The Veteran filed a timely notice of disagreement in July 2010 with respect to the disability rating, and an SOC was issued on September 19, 2012. The cover letter to the SOC informed the Veteran and his representative that an appeal could be completed by filing VA Form 9, which was enclosed, within 60 days. By a filing of October 5, 2012, the Veteran's recently appointed attorney stated in part: "We join [the Veteran] in any and all Notices of Disagreement he may have filed to any and all rating decisions issued in any and all of his VA disability claims, including the August 7, 2009, decision. We disagree with all the decisions made in that rating decision" (emphasis added). In July 2015, the RO notified the Veteran that a filing of April 30, 2013, having been filed more than 60 days following the issuance of the SOC of September 19, 2012, was not accepted as a timely substantive appeal with respect to the August 2009 rating decision. The notification letter did not mention the Veteran's filing of October 5, 2012. The Veteran argues that his filing of October 5, 2012 constitutes a timely substantive appeal under 38 C.F.R. § 20.202 in that it was "correspondence containing the necessary information." See appellate brief of December 2015. An appeal to the Board consists of the filing of a timely NOD in response to the decision being contested, the issuance of an SOC, and the filing of a timely substantive appeal. See 38 C.F.R. § 20.200 (2017). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. See 38 C.F.R. § 20.302(b)(1) (2017). There is no requirement that a substantive appeal be submitted on a VA Form 9. It has been held that 38 U.S.C. § 7105(d)(3) does not impose a particular format or degree of specificity for a claimant's appeal. See Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011). Under 38 C.F.R. § 20.202, a substantive appeal consists of a properly completed Form 9 or correspondence containing the necessary information. The Rivera court held that, although it may be reasonable to expect a veteran to identify the specific claim being appealed when multiple claims are addressed in the same decision, a claimant's expression of a desire to appeal from a regional office's decision effectively identifies the issue to be decided by the Board when only one issue is decided by the regional office and referenced in the SOC. Given the Board's obligation to read claimants' submissions liberally and to consider the full context of those submissions, an explicit statement of what is clearly expressed by a claimant's correspondence is not required under 38 U.S.C. § 7105 (d)(3). See Rivera, supra. The Board finds that a substantive appeal was filed within 60 days of the date of mailing of the SOC as required under 38 C.F.R. § 20.302 (b). The Veteran's filing of October 4, 2012 did not make specific argument relating to errors of fact or law allegedly made by the RO in the September 2012 SOC. It did, however, clearly express disagreement with the only issue decided by the September 2012 SOC, which was the determination that the Veteran was not entitled a rating greater than 30 percent for service-connected PTSD. The filing, made within 60 days of September 20th, 2012, thus met the requirements of a timely substantive appeal. See Rivera, supra. A statement of the case has already been issued as to entitlement to an increased rating for PTSD, and the Veteran has waived his right to initial AOJ review of newly submitted evidence. The increased rating issue has not been certified to the Board. Certification by the AOJ is an administrative procedure, and a failure to certify an issue does not deprive the Board of jurisdiction of a properly appealed issue, as here. See 38 C.F.R. § 19.35 (2017). Accordingly, the Veteran's October 2012 appeal with respect to the initial rating assigned for a PTSD disability is before the Board. Evaluation of PTSD Rating Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities. See 38 C.F.R. Part 4 (2017). The percentage ratings contained in the rating schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). A disability may require re-evaluation in accordance with changes in a veteran's condition. The level of current impairment must be considered in the context of the entire history of the disability. See 38 C.F.R. § 4.1 (2017). ). The Board must consider the application of "staged" ratings for diverse symptoms meeting the criteria for different ratings in distinct time periods. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). All mental disorders, defined by Diagnostic Codes 9201 through 9440, are evaluated pursuant to the rating schedule set out at 38 C.F.R. § 4.130. The Veteran's mental disorder has been rated under Diagnostic Code (DC) 9411 relating to PTSD. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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. A 100 percent evaluation is warranted where 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 of 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a) (2017). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126(b) (2017). The symptoms listed in the rating schedule for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). In evaluating psychiatric disorders, the VA has adopted and employs in the rating schedule the nomenclature based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM 5). See 38 C.F.R. § 4.130 (2017). The diagnosis of a mental disorder should conform to DSM-5. See 38 C.F.R. § 4,125(a) (2017). Diagnoses of record may contain an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score, made pursuant to the Fourth Edition of the DSM (DSM-IV). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging from 61 to 70 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). An examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. See VA General Counsel Precedential Opinion VAOPGCPREC 10-95. The Board will consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt must be given to the claimant. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) Analysis The Veteran seeks a higher rating than the 30 percent evaluation assigned by the August 2009 rating decision that initially grant of service connection for PTSD. The Board finds that, for the entire period under review, the overall severity, frequency, and duration of the Veteran's PTSD symptoms are consistent with the assignment of a higher rating of 50 percent but no more. VA treatment records of February 2008 reference hypervigilance, heightened startle response, memory impairment, and distractibility. The Veteran's mood was found to be highly variable and characterized by irritability, high levels of stress, and frustration. Poor frustration tolerance and being easily overwhelmed were characterized as severe. PTSD was diagnosed, and a GAF score of 65 was assigned. The Veteran underwent a VA examination in May 2008. The Veteran's symptoms relating to PTSD included insomnia, nightmares, flashbacks from combat situations, exaggerated startle response, hypervigilance, panic attacks, irritability, and social isolation. The severity of these symptoms was considered to be moderate, and the duration was chronic and continuous. The Veteran also experienced difficulties with concentration and mild memory impairment predominantly secondarily to PTSD. Other PTSD symptoms were anxiety, depressed mood, and significant sleep impairment. There was no impairment of thought process or communication, suicidal or homicidal ideation, impaired impulse control, or obsessive, ritualistic, or violent behavior. The Veteran was found to be able to maintain personal hygiene and basic activities of daily living independently, as well to manage his own financial affairs. The rate and rhythm of speech were normal. The Veteran was able to appropriately interact with others but engaged in few social activities. He was able to meet family responsibilities but was having difficulty meeting work demands and responsibilities. The GAF score was 65. See May 2008 VA examination report. In April 2008, the Veteran was noted anxiety attacks about twice per week, which occurred at any time without a precipitating event. He had a girlfriend and a social life but was depressed and often disinterested. The Veteran reported anger and irritability problems. He denied homicidal or suicidal ideation. He reported auditory hallucinations, such as hearing a radio playing or his name being called. He also experienced "emotional flashbacks," such as feeling concerned about an improvised explosive device when driving. A VA treatment record of May 2008 references the Veteran's report of irritability, frequent insomnia, and depressed mood, as well as panic attacks occurring several times each week. A June 2009 VA treatment record references objective signs of appearing very tired and depressed. The Veteran was found to have severe insomnia based on self-reporting, as well as very disturbing nightmares daily. The Veteran denied suicidal ideation. He was assessed as suffering from moderately severe depression. The Veteran underwent a VA examination in July 2009. The examiner, having reviewed the record, found only a very slight diminution in the intensity of the Veteran's symptoms upon current examination. Noted symptoms included trouble sleeping, trouble dealing with people, irritability, startle reaction, being on guard, flashbacks especially at night, nightmares twice per week, diminished concentration, and feeling emotionally cold and detached. There was no impairment of thought process. The Veteran's affect was slightly constricted. Communication was adequate. There were no delusions or hallucinations, impairment in personal appearance or basic activities of living, long-term memory deficit, ritualistic behavior, or impaired impulse control. The Veteran reported "occasional" panic attacks. He was assigned a GAF score of 58. A VA treatment record of August 2009 assigned a GAF score of 45. The PCL [Psychopathy Checklist] was 62, indicating "significant impairment from PTSD," and BDI [Beck Depressive Inventory] of 29 showed moderate depression. Another VA treatment record of August 2009 noted blunted affect, fair attention/concentration, and fair judgment/insight. The Veteran was found to have problems relating to the "social environment" as well as "readjustment problems." PTSD was diagnosed, and a GAF score of 50 was assigned. A VA treatment record of December 2009 noted good orientation, intact memory, and logical thought process. PTSD was diagnosed, and a GAF score of 65 was assigned. The Veteran underwent a VA examination in August 2010. The Veteran reported daily depression, severe irritability, daily intrusive thoughts about Iraq, anxiety in crowds, hypervigilance, and sleep disturbance. The Veteran remained in contact with his parents and was the primary caregiver of his nine-year-old son, with whom he lived. Upon examination, the Veteran was alert and oriented in all spheres and had speech within normal limits. No deficiencies of memory were noted. The Veteran's thought process was spontaneous and goal-oriented. Judgment and insight were good. PTSD was diagnosed, and a GAF score of 51 was assigned. In the examiner's opinion, the Veteran's PTSD symptomatology would have a moderate impact in his work environment if he were employed full-time. In such circumstances, the veteran's depressed and irritable moods would make it challenging for him to interact with coworkers in a positive manner. The Veteran underwent a VA examination in September 2012. The Veteran continued to parent his son and had regular contact with his mother, sister, and grandmother. He reported having few friends. Although able to interact with others appropriately, he rarely socialized. The Veteran managed all the activities of daily living and stated that he enjoyed tattooing, making jewelry, and drawing. He was attending college and had last worked in 2009. The Veteran reported mild-moderate, depressed mood and anxiety, moderate insomnia, and mildly poor concentration. There was no suicidal or homicidal ideation. Upon examination, the Veteran had good hygiene and appearance, normal behavior without mannerisms, normal speech, normal affect, euthymic mood, normal thought process, normal memory, and good judgment and insight. He denied auditory and visual hallucinations. He claimed to have lost 30 pounds between August 2011 and October 2011 due to poor eating patterns. The Veteran had anxiety, suspiciousness, and chronic sleep impairment due to PTSD. A GAF score of 70 was assigned. In the examiner's opinion, the course of the Veteran's PTSD symptoms and their effect on his functioning had remained primarily unchanged since the VA examination of 2008. The examiner also diagnosed traumatic brain injury (TBI). TBI was characterized by mild memory problems and problems with organization, while the Veteran's PTSD was characterized by irritability, nightmares, and hypervigilance. The Board finds that the evidence as a whole more nearly approximates the criteria for a 50 percent evaluation, but no higher, for PTSD for the period under review. As noted above, the Veteran has had panic attacks that occur several times per week. He has been socially isolated and had difficulty meeting work demands and responsibilities when employed. His irritability and poor frustration tolerance are severe. He has also experienced depression, anxiety, disturbances of mood, auditory hallucinations, and daily intrusive thoughts. He shows hypervigilance, exaggerated startle response, and significant sleep impairment. His GAF scores have ranged from a low of 45 in August 2009 to a high of 70 in September 2012. The Board notes that the VA examiner who assigned the highest GAF score of 70 in September 2012 also concluded that the Veteran's PTSD symptoms have remained essentially unchanged since 2008. No pattern of improvement is evident based on the GAF scores. The Board finds that the low GAF score of 45 does not reflect the Veteran's functioning with regard to his PTSD. It is not apparent upon what basis this low GAF score was assigned. The medical records generated before and after this assessment do not document such a level of impairment. Although separate evaluations may be assigned for separate periods of time based on the facts, the factual findings in this case do not show a distinct period where the service- connected disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (2001). The preponderance of the evidence is against finding symptomatology warranting a rating in excess of 50 percent. For example, the Veteran has not had homicidal or suicidal ideation. His speech and thought process is normal. There are no mannerisms, ritualistic behavior, neglect of hygiene, or an inability to establish and maintain effective relationships. While the Veteran has reported he had auditory hallucinations, there is no indication that these are persistent and certainly no indication that these reported hallucinations impact the Veteran's employability or social interactions. The Veteran has relationships with his son and other family members. He has been able to attend school. In light of symptoms of this type, the evidence does not more nearly approximate occupational and social impairment with deficiencies in most areas, as discussed above. ORDER The appeal as to whether a timely substantive appeal was received with respect to the rating assigned by an August 2009 rating decision granting service connection for PTSD is granted. Entitlement to an initial rating of 50 percent, and not higher, for PTSD is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND Cervical Spine The Veteran underwent a VA examination of the cervical spine in November 2013. The Veteran reported pain "spikes" and aggravation of pain when raising the right arm above shoulder level, lifting the right arm repeatedly, rotating the head/neck, and flexing/extending. Also noted was the Veteran's report of pain radiating to the right shoulder and periodic loss of sensation to the fingertips of the right hand. Despite this history provided by the Veteran, the examiner answered "no" to the form questions as to whether the Veteran experienced flare-ups or had radicular pain or any other signs or symptoms due to radiculopathy. The examiner further determined that pain, weakness, fatigability, or incoordination can significantly limit the Veteran's functional ability either during flare-ups or when the joint is used repeatedly over a period of time. The examiner was unable, however, to estimate the loss of range of motion or to describe the loss of function during flare-ups or when the joint is used repeatedly over time without resort to mere speculation. The explanation was that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. See November 2013 VA examination report. In Sharp v. Shulkin, No. 16-1385, decided September 6, 2017, the United States Court of Appeals for Veterans Claims clarified the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp found a VA examination to be inadequate because the examiner, although acknowledging that the appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the flare-ups by alternative means. The Board will remand for a VA examination that follows the guidelines of Sharp. Remand is also necessary in light of Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), which held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. The November 2013 VA examination report for the cervical spine does not reflect joint testing for pain on both active and passive motion. TDIU In an appellate brief of December 2015, the Veteran raised the issue of entitlement to a TDIU. A claim for a TDIU is part-and-parcel of a claim for rating increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue will be remanded for notice to be given to the Veteran and for the claim to be developed as appropriate. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with appropriate notice regarding the TDIU claim, and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Undertake appropriate development to obtain any outstanding VA or private treatment records relating to the remanded claims. 3. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his disability of the cervical spine, including all neurological manifestations. The Veteran's virtual claims file must be made available for the examiner's review prior to the examination. All testing necessary to rate the cervical spine and any associated disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner must indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing as appropriate. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. If the Veteran is not suffering from a flare-up of his cervical spine disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of any flare-ups in terms of range of motion on the basis of that information. If there is a medical basis to support or doubt the symptoms reported by the Veteran, the examiner should provide a reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After ensuring that the above development, and any other necessary development, has been completed to the extent possible, readjudicate the remanded claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond before the case is returned to the Board. The appellant and his representative have the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs