Citation Nr: 18154044 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 17-23 744 DATE: November 29, 2018 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a lumbar spine disability and the petition to reopen is granted. Service connection for a lumbar spine disability is granted. Service connection for bilateral upper extremity radiculopathy is granted. An effective date of June 21, 2015, but not earlier, for the grant of service connection for tension headaches, is granted. An effective date earlier than October 4, 2016, for the assignment of the 20 percent rating for status post compressed fracture of the fifth cervical vertebra (cervical spine disability), is denied. REMANDED Entitlement to an initial compensable rating for tension headaches is remanded. Entitlement to increased rating higher than 20 percent for the cervical spine disability is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In unappealed April 1998 and November 2002 rating decisions, the RO denied the Veteran’s claim for service connection for a lumbar spine disability. 2. The evidence received since the final rating decision in November 2002 relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability. 3. Resolving all doubt in favor of the Veteran, the competent and credible evidence of record is at least in equipoise as to whether his currently diagnosed lumbar spine disability was caused by his in-service motor vehicle accident. 4. Resolving all doubt in favor of the Veteran, the competent and credible evidence of record is at least in equipoise as to whether he has a current diagnosis of bilateral upper extremity radiculopathy that is secondary to his service-connected cervical spine disability. 5. On June 21, 2016, VA received the Veteran’s fully developed claim for compensation for headaches, and an effective date of June 21, 2015, is assigned for the award of service connection for a headache disability, which corresponds to the one-year prior to the date of receipt of the claim for compensation. 6. The evidence of record prior to October 4, 2016 does not show forward flexion for the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or kyphosis. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying the claim for service connection for a lumbar spine disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the November 2002 rating decision is new and material, and the claim of service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria to establish service connection for bilateral upper extremity radiculopathy on a secondary basis are met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The criteria for an effective date of June 21, 2015, but no earlier, for the grant of service connection for tension headaches are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 6. The criteria for an effective date earlier than October 4, 2016, for the assignment of the 20 percent rating for the cervical spine disability are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to March 1961. The Board notes that the issues of increased rating and earlier effective dates for the cervical spine and tension headaches disabilities were adjudicated together in the April 2017 statement of the case. Nevertheless, given the fact that the Veteran explicitly disagreed with both the assigned rating and the assigned effective date, the Board recharacterized the issues on appeal to reflect both issues separately. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a back disability in an April 1998 rating decision, finding that the injury in-service was to the neck and not back and therefore there was no evidence of a nexus. The evidence considered at the time included the Veteran’s service treatment records and a December 1997 VA examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the April 1998 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Thereafter, in May 2001, the Veteran sought to reopen his claim for service connection, and in a November 2002 rating decision, the RO continued to deny the claim, finding that there was no evidence of a nexus or medical evidence that the lumbar spine disability developed secondary to the service-connected cervical spine disability. The evidence considered at the time included the Veteran’s service treatment records, a July 2002 VA examination report and an associated September 2002 addendum, and the Veteran’s petition to reopen along with private treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the November 2002 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the November 2002 denial of the claim includes the Veteran’s June 2016 petition to reopen, VA treatment records, and a September 2018 private medical nexus opinion indicating that the Veteran’s lumbar spine disability was related to the injuries he sustained in-service. This evidence, specifically the positive medical nexus opinion, relates to the unestablished element of a nexus. The additional evidence received since the November 2002 final denial was not previously considered is therefore new, in addition to being material. The criteria for reopening the claim for service connection for a lumbar spine disability are therefore met. Service Connection Claim – Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Lumbar Spine The Veteran asserts that his currently diagnosed lumbar spine disability was the result of a motor vehicle accident he sustained in-service. The Veteran is currently diagnosed with bulging discs and degenerative joint disease of the lumbar spine. See e.g., December 1997 and September 2002 VA examination reports and September 2018 private medical opinion. A review of the Veteran’s service treatment records showed that in June 1960, he was involved in a motor vehicle accident, in which he struck his head on the back of the cab sustaining injuries to his neck. Although the documented medical evidence did not show treatment for a lumbar spine injury, the Board accepts the Veteran’s competent lay assertions that he hurt both his neck and back, but his neck was a more severe injury at the time. After a careful review of all the evidence, lay and medical, the Board resolves all doubt in the Veteran’s favor in finding that his currently diagnosed lumbar spine disability had its onset during active duty service and had been continuous ever since. In his October 1997 original claim for compensation, the Veteran indicated that he hurt both his back and neck as a result of the motor vehicle accident in-service. Thereafter, in December 1997, the Veteran underwent a VA examination for his spine, at which time the examiner rendered diagnosis of L4-L5 and L5-S1 bulging discs and degenerative joint disease of the sacroiliac joints. The Veteran reported that he was involved in a motor vehicle accident during active duty service, where he was at the back of a 2.5-ton truck and was hit, thrown, his body was thrown up in the air and he fell, which resulted in injuries to his cervical spine, to include dislocated vertebras, as well as injuries to his lower back. The examiner did not provide an opinion regarding the nature and etiology of the Veteran’s lumbar spine disability. Subsequently, a March 2001 private x-rays report revealed degenerative changes and bony demineralization; end plate sclerosis and loss of central heights in the vertebral bodies by degenerative discogenic disease; moderate anterolateral spondylosis; mild posterior narrowing of L5-S1 disc space; and, the lordotic curve was straightened as in muscle spasm. In a September 2002 addendum opinion, the VA examiner opined that the Veteran’s lumbar spine disability was not related to the motor vehicle accident he sustained in-service. The examiner explained that the accident report showed only injuries to the neck and not back, his separation examination was normal, and his claim for compensation was not until 36-years post service. The examiner further stated that the lumbar spine disability, diagnosed as bulging discs and degenerative joint disease was not secondary to his service-connected cervical spine disability. In a March 2018 affidavit, the Veteran indicated that he injured his back at the same time he fractured his neck, for which he is service-connected for. He further stated that he remembered having back pain at the time, but his neck was worse. In support of his claim, the Veteran submitted a private medical nexus opinion, in which the medical professional opined that it was more likely than not that the Veteran’s lumbar disc disease was secondary to his in-service motor vehicle accident. In support of the opinion, the medical professional cited to evidence in the claims file and medical literature that showed that the lumbar spine absorbed significant trauma when in a motor vehicle accident, and it was improbable to think that the Veteran was in a motor vehicle accident that impacted enough force to fracture his cervical vertebrae, yet spared his lumbar spine. Based on the foregoing, the Board finds that the evidence is at least in equipoise regarding the nature and etiology of the Veteran’s lumbar spine disability. Notably, the Veteran continuously and consistently reported that he sustained injuries to both his back and neck during the in-service motor vehicle accident. He competently reported back pain since service despite admitting that his neck pain was worse at the time. In addition, the September 2002 VA examiner solely relied on the fact that only neck injuries were documented during treatment after the reported motor vehicle accident and failed to consider the Veteran’s lay reports to the contrary. On the contrary, the private opinion demonstrated complete review of the record, examination of the Veteran, and referenced medical literature in support of the conclusion that the Veteran’s lumbar spine disability had its onset as a result of the in-service motor vehicle accident. Therefore, service connection for a lumbar spine disability is granted. Bilateral Upper Extremity Radiculopathy The Veteran asserts that he has a current diagnosis of bilateral upper extremity radiculopathy that is secondary to his service-connected status post compressed fracture of the fifth cervical vertebra. Resolving all doubt in the Veteran’s favor, the Board finds that he has a current diagnosis of bilateral upper extremity radiculopathy. See e.g., September 2018 private medical opinion. Private treatment records dated in November 1993 showed reports of frequent episodes of neck pain accompanied by numbness and cramps in the hands, bilaterally, but more severe on the left. After examination of the Veteran, the medical professional indicated that this was an abnormal median nerve somatosensory, and stated that the probable pathology was located at the proximal plexus, roots, and/or cervical cord. During a December 1997 VA examination, it was noted that although there was no objective evidence of weakness in the arms and legs, there was evidence of diminished reflexes in the right biceps and brachioradialis muscles. During a July 2002 VA examination for the cervical spine, the Veteran reported mild cervical pain with radiation to the back associated with constant numbness in both little fingers. VA treatment records dated in February 2016 indicated that the Veteran reported upper back pain radiating to both arms. The medical professional noted complaints of right side of neck pain and right shoulder and arm pain, with reports of occasional numbness and weakness in this area. In November 2016, the Veteran underwent a VA examination for a cervical spine disability, where he complained of neck pain, described as constant, stabbing and pressure like pain sensation without irradiation. Reflex and sensory examinations were normal throughout. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner opined that there was no evidence of right or left upper extremity radiculopathy, and therefore, an opinion was not rendered, since it would be for educational purposes only. The examiner failed to address any of the Veteran’s lay reports or prior records showing involvement of the nerves. In support of his claim, the Veteran submitted a September 2018 private medical nexus opinion, in which the medical professional opined that the abnormal 1993 EMG study and the December 1997 VA examination that showed diminished reflexes support the conclusion that the Veteran had bilateral upper extremity radiculopathy. The medical professional opined that it was more likely than not that the Veteran’s bilateral upper extremity radiculopathy was secondary to his cervical spine disability specifically to the C5 cervical fracture. In support of the claim, the medical professional cited to evidence of record and medical literature. Based on the foregoing, the Board finds that the evidence is at least in equipoise regarding whether the Veteran has a current diagnosis of bilateral upper extremity radiculopathy and whether it is related to his service-connected status post compressed fracture of the fifth cervical vertebra. Notably, the Board assigns no probative weight to the November 2016 VA examination report, since it failed to address and consider competent lay reports of numbness, weakness, and tingling in the upper extremities. The VA examiner also failed to address the objective evidence of record such as the abnormal November 1993 EMG study. On the contrary, the private opinion demonstrated complete review of the record, examination of the Veteran, and referenced medical literature in support of the conclusion that the Veteran’s had a current diagnosis of bilateral upper extremity radiculopathy secondary to his service-connected status post compressed fracture of the fifth cervical vertebra. Therefore, service connection for a bilateral upper extremity radiculopathy on a secondary basis is granted. Earlier Effective Date Claims Headaches In June 2016, the Veteran filed a claim for service connection for headaches using the Fully Developed Claim (FDC) process; the claim is date stamped June 21, 2016. Under the FDC framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. According to 38 U.S.C. § 5110(b)(2)(A), “the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” A claim for service connection submitted through the FDC process by definition meets the statutory requirement of “an original claim that is fully-developed.” See 38 U.S.C. § 5110. This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. However, 38 U.S.C. § 5110 (b)(2)(A) does not establish that the effective date for claims filed under the FDC process is automatically one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. Here, neither the Veteran nor his representative provided any argument or evidence in support of his claim for an earlier effective date for headaches. Nevertheless, given that his application was under the FDC program, an earlier effective date of June 21, 2015 is warranted. Namely, one year before the date of receipt of the application. During the November 2016 VA examination, it was noted that the Veteran experienced headaches continuously since his time in the military. In essence, this supports that the disability was present a year prior to the date of his claim under the FDC program. Based on the foregoing, the Board will assign an effective date of June 21, 2015, which corresponds to the one-year period prior to the date of receipt of the claim. The fact that a diagnosis of headaches was present more than one-year prior to the receipt of the June 21, 2016 claim is not relevant to the assignment of an effective date in this matter, as the date shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110(b)(2)(A). The mere presence of medical evidence of a disability does not show an intent on the Veteran’s part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. VA is not required to conjure up issues not raised by the claimant. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (noting that although VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). Therefore, the Board declines to view any references to headaches in medical records prior to June 21, 2015, as a claim for VA compensation. There is otherwise no legal basis for the assignment of an effective date earlier than June 21, 2015, for the grant of service connection for tension headaches. Cervical Spine Disability The Veteran asserts that the assignment of the 20 percent rating warrants an effective date earlier than October 4, 2016. The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). After a careful review of the evidence, lay and medical, the Board finds that an earlier effective date is not warranted. VA received the Veteran’s increased rating claim on October 4, 2016, at which time his cervical spine disability was rated as noncompensable. There is no prior unadjudicated claim for an increase for the cervical spine disability. Moreover, it was not factually ascertainable that an increase to 20 percent had occurred within the one-year period prior to the date of claim. There is no lay or medical evidence relevant to the Veteran’s cervical spine disability from a year prior to his claim. Additionally, the Board finds that entitlement did not arise prior to the date of claim, namely, October 4, 2016. In this regard, the Board notes the Veteran’s attorney’s argument that VA treatment notes dated February 2016 showed reports of exacerbation of his neck pain with onset two months earlier, namely, December 2015, less than one year prior to the date of claim; however, upon review, the Board does not find these reports to be sufficient in determining that entitlement to increased rating arose based on the Veteran’s lay reports at the time. Notably, the February 2016 treatment notes in question showed that the Veteran complained of upper back pain with no pain to palpation, and although the Veteran looked well, it was noted that the pain persisted. Upon questioning, the Veteran referred to neck and back pain with moderate exertion for the last couple of months that improved with rest. Additional treatment records dated in February 2016 showed that the Veteran complained of upper back pain that radiated to both arms, which was described as 8 out of 10 in severity and discomfort in the back. The medical professional noted complaints of right side of neck pain and right shoulder and arm pain, with reports of occasional numbness and weakness in this area. Furthermore, on general appearance, there was no evidence of neck pain or stiffness. Moreover, on physical examination, it was noted that the Veteran had full range of motion in all extremities. There was no evidence of forward flexion for the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or kyphosis. The Board acknowledges that the Veteran seeks an effective date from December 1, 2015, within a year of his claim for increased rating. However, it has been established that entitlement to the 20 percent rating did not arise until the November 30, 2016 VA examination, even later than the currently assigned effective date based on the date of claim, namely, October 4, 2016. Therefore, while the Board will not disturb the currently assigned effective date of October 4, 2016, the weight of the evidence does not support an earlier effective date prior to this date for the assignment of the 20 percent rating for status post compressed fracture of the fifth cervical vertebra disability. The mere statements that the disability worsened prior to the date of claim, under the facts of this case, is not sufficient to establish that a higher rating is warranted, specifically, given the objective evidence of full range of motion during the same time exacerbation was reported. REASONS FOR REMAND The Board finds that a remand is necessary to provide the Veteran with an adequate VA examination to determine the severity of his service-connected cervical spine disability and to provide him with a new VA examination to determine the current severity of his service-connected tension headaches. In addition, a remand is necessary to further develop the Veteran’s claim for a TDIU. Cervical Spine Notably, in November 2016, the Veteran underwent a VA examination for his cervical spine, at which time he reported flare-ups, which he described as staying home all day as well as functional loss that was described as limitation on standing and ambulation. The examiner noted that the Veteran was examined immediately after repetitive use over time, but opined that it was not possible to determine without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner explained that pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time; however, at the time of the examination, there was no evidence of fatigability, incoordination, muscle weakness, or pain. The examiner further stated that “no flare-ups were present or seen during the examination,” and as such, “an opinion concerning additional range of motion loss during flare-ups is not feasible.” Nevertheless, the examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repetitive use, but instead just stated that such information could not be provided without resorting to speculation. The Court of Appeals for Veterans Claims held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, a new examination must be obtained before the claim can be decided on the merits. Headaches In November 2016, the Veteran underwent a VA examination for headaches, at which time the examiner confirmed a diagnosis of tension headaches. The Veteran reported having headaches almost every day, described as 8 out of 10 in severity, and relieved with Advil and rest. The examiner noted that treatment included taking continuous medication, identified as Advil. The headache pain was described as pulsating or throbbing head pain lasting less than one day and located at both sides of the head. No response was provided as to whether the headaches were prostrating attacks of headache pain. Lastly, the examiner indicated that the headaches impacted the Veteran’s ability to work, but did not provide any additional information. In a March 2018 affidavit, the Veteran indicated that his headaches were severe and he had trouble with vision when they happened. He further stated that during a headache, he could only drink an analgesic for the pain, and had to lie down to wait for the pain to pass. In an additional undated affidavit associated with the attorney’s October 2018 argument, the Veteran reported that he experienced headaches approximately three to four times per week, which lasted on average between eight and ten hours. He further stated that when he experienced these headaches, the pain was so severe that he had to lie down, but could not sleep due to the pain, and was unable to do anything other than lie down and close his eyes. He indicated that sometimes he sought medical attention for his headaches, but only was prescribed painkillers. As such, he stated that he normally just took Advil, Panadol PM, and Tylenol. He also stated that his eyes were very sensitive to light during a headache, sometimes his vision became blurry or cloudy, and he experienced motion thickness. Given that the November 2016 VA examination report does not answer important questions regarding the nature and severity of the Veteran’s headaches and his reported worsening in subsequent affidavits, the Board finds that a new VA examination must be obtained before the claim can be decided on the merits. TDIU The issue of potential entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased rating requests. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds that the record is replete with information suggesting that the Veteran’s service-connected disabilities preclude from obtaining and/or maintaining employment. Notably, in October 2018, the Veteran submitted a formal application for increased compensation based on unemployability, which was not yet developed or adjudicated by the RO. In light of the Board’s decision herein, and the remanded increased rating claims for tension headaches and cervical spine disability, the issue of a TDIU is inextricably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the proposed development and the RO’s assignment of disability ratings for the now service-connected lumbar spine and bilateral upper extremity radiculopathy. The matters are REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records since the April 2017 SOC are associated with the claims file. 2. Develop the TDIU claim using the completed VA Form 21-8940 (see VBMS entry on October 29, 2018, titled correspondence p.16). 3. Then, provide the Veteran with a VA examination to identify the severity of his cervical spine disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his cervical spine disability. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. 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 clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups and or repeated use over time affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided. 4. Then, provide the Veteran with a VA examination to determine the current severity of his tension headache disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: Discuss the frequency of the Veteran’s headache attacks, whether they are characteristic prostrating attacks, and their impact on the Veteran’s economic adaptability. 5. Thereafter, readjudicate the increased rating claims on appeal as well as entitlement to a TDIU. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel