Citation Nr: 1007390 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-35 515A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness. 3. Entitlement to an initial evaluation in excess of 30 percent for colitis with reversed ostomy, scar, and pancreatitis. 4. Entitlement to an initial evaluation in excess of 20 percent for migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to December 1995, with service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA has obtained all information and evidence necessary for an equitable disposition of the Veteran's appeal. 2. On October 13, 2009, during his video conference Board hearing before the undersigned Acting Veterans Law Judge, and prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw from appellate status the issue of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness. 3. The competent and probative evidence of record demonstrates that the Veteran's service-connected colitis with reversed ostomy, scar, and pancreatitis is manifested subjectively by complaints of malnutrition, anemia, weight loss, incontinence, and pouchitis without objective findings of severe ulcerative colitis with numerous attacks a year, malnutrition, and only fair health during remissions. 4. The competent and probative evidence of record demonstrates that the Veteran's service-connected migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine is manifested subjectively by complaints of pain and instability, without objective findings of limitation of motion of the hips, knees, shoulders, hands, and lumbar spine. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran, with regard to the issue of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.204 (2009). 2. The criteria for an initial evaluation in excess of 30 percent for colitis with reversed ostomy, scar, and pancreatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7323 (2009). 3. The criteria for an initial evaluation in excess of 20 percent for migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Codes 5003, 5099 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In regards to the Veteran's claims for increased ratings, these claims arise from the Veteran's disagreement with initial evaluations following grants of service connection. In this case, the Veteran was provided a VCAA letter in April 2004 which informed him of the evidence necessary to substantiate a claim for service connection. Courts have held that once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records, private treatment records from February 2002 to August 2003, and VA outpatient treatment records from June 1999 to February 2009. The Board notes that the record was held open for 60 days; however, as of this date no additional medical evidence has been submitted. The Veteran was also provided VA examinations in connection with his claims for increased ratings. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision A. Withdrawn Claim Chronic Fatigue Syndrome Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). During the October 2009 video conference Board hearing, the Veteran and his representative withdrew from consideration the issue of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness. As the Veteran has withdrawn his appeal as to the stated issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on the issue, and it is dismissed without prejudice. B. Increased Rating Claims The Veteran asserts that he warrants evaluations in excess of those that have been assigned to his service-connected disabilities. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is contesting the disability evaluations that were assigned following the grant of service connection for the disabilities. This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-27. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. Id. Moreover, staged ratings are appropriate in any increased- rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Colitis with Reversed Ostomy, Scar, and Pancreatitis The Veteran contends that his service-connected colitis with reversed ostomy, scar, and pancreatitis warrants a higher rating. In his August 2005 notice of disagreement (NOD), the Veteran explained that he suffers from numerous attacks of malnutrition, anemia, weight loss, and pouchitis. He had a complete proctocolectomy with ileal J-pouch and an anal anastomosis with diverting loop ileostomy. Although the surgery alleviated the symptoms of ulcerative colitis, the Veteran stated that the surgery left him with no colon, no terminal ilium, a shortened anal sphincter, and the possibility of living his life with an ostomy. He further testified at the October 2009 hearing that he suffers from incontinence and has to wear pads daily. The Veteran asserts that an increased rating his warranted for his service- connected disability. Throughout the rating period on appeal, the Veteran has been assigned a 30 percent evaluation for his service-connected colitis disability pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323 (2009). Under Diagnostic Code 7323, a 30 percent rating is assigned for ulcerative colitis productive of moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. Id. Finally, a 100 percent is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. Id. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not to be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Weight loss is a criterion for a disability rating higher than currently assigned for the Veteran's gastrointestinal disorder under Diagnostic Codes 7304 and 7346. For purposes of evaluating conditions in Section 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. See 38 C.F.R. § 4.112. After review of the evidence, the Board finds that an evaluation in excess of 30 percent is not warranted. Severe or pronounced ulcerative colitis is not shown. While the evidence shows exacerbations of ulcerative colitis, the evidence does not show numerous attacks a year and malnutrition with his health only fair during remissions of his ulcerative colitis. On examination in June 2005, the Veteran described having attacks with nausea and vomiting at least once a month and diarrhea at least 10 to 12 times a day. The June 2005 VA examiner concluded that the Veteran was "well nourished," and his colitis did not cause significant anemia or malnutrition. Similarly, at an October 2007 VA examination, the VA examiner indicated that the Veteran appeared healthy and reported no instances of malnutrition. Furthermore, in VA outpatient treatment records dated August 2006 and February 2007, the Veteran was described as being overweight. It was also noted that he was advised to add regular physical exercise into his daily or weekly routine, in addition to decreasing the amount of junk food or fast food consumed. The medical evidence does not more nearly approximate the criteria for severe symptoms of ulcerative colitis to warrant a 60 percent rating. In addition, the evidence does not show the Veteran's ulcerative colitis resulted in marked malnutrition, anemia, and general debility or with a serious complication as liver abscess to warrant a 100 percent disability rating. The symptoms described above are no more than moderately severe. Therefore, a rating in excess of 30 percent for ulcerative colitis is not warranted under Diagnostic Code 7323. The Veteran's symptoms also would not receive a higher rating under another analogous code for irritable colon syndrome (spastic colitis, mucous colitis, etc), as a 30 percent rating is the maximum evaluation available under Diagnostic Code 7319. See 38 C.F.R. § 4.114, Diagnostic Code 7319. The Board also notes that the June 2005 VA examiner commented on two scars associated with the Veteran's service-connected colitis disability. The first scar was described as an old leveled colostomy scar measuring at 2 centimeters by 6 centimeters. There was no tenderness, ulceration, adherence, tissue loss, keloid formation, hypopigmentation, abnormal texture, limitation of motion due to the scar, or instability with the scar associated with the scar. However, both disfigurement and hyperpigmentation were present. The second scar, described as a midline abdominal scar, measured at 31 centimeters by 2 centimeters. The VA examiner stated that the scar was leveled and tenderness, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, abnormal texture, and limitation of motion due to the scar were not present. He indicated that there was the presence of disfigurement and hyperpigmentation associated with the scar. The VA examiner concluded that both scars were caused by the Veteran's colitis treatment. Under 38 C.F.R. § 4.118, Diagnostic Code 7800 provides the criteria for rating disfiguring scars of the head, face, or neck and does not apply in this situation as the Veteran's scars are located on his abdomen. Although the Board notes that one of the Veteran's scars exceeds 39 square centimeters, there is no evidence that the scar is deep to warrant application of Diagnostic Code 7801, scars, other than head, face, or neck, that are deep and nonlinear; or Diagnostic Code 7805, scars, other, which are rated on limitation of function of the affected part. The scars are not 144 square inches or greater to warrant application of Diagnostic Code 7802, scars, other than head, face, or neck that are superficial and nonlinear. There is also no evidence that the scars are unstable or painful to warrant application of Diagnostic Code 7804, unstable or painful scars. Therefore, 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, and 7805 do not assist the Veteran in obtaining a higher evaluation for his service-connected colitis disability. The Board also notes that effective October 23, 2008, VA revised portions of the rating schedule that addresses the skin. The revisions do not alter or affect the Veteran's claim, however. Finally, the Board acknowledges in particular, the Veteran's complaints of incontinence and wearing pads, as reported during the October 2009 hearing. However, the Veteran is reminded that he is currently receiving a 30 percent disability evaluation for his fecal incontinence associated with colitis and reversed ostomy and scar with pancreatitis, to also include complaints of nausea, vomiting, liver function, abnormalities, and abdominal pain. See the May 2009 Decision Review Officer (DRO) decision. The Board notes that the Veteran is appealing the initial assignment of an evaluation following the grant of service connection for colitis with reversed ostomy, scar, and pancreatitis, and that in such cases, the Board must consider whether staged ratings should be assigned based upon the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, there is no evidence that there have been changes in the Veteran's medical status regarding his service- connected colitis disability. Therefore, his overall service-connected colitis disability has not changed and a uniform rating is warranted. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected disability has worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. As the preponderance of the evidence is against the Veteran's claim for an increased rating for his colitis with reversed ostomy, scar, and pancreatitis, the benefit-of-the-doubt doctrine is not for application, and an increased rating must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. Migratory Arthritis of the Hips, Knees, Shoulders, Hands, and Lumbar Spine At the October 2009 hearing, the Veteran testified that his service-connected migratory arthritis is worse than the current evaluation contemplates. He explained that he endures pain and instability associated with his knees and lower back. The Veteran asserts that a higher rating is warranted for his service-connected migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine. In this case, the Veteran is receiving a 20 percent evaluation for his service-connected migratory arthritis under Diagnostic Codes 5099-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2009). Diagnostic Code 5099 is used to identify musculoskeletal system disabilities that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X- ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board notes that the Veteran is presently receiving the maximum available rating under Diagnostic Code 5003; therefore, Diagnostic Code 5003 does not assist him in obtaining a higher evaluation. The Board must consider evaluation of the Veteran's service-connected migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine separately based on limitation of motion. Over the course of this appeal, the Veteran was afforded two VA examinations. Joint examination testing at the May 2005 VA examination revealed no crepitus or swelling of the knees, but the presence of bilateral tenderness in the lateral and medial joint line. Range of motion for both knees was flexion from 0 degrees to 140 degrees and full extension without pain. There was no evidence of fatigability, lack of endurance, or weakness after repetitive use. The examiner reported full range of motion with no pain during the examination for both of the Veteran's hips as well. Range of motion testing reflected flexion from 0 degrees to 125 degrees, extension from 0 degrees to 30 degrees, adduction from 0 degrees to 25 degrees, abduction from 0 degrees to 45 degrees, external rotation from 0 degrees to 60 degrees, and internal rotation from 0 degrees to 40 degrees. Similarly, the hips showed no evidence of weakness, lack of endurance, or incoordination. Bilateral shoulders presented full range of motion without swelling or tenderness. Range of motion testing showed forward flexion from 0 degrees to 180 degrees without pain, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. There was also no evidence of weakness, lack of endurance, or fatigability after repetitive use. Bilateral hands presented full range of motion with no swelling or tenderness. The VA examiner noted a previous right hand ring finger flexion deformity due to the previous trauma in the proximal phalangeal joint. Otherwise, there was adequate hand grip, no deformities, or evidence of decreased strength after repetitive use or against resistance. Finally, the thoracolumbar spine showed no evidence of spasm, tenderness, or a positive Lasegue's sign. Range of motion testing was forward flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, left and right lateral flexion from 0 degrees to 30 degrees, and left and right lateral rotation from 0 degrees to 30 degrees. The VA examiner assessed the Veteran with a history of migratory joint pain or arthralgias due to ulcerative colitis. At a second VA examination conducted in October 2007, the Veteran reported continuing migratory pain and arthritis in the hips, shoulders, knees, and hands. He also claimed pain, weakness, stiffness, swelling, and occasional instability in the joints, as well as lumbar spine pain and spasm in the lower area with radiation to the hips. The Veteran further added that his migratory arthritis has progressively worsened, and he takes prescribed medication daily for the pain. Range of motion testing of the knees revealed flexion to 140 degrees and extension to 0 degrees, with no additional limitation of motion on repetitive use. The Veteran's hips range of motion was recorded as flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, internal rotation to 40 degrees, and external rotation to 60 degrees. His shoulders range of motion was reported as flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was no additional limitation of motion on repetitive use. Metacarpophalangeal (MCP) joint flexion for both hands was 0 degrees to 70 degrees, proximal interphalangeal (PIP) flexion from 0 degrees to 80 degrees, and distal interphalangeal joint (DIP) flexion from 0 degrees to 70 degrees. The Veteran demonstrated adequate hand grip, no deformities, and no evidence of decreased strength after repetitive use or against resistance. Finally, range of motion testing for the thoracolumbar spine was recorded as flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was no additional loss of motion on repetitive use. The VA examiner diagnosed the Veteran with migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine. In this case, the Board finds that separate ratings based on limitation of motion of the hips, knees, shoulders, hands, and lumbar spine is not warranted. At both VA examinations, the Veteran demonstrated full range of motion of his knees, hips, shoulders, hands, and lumbar spine. There was no evidence of any limitation of motion even upon repetitive testing. The Veteran demonstrated motion in all planes of excursion for the stated joints. Thus, Diagnostic Codes 5201, 5216-5223, 5242, 5250, 5256, 5260, and 5261 are not for application in this case and do not provide a higher evaluation for the Veteran's service-connected migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5216- 5223, 5242, 5250, 5256, 5260, 5261. Additionally, the Board has also considered whether the evidence supports a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the Board notes the Veteran's continuing complaints of pain, stiffness, and weakness associated with his hips, knees, shoulders, hands, and spine. When considering these subjective complaints together with the objective medical evidence described above, the Board finds that the Veteran's disability most closely approximates a 20 percent rating for his service-connected migratory arthritis of the hips, knees, shoulders, hands, and spine. There is no indication that pain, stiffness, and weakness, due to the Veteran's disability has caused functional loss greater than that contemplated by the 20 percent evaluation currently assigned. Furthermore, the May 2005 VA examiner noted no evidence of fatigability, lack of endurance, or weakness after repetitive use for each joint, and the October 2007 VA examiner reported no pain or additional limitation of motion on repetitive use during range of motion testing. Therefore, an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, in view of the Court's holding in Fenderson, the Board finds that, at no time since service connection has been in effect has his service-connected migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine been more disabling than as currently rated. The Veteran is competent to report his symptoms. The Board does not doubt the sincerity in the Veteran's belief that his disability is worse than the 20 percent evaluation; however, the objective medical evidence does not support the contention for a higher evaluation. The Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for migratory arthritis of the hips, knees, shoulders, hands, lumbar spine, and the benefit- of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. Extraschedular Consideration Consideration has also been given regarding whether the schedular evaluations are inadequate for the Veteran's service-connected colitis with reversed ostomy, scar, and pancreatitis and migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations in this case are not inadequate. Evaluations in excess of that assigned are provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criterion adequately describes the severity and symptomatology of the Veteran's service- connected disabilities. Moreover, the evidence does not demonstrate other related factors. The Veteran has not required frequent hospitalization due to his service- connected disabilities. Moreover, marked interference with employment has not been shown. In the absence of any additional factors, the RO's failure to consider or to refer this issue for consideration of extraschedular ratings was not prejudicial. ORDER The appeal as to entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness is dismissed. Entitlement to service connection for headaches, to include as due to an undiagnosed illness, is denied. Entitlement to an initial evaluation in excess of 30 percent for colitis with reversed ostomy, scar, and pancreatitis is denied. Entitlement to an initial evaluation in excess of 20 percent for migratory arthritis of the hips, knees, shoulders, hands, and lumbar spine is denied. REMAND The Veteran seeks service connection for headaches, to include as due to an undiagnosed illness incurred during military service. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionly, as the Veteran had military service in the Persian Gulf region after August 2, 1990, he is considered a Persian Gulf Veteran. See 38 C.F.R. § 3.317(d)(1). A Persian Gulf Veteran shall be service-connected for objective indications of chronic disability resulting from an illness manifested by one or more presumptive signs or symptoms that began during active military service and cannot be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317. The Board notes as an initial matter that he does not have have a current diagnosis of a headache disorder. However, the Board also finds that headaches are within the realm of symptomatology subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran has given recurrent and consistent testimony regarding his headaches, sufficient evidence has been presented to trigger VA's duty to further assist him with the development of this claim. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79, 81( 2006).. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed chronic headaches. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. After reviewing the claims folder and examining the Veteran, the examiner should state whether a current diagnosis of a disability characterized by headaches is demonstrated. Based on a review of historical records and medical principles, the examiner should also provide a medical opinion, with adequate rationale, as to the approximate date of onset and etiology of any diagnosed headache disorder, to include any causal relationship with the Veteran's service in the Persian Gulf War. 2. After undertaking any additional development and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Board offers no opinion at this time regarding the ultimate outcome of this appeal. The appellant has 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 Supp. 2009). ____________________________________________ THOMAS D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs