Citation Nr: 1124472 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 90-43 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to service connection for depression, claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia. 2. Entitlement to service connection for an intestinal motility disorder/irritable bowel syndrome (IBS), claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia. 3. Entitlement to an evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: His wife, K.A. ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1966 to December 1968. This case presents with a long and complicated procedural history. The appeal originally arose before the Board of Veterans' Appeals (Board) from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO) issued in December 1989, August 1999, and April 2000. As to representation, the Veteran was previously represented by an attorney at law, who withdrew via letter of April1999. He was then represented by a Veterans Service Organization. In January 2008, he and his wife executed a VA Form 21-22a (Appointment of Individual as Claimant's Representative), naming her as his representative and expressly revoking "all previous existing powers of attorney." The issue of entitlement to an increased evaluation for the service-connected gastritis and duodenitis with hiatal hernia was remanded by the Board for additional development in December 1990, July 1991, December 1992, and June 1994. A November 1994 rating action increased the rating assigned for the gastritis and duodenitis to 30 percent. On June 15, 1995, the Board issued a decision denying an evaluation in excess of 30 percent for the gastritis and duodenitis, and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In October 1996, a Joint Motion for Remand was filed, which requested that the Court return the case to the Board, on the ground there had been outstanding VA records which had not been obtained and considered by the Board at the time of the June 1995 decision. On October 16, 1996, the Court issued an Order returning the case to the Board. Copies of the Joint Motion and the Order are included in the claims folder. In March 2001, the Board remanded the issues of entitlement to an evaluation in excess of 30 percent for the service-connected gastritis and duodenitis, and entitlement to a TDIU, for additional development. The Board also found that the claims for secondary service connection for depression and an intestinal motility disorder/irritable bowel syndrome (IBS) were intertwined with the issues on appeal, and deferred further action on them at that time. On May 30, 2007, the Board received a statement from the Veteran which had duplicate medical evidence attached. This statement reiterated his contentions and expressed various complaints (such as about the conduct of a VA medical examination) which should be addressed to the RO. The Board issued a decision in July 2007, which denied the Veteran's claims. The Veteran subsequently filed motions to vacate, for reconsideration, and alleging clear and unmistakable error (CUE). He also submitted additional argument and evidence in support of his appeal, to include medical opinion evidence. In March 2009, the Board vacated its July 2007 decision. In May 2009, the Board referred the Veteran's case to the Veterans Health Administration (VHA) for medical expert opinions to address certain medical questions pertaining to the issues on appeal pursuant to its authority under 38 C.F.R. § 20.901. Medical expert opinions from a gastroenterologist and a psychiatrist were obtained, and copies of these medical opinions were sent to the Veteran in October 2009. At that time, the Veteran was advised that he had 60 days in which to review the medical opinions and submit any additional evidence or argument he had in support of his claims. 38 C.F.R. §§ 20.902, 20.903. In response, the Veteran submitted additional evidence and argument in support of his appeal. He specifically asked that the newly submitted evidence and/or argument be remanded for RO review. See Motion for Remand dated October 20, 2009, and Medical Opinion Response Form dated October 27, 2009. On November 30, 2009, the Board remanded the Veteran's claims for readjudication. On remand, the case was readjudicated by the Appeals Management Center (AMC), and a Supplemental Statement of the Case (SSOC) was issued in June 2010. The case is now before the Board for further appellate consideration. Since the case has been returned to the Board following the AMC's readjudication of the claims, the Board has received several letters from the Veteran's wife, who is his representative, asserting that the AMC had no jurisdiction to adjudicate the Veteran's claims and that its adjudication of the claims violated the Board's remand order. See e.g., July 15, 2010, and January 12, 2011, letters from the Veteran's representative. The representative has further repeatedly insisted that the Veteran's claims folder be sent to the Los Angeles RO, as the agency of original jurisdiction, for readjudication of the claims because the Veteran had not waived his right to RO review. The Board notes, however, that the Secretary of Veterans Affairs has determined that a centralized Veterans Benefits Administration (VBA) development unit would be responsible for developing evidence in appeals cases, such as this case. The AMC was created by VBA to develop evidence in cases remanded by BVA. See Chairman's Memorandum, No. 01-04-03 (Jan. 28, 2004). Thus, the AMC had jurisdiction over, and properly readjudicated, the Veteran's claims pursuant to such authority when it issued the June 2010 SSOC. The Los Angeles RO was not obligated to readjudicate the claims on appeal in this particular case. There has been no violation of the Board's remand order, as has been contended by the Veteran's representative. Substantial compliance with the terms of a Board remand is sufficient to satisfy due process. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board also recognizes that the Veteran has submitted additional evidence, to include an addendum to the January 2010 private medical opinion from Dr. J.B. dated in July 2010, and argument in support of his appeal since the June 2010 SSOC. However, upon closer review, the Board notes that most of the evidence submitted is duplicative and/or cumulative of evidence already of record at the time the June 2010 SSOC was issued. In particular regard to the medical opinion addendum, however, the Board notes that this evidence was not of record prior to the June 2010 SSOC. Nonetheless, Dr. J.B. in the July 2010 addendum merely provides clarification regarding his use of the phrase "within a reasonable degree of medical certainty" in the January 2010 medical opinion, and stated that his opinion was based on review of the entire available medical record. This addendum does not contain any additional information related to the Veteran's claims and has no bearing on the appellate issues. Therefore, no waiver of the Veteran's right to its initial consideration/adjudication by the RO is required. In particular regard to the additional evidence and/or argument submitted by the Veteran or his representative after the 90-day period following the case being recertified and transferred to the Board (following the issuance of the June 2010 SSOC), the Board notes that the Veteran has not submitted a motion for good cause for the delay in providing such evidence and/or argument, or otherwise explained why the evidence/argument was unable to be submitted during the 90-day period. 38 C.F.R. § 20.1304(a), (b). Moreover, the evidence submitted during this period appears to be duplicative and/or cumulative of evidence already of record and already considered in connection with the appeal. For the foregoing reasons, the Board will now proceed with appellate review without remand for further consideration of additional evidence and/or argument. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In a January 2010 statement, on the VA Form 21-4138 (Statement in Support of Claim), the Veteran's representative asked that a number of issues be evaluated for service-connection on both a direct and secondary basis. Except for the issues currently on appeal and adjudicated herein which were also listed, the issues delineated by the representative have not been adjudicated by the RO, and the Board does not yet have jurisdiction over them. However, because these issues have been raised by the record, they are REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Throughout the claim/appeal period, the credible and most probative evidence shows that the Veteran's gastritis and duodenitis with hiatal hernia have been manifested by mild epigastric tenderness with no rebound or guarding. There is no evidence of chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 2. The Veteran's depression is not related to the service-connected gastritis and duodenitis with hiatal hernia, on either a causal or aggravation basis. 3. The Veteran does not have an intestinal motility disorder/IBS which is related to his service-connected gastritis and duodenitis, on either a causal or aggravation basis. 4. The Veteran is service-connected for chronic gastritis and duodenitis with hiatal hernia, rated as 30 percent disabling. He is not service-connected for any other disability. 5. The Veteran has not been rendered unemployable by his service-connected gastritis and duodenitis with hiatal hernia. CONCLUSIONS OF LAW 1. Depression is not proximately due to, the result of, or aggravated by the service-connected gastritis and duodenitis with hiatal hernia, and was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 2. An intestinal motility disorder/IBS is not proximately due to, the result of, or aggravated by the service-connected gastritis and duodenitis with hiatal hernia, and was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 3. The criteria for an evaluation higher than 30 percent for the service-connected gastritis and duodenitis with hiatal hernia have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, Diagnostic Code (DC) 7307 (2010). 4. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.340, 3.341, 4.1, 4.3, 4.15, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). Proper notice from 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. 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial error in VCAA notice has not been alleged, nor, as discussed herein, has any such error been identified by the Board. In the present case, the initial adjudications predated the enactment of the VCAA. However, after remand by the Court to the Board, and the ensuing remand by the Board to the RO, the Veteran was provided with sufficient notice by way of a June 2003 notice letter, as explained below. In the June 2003 notice letter, the RO apprised the Veteran of the information and evidence necessary to substantiate his service-connection claims, which information and evidence that he was to provide, and which information and evidence that VA will attempt to obtain on his behalf. In this regard, the RO advised him of what the evidence must show to establish entitlement to service connected compensation benefits for his claimed disorders on a direct basis and to an increased rating, and described the types of information and evidence that the Veteran needed to submit to substantiate his claims. The RO also explained what evidence VA would obtain and would make reasonable efforts to obtain on the Veteran's behalf in support of the claims. While the June 2003 notice letter did not advise the Veteran of the evidence needed to substantiate his claims of service connection on a secondary basis, the notice error is not prejudicial to the Veteran. The Veteran, through his representative, has demonstrated actual knowledge of the evidence necessary to establish secondary service connection. See e.g., letter from the Veteran's representative dated August 12, 2010, with attached articles; see also Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Furthermore, it is reasonable to expect that the Veteran understands what evidence is needed to substantiate his service-connection claims, on a secondary basis, from the explanations and discussion of relevant law and regulations cumulatively provided in the rating decision, the SOC, and the multiple SSOCs issued throughout the course of this appeal. In particular regard to the Dingess requirements, the Veteran was informed, in the June 2003 notice letter, what the evidence must show to establish entitlement to an increased evaluation, which addressed the element of degree of disability. Although the letter did not address the element of effective date, the Board notes that the Veteran's claims are being denied for reasons explained below and, consequently, no effective date will be assigned. Therefore, the notice error is rendered moot. Furthermore, although no longer required, the Veteran was asked to provide all evidence in his possession that pertained to his claims in a February 2005 follow-up due-process letter. In regard to the timing of the notice, the Board notes that any timing defect was cured when, after receiving adequate notice, the Veteran's claims were readjudicated. See Mayfield, supra. The Veteran has been provided with a copy of the above rating decisions, the SOCs, and the numerous SSOCs pertaining to his claims. As mentioned above, they cumulatively included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered to reach the decisions. Moreover, as noted above, neither the Veteran nor his representative has alleged any prejudice with respect to the notice received for the claims during the course of this appeal. The Veteran has been provided with ample opportunity to submit evidence and argument in support of his claims and to participate effectively in the processing of his claims during the course of this appeal, and has done so. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, supra, at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with multiple medical examinations in connection with his claims during the course of this appeal. The Veteran has also submitted private medical records, to include opinion evidence, in support of his claims. The Board notes that all relevant findings for a fair evaluation of the claims are of record. The examination reports are adequate for rating purposes. Further, the recently obtained VHA medical expert opinions to address the various medical questions that have arisen during the course of this appeal are adequate for the purposes of this adjudication. The Board notes that the Veteran has alleged that the Board sought the VHA opinions in order to obtain evidence unfavorable to his claims. However, the Board is cognizant that the Court has indicated that it would not be permissible to undertake further development if the purpose were to obtain evidence against an appellant's claim unless VA can provide a reason for conducting such development. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Because various medical questions were raised in this case (particularly after review of the private medical opinions submitted by the Veteran) in connection with the claims, and the Board required additional advisory opinion, we requested the VHA opinions from two medical experts in the field of psychiatry and gastroenterology pursuant to our authority under 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.). It is also noted that, prior to the Board's request to obtain such opinion, the Veteran's representative had expressed a desire for medical expert opinions to be obtained in connection with the claims in correspondence submitted at various times during the course of this appeal (then later indicated that she no longer desired such opinions to be obtained). Further, the Veteran has asserted that the examinations provided in connection with his claims involving a gastrointestinal disorder were inadequate because the physician who conducted the examinations (Dr. G.) was biased against him, mis-reported the statements made by the Veteran at the examination, and did not discuss certain evidence of record which the Veteran believes is favorable to his claim. However, the Board notes that the Veteran has been afforded an opportunity to correct or clarify any statements which he believes were mis-reported by the physician. He has also been provided the opportunity to make reference to and discuss evidence favorable to his claims throughout the course of this appeal and has submitted numerous written statements to that effect. Although the Board observes that the examiner did not discuss every piece of evidence cited by the Veteran, the examiner discussed much of the pertinent evidence associated with the claims and based his opinion on review of the claims folder, as well as his own examination of the Veteran. Upon review of the examination reports prepared during the course of this appeal, the Board finds no indication of bias on the part of the VA examining physician, as alleged by the Veteran. As noted above, the examination reports are adequate for the purpose of the present adjudication. Moreover, as noted above, the Board has obtained a medical expert opinion from a gastroenterologist in connection with the appeal. Although the Veteran has asserted that the VHA medical opinion is flawed because it is based, in part, on the findings of the VA physician against whom he has alleged bias, the gastroenterologist's opinion was informed by, and based upon, review of the Veteran's entire claims folder, which included not only the VA medical examination reports but also the private medical evidence and lay statements submitted by the Veteran. There is no indication that the VHA medical opinion is inadequate. While many years have passed since the Veteran was last afforded a medical examination, there has been no allegation of worsened condition since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (Mere passage of time is not basis for requiring new examination). In addition, the Veteran has submitted competent lay and medical evidence describing his symptomatology since the examination, which will be considered in evaluating his claim below. Therefore, further examination of the Veteran's service-connected disability is not needed. Moreover, the Veteran's STRs are of record and post-service treatment records adequately identified as relevant to the Veteran's claims have been obtained, to the extent possible, or submitted, and are associated with the claims folder. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal which needs to be obtained. The Board recognizes that the Veteran's representative has expressed concern regarding various other issues pertaining to the adjudication of the Veteran's claims. The Board has already addressed many of these concerns in correspondence sent during the course of this appeal, to particularly include letters sent by the Board to the representative in September 2009 and October 2009. Those issues will not be addressed further. Any concerns not already addressed will either be addressed herein or are otherwise more appropriately directed to the RO. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. As discussed above, the Board further finds that there has been substantial compliance with its prior remands. D'Aries; Stegall, supra. II. Pertinent Law, Facts, and Analysis In this decision, the Board has considered all lay and medical evidence as it pertains to the issues on appeal. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A. Service connection for depression The Veteran asserts that he currently suffers from depression, as secondary to his service-connected gastritis and duodenitis with hiatal hernia. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case appears to predate the regulatory change. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In the present case, the evidence sufficiently establishes the presence of current depression. As stated above, we referred the Veteran's case to a VHA psychiatrist for an expert opinion. In the June 2009 VHA opinion, Dr. K.L. summarized the relevant evidence contained in the claims folder and concluded, based on his review of the claims folder, that the Veteran met the diagnostic criteria for a major depressive disorder. Another psychiatrist, Dr. T.K., similarly found, in August 1995, that the Veteran's diagnosis was major depression with psychotic features, with onset in 1984. Thus, because the presence of current depression is shown by the evidence of record, the Board will next consider whether the Veteran's depression is related to his service-connected gastritis and duodenitis with hiatal hernia, on either a causation or aggravation basis. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.). In the Board's request for a VHA medical expert opinion, we asked the reviewing psychiatrist to provide an opinion as to whether the Veteran's psychiatric disorder was in any way associated with his gastritis and duodenitis on a direct, secondary, or aggravation basis. In response, Dr. K.L. wrote that it is his clinical opinion that the Veteran's major depressive disorder is not associated with the service-connected gastrointestinal disability on any of those bases. He explained that the timing of the onset of the Veteran's mood symptoms was closely associated with the onset of his workplace stressors in 1984, and the psychologist at that time felt that the Veteran's depressive symptoms were a direct result of those stressors. Dr. K.L. also noted that, while service connection for gastritis was established in 1971, the Veteran had no known psychiatric history prior to 1984. Dr. K.L. then noted that there was little reference to the Veteran's gastrointestinal symptoms in the psychiatric and psychological reports, and he did not find convincing evidence that the onset of the mood disorder was proximately due to or the result of gastritis or duodenitis. He additionally wrote that he did not find that the reports substantiated a permanent worsening of the Veteran's depressive symptoms by his gastritis and duodenitis. He further noted that it is his clinical opinion that a clear causal relationship between major depressive disorder and gastritis or duodenitis has not been established in the general population. The psychiatrist later added that, in his opinion, the Veteran's mood symptoms were most likely worsened from 1984 as a result of the natural progression of his psychiatric disease. The reviewing psychiatrist has specialized expertise in the area of psychiatric disorders and is, therefore, competent to provide an opinion regarding the relationship between the Veteran's depression and his service-connected gastrointestinal disorder. In addition, the psychiatrist provided a sound rationale in support of his conclusion based on review of the Veteran's psychiatric history as documented in the claims folder and his knowledge of certain medical principles in the field of psychiatry pertinent to the issue presented. For these reasons, the psychiatrist's opinion is afforded great probative value. The Board notes that a private neuroradiologist (C.N.B.) concluded in his November 2008 medical opinion that the Veteran's depression was due to his IBS/IBD because the records did not support another cause and the condition was known to be caused by IBS/IBD. See November 2008 report, page 10. It is also noted that a private physician (Dr. J.W.B.) specializing in area of internal medicine concluded in his January 2010 medical opinion that the Veteran's depression and gastrointestinal symptoms were intertwined and his depression was etiologically related to his gastrointestinal maladies. See January 2010 report, page 9. He noted that he had reviewed the opinion provided by the reviewing psychiatrist in the June 2009 VHA opinion but found that he did not take into account the Veteran's overall disability picture, to particularly include his underlying IBS, and the established fact that depression is a common psychological symptom associated with IBS. However, the Veteran is not service-connected for IBS or IBD for reasons discussed below, and neither diagnosis is considered part of his service-connected gastrointestinal disability. Moreover, the opinion provided by the reviewing psychiatrist is afforded more probative weight than the opinions of the neuroradiologist and the internist because the psychiatrist, unlike the private physicians, has specialized expertise in the area of psychiatric disorders and is particularly competent to render a medical opinion regarding the etiology of psychiatric disorders. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The neuroradiologist's curriculum vitae (CV), which is included in the record, does not indicate that he has any specialized expertise in the area of psychiatric disorders. Similarly, the internist, who detailed his credentials in the January 2010 report, is not shown to have any specialized expertise in the area of psychiatric disorders. The Board also recognizes that the Veteran and his representative, his wife, have asserted that he suffers from depression due to the severity of his service-connected gastrointestinal disability. Both the Veteran and his representative are competent, as lay persons, to report any observable manifestations associated with the claimed disorder. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Further, there is no indication that the Veteran's account of depression and pain related to his service-connected gastrointestinal disability are not credible. Nonetheless, the Board finds that the competent medical opinion provided by the reviewing psychiatrist outweighs the lay assertions by the Veteran and his representative in resolving the medical question of whether his depression is related to his service-connected disability. As explained above, the reviewing psychiatrist, unlike the Veteran and his representative, has specialized expertise in the area of psychiatric disorders and based the opinion on a complete review of the Veteran's psychiatric history as documented in the claims folder, which included the lay statements from the Veteran and his representative. For the foregoing reasons, the preponderance of the evidence weighs against a finding of service connection for the Veteran's depressive disorder on a secondary causation or aggravation basis. The evidentiary record does not otherwise support a finding of service-connection on a direct basis. 38 C.F.R. § 3.303. Indeed, the Veteran's depression is not shown to be otherwise related to his period of active service. His STRs are devoid of any complaints, findings, or treatment of a psychiatric disorder. He is first shown to have sought psychiatric treatment many years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of complaints and medical treatment for a condition can be considered as a factor in resolving a claim). It is additionally observed that, at the time that the Veteran began seeking treatment for psychiatric problems in 1984, he complained of work-related problems. He made no mention of having psychiatric problems that began in, or as a result of, his period of active military service. Moreover, the reviewing psychiatrist, in the June 2009 medical opinion, stated that the Veteran's major depressive disorder was unlikely to have arisen in or as a result of service because he did not have a known psychiatric history prior to 1984 and there was no evidence to support a causal relationship between the Veteran's service and his depressive symptoms. The reviewing psychiatrist added that it is also unlikely that the Veteran's major depressive disorder pre-existed service and was aggravated therein, because he did not have a known psychiatric history prior to 1984 and he denied any history of "depression or excessive worry" on his November 1968 Report of Medical History at separation. Thus, for these reasons, the preponderance of the evidence also weighs against the Veteran's claim on a direct basis. In summary, although the Veteran has asserted that he suffers from depression secondary to his service-connected gastritis and duodenitis with hiatal hernia, the most probative medical opinion evidence does not support a finding that such a relationship existed. The evidence further does not indicate that depression had its onset in, or is otherwise etiologically related to, the Veteran's period of active military service. For the foregoing reasons, the preponderance of the evidence is against his claim, and service connection for depression is not warranted. Under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, where the preponderance of the evidence herein is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. B. Service connection for intestinal motility disorder/IBS The Veteran also asserts that he currently suffers from intestinal motility disorder/IBS, as secondary to his service-connected gastrointestinal disability. As noted above, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, supra. An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Because an amendment was made to the provisions of 38 C.F.R. § 3.310 during the pendency of this claim and appeal, see 71 Fed. Reg. 52,744-47, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In the present case, there is conflicting evidence of record regarding whether the Veteran currently suffers from IBS or an intestinal motility disorder. For example, the VA treatment records and examinations conducted throughout the 1990's had diagnosed "rule out" IBS and "questionable" IBS. These diagnoses were based on his complaints of stomach pain and diarrhea. The January 1999 VA examiner felt that the Veteran could possibly have an intestinal motility disorder or IBS, which it was thought would explain his chronic complaints. Another VA examination was conducted in August 2003. At that time, the Veteran complained that, on occasion, he would have some constipation and then some diarrhea; he denied that this occurred on a weekly basis. The examiner concluded that there was no evidence for any disorders labeled as IBS or a generalized intestinal motility disorder. The Veteran, however, has submitted a prescription for Zelnorm, which was noted to have been prescribed for IBS and is dated in April 2005, from a private medical provider. Also, private physicians, a neuroradiologist and an internist, wrote in opinions dated in November 2008 and January 2010, respectively, that the Veteran suffers from IBS (irritable bowel syndrome) and/or IBD (inflammatory bowel disease). In light of the conflicting medical evidence included in the record, the Board referred this case to VHA for a medical expert opinion from a gastroenterologist. In the August 2009 opinion, the reviewing gastroenterologist summarized the relevant medical history as it relates to the Veteran's gastrointestinal problems and wrote that, on the most recent history and physical in 2003, there was no mention in the assessment/plan of intestinal motility disorder, irritable bowel syndrome, or other psychophysiological gastrointestinal disorder. He also later added that, based on available data, it is his opinion that the Veteran had evidence of gastritis and duodenitis on VA endoscopies but no evidence of ulcer. Although the reviewer did not specifically discuss the April 2005 prescription above, the failure to do so does not render his opinion inadequate. He did note that he had reviewed a November 2004 treatment record, which was from the physician who had prescribed Zelnorm. The reviewer wrote that the colonoscopy report dated in November 2004 by the physician had findings of diverticulosis and erythematous streaks, suggestive of sigmoiditis. The pathology was noted to be chronic nonspecific sigmoiditis. However, the reviewer found that the pathology report was very non-specific and, therefore, non-diagnostic. He questioned whether the Veteran had a diverticular-disease associated segmental colitis or whether the pathology features were more consistent with an underlying inflammatory bowel disease. He noted that that would depend, to some extent, on the endoscopic appearance of the inflammation. He further asked whether the pathology findings were more consistent with NSAID (non-steriodal anti-inflammatory drug) related injury. He added that those questions could not be answered based on the available endoscopy or pathology report, but noted that diverticular disease was not noted on prior VA endoscopic evaluations. Thus, it is clear that the reviewer did not find that the November 2004 medical record supported the diagnosis of IBS. Also, the reviewer found several problems with the November 2008 opinion provided by the neuroradiologist. He noted that the neuroradiologist was not shown to be GI board-certified on his CV. He also pointed out that the physician stated in the competency section of the report that he had examined the Veteran, but later recanted and wrote that an actual examination of the Veteran was not medically required. The reviewer additionally noted that, although the physician attributed the Veteran's gastrointestinal complaints such as abdominal pain, nausea, heartburn, and difficulty swallowing to the diagnosis of IBD (inflammatory bowel disease), there is an ongoing debate regarding the pathophysiology of IBS. He also noted that IBD is different from IBS. He stressed that a GI specialist would not confuse the two entities and use them interchangeably, as the neuroradiologist did in his opinion. The reviewer further noted that, although the neuroradiologist stated that the Veteran had lower GI disease (IBD) and IBS, the pathology report of record was not diagnostic of inflammatory bowel disease, and the evidentiary record available did not clarify whether the Veteran's symptoms were attributable to IBS. He added that, at the Veteran's last doctor's visit in July 2003, he was not documented to have been taking medications for treatment of his gastritis/duodenitis, and patients with the disability who are treated with acid blockers may have persistent symptoms of abdominal pain despite optimal acid suppression, which can be attributed to IBS. The Board recognizes that the reviewing gastroenterologist noted that further examination and evaluation of the Veteran would allow better understanding of the nature and extent of his service-connected gastritis and duodenitis, as well as his more general complaint of abdominal pain. However, the reviewer was able to conclude, based on available data, that the Veteran had evidence of gastritis and duodenitis on VA endoscopies and no evidence of ulcer. Moreover, while further evaluation of the Veteran would likely be informative and provide additional information pertinent to the claim, the Veteran refused to submit to endoscopy in connection with his medical examinations in 1999 and 2003 (because his wife was not permitted to personally observe the endoscopy, which was explained to be against VA medical policy) and has not indicated that he would undergo further examination in connection with the claim. See March 9, 2004, VA Form 21-4138. The Board recognizes that two private physicians have provided opinions in support of the diagnosis of IBS and/or IBD. There is also an April 2005 private medical note simply indicating that the Veteran was taking Zelnorm to treat IBS. The Veteran and his representative have also provided lay statements detailing his various gastrointestinal complaints, and they are competent to report such symptomatology. However, because the reviewing gastroenterologist has specialized expertise in the area of gastrointestinal disorders, provided a sound rationale in support of his conclusion, and noted several problems particularly with the November 2008 medical opinion from the neuroradiologist and the November 2004 private colonoscopy report, the Board affords his opinion greater probative weight than the private medical opinions and lay statements of the Veteran and his spouse. See Evans, supra. Furthermore, with respect to the Veteran and his representative, who is his wife, neither is shown to have the requisite medical expertise to attribute his gastrointestinal complaints to the diagnosis of IBS or an intestinal motility disorder. Although the Veteran has alleged that the VA medical examiner who conducted the 1999 and 2003 medical examiners had informed him that he had irritable bowel syndrome, his statement is not consistent with the August 2003 examination report prepared by the physician. Therefore, the Veteran's statement in this particular regard lacks credibility, and is afforded less probative value than the 2003 VA examination report. For the foregoing reasons, the most probative and competent evidence reveals that the Veteran does not suffer from his claimed disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board recognizes that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, supra. However, where, as here, the overall evidence of record fails to support a definitive diagnosis of the claimed disability based on available clinical data and findings, that holding is of no advantage. The most probative medical evidence is against finding that the Veteran suffers from the claimed disability. Therefore, because the preponderance of the evidence is against his claim, service connection for IBS/intestinal motility disorder is not warranted. In reaching this conclusion, the Board has considered 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, mandating that a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable herein. Gilbert v. Derwinski, supra. C. Higher Initial Evaluation The Veteran also seeks a higher disability evaluation for his service-connected gastritis and duodenitis with hiatal hernia. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the Veteran's condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. An appeal from the initial assignment of a disability rating, requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected gastrointestinal disability is currently assigned an initial disability evaluation of 30 percent under Diagnostic Code 7307 for hypertrophic gastritis (identified by gastroscope). Under DC 7307, a 30 percent evaluation is assigned when there is evidence of chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent evaluation is assigned when there is evidence of chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. In this case, the relevant evidence includes a VA medical examination of the Veteran performed in July 1987. At that time, he complained of recurrent episodes of abdominal pain with nausea and periodic vomiting. He also reported constipation interrupted by diarrhea. He further complained of intermittent sharp pain in the lower intestines. The physical examination found that the abdomen was soft with mild epigastric tenderness. A July 1987 gastroscope found some nodules; the impression was mild duodenal inflammation with no ulcer. The examiner diagnosed gastritis and IBS by history. VA treatment records from 1987 through 1989 document the Veteran's complaints of stomach pain. Objectively, he displayed a moderately tender abdomen. VA afforded the Veteran medical examinations in December 1991 and September 1994. The former examination referred to his complaints of epigastric pain, with findings of a benign and nontender abdomen. During the latter examination, he stated that since service he had had progressively worsening upset stomachs, characterized by nausea and vomiting. These incidents would occur in clusters and would last about 10 days. He denied any upper gastrointestinal (UGI) bleeding. He denied any significant weight loss, although he referred to some blood in the stool. The physical examination found that his abdomen was soft and flat with hyperactive bowel sounds. There were no masses or ascites. His weight was 121 pounds, the same that it had been over the preceding year. He noted that his vomiting episodes would occur in clusters, about once a month. The diagnosis was history of chronic epigastric pain and epigastric distress that occurred in cycles, similar to ulcer disease but with no ulcer found. The Veteran was treated by VA between 1990 and 1998. In April 1991, he was noted to have a burning sensation in the abdomen; the physician doubted peptic ulcer disease. In September 1994, he underwent a flexible sigmoidoscopy, which was unremarkable. In 1995, he noted that he had been taking Tagamet, which he had discontinued because it had caused headaches. He was diagnosed with erosive gastritis and duodenitis. In June 1997, he had positive bowel sounds; his abdomen was nontender except to deep palpation of the epigastric areas. In October 1998, he was still complaining of stomach pain, diarrhea, and sporadic vomiting. In January 1999, the Veteran was re-examined by VA. The examiner noted that it was difficult to pin down the Veteran's symptoms. He said that he would have a two-week cycle of epigastric pain that had a spontaneous onset. He described the pain as occasionally sharp, but noted that it was usually burning in nature. He claimed that it would hurt in all quadrants on different occasions. He said that these episodes would be accompanied by nausea and occasional vomiting. He denied ever vomiting any blood. He also denied any weight loss. Palpation of the abdomen showed mild tenderness in all quadrants of the abdomen. There was no rebound and the tenderness immediately resolved. The Veteran noted that the pain would be most severe in the lower right upper quadrant, not in the epigastrum. His bowel sounds were normal. At his wife's insistence, he withdrew his consent to undergo an endoscopy. The examiner noted that the Veteran's symptoms were more frequent and cyclical but were similar to what they were in service. There was no objective data with which to support any change in the severity of the Veteran's disease. The examiner commented that it was not possible to tell whether the Veteran was entitled to more than a 30 percent evaluation, because his spouse would not let him undergo an endoscopy. Therefore, there was no objective evidence or indication of the worsening of his condition. VA again examined the Veteran in August 2003. The examiner indicated that all six volumes of the Veteran's claims folder were reviewed. The Veteran reportedly related that, every 10 days or so, it would feel as if his epigastrum was "on fire." He indicated that taking TUMS would help; while he described occasional vomiting, he denied that this was accompanied by any blood. He could not recall any diagnostic testing since 1999. He said that when he would get an attack, he would lie down in the fetal position, take some TUMS, and wait for the episode to pass. He indicated that his stomach complaints would sometimes be accompanied by headaches. He said that his symptoms were the same as they had been in 1999. The physical examination noted that his abdomen was mildly obese with nonspecific generalized tenderness throughout the abdomen without any acute findings such as rebound or guarding. There was no palpable spleen or liver. There were also no masses or aortic bruits. The examiner wanted to schedule an endoscopy, but his wife refused permission unless she could be in the room. The examiner noted that she had been told in the past that she could not accompany the Veteran in the room during the procedure. The examiner opined, after reviewing the record and after listening to all of his complaints, that the Veteran's gastrointestinal condition was stable and unchanged. The Veteran subsequently clarified and/or corrected his statements as reported by the examiner. He stated that he had daily headaches that were always felt during episodes of gastrointestinal disturbance, alternating periods of diarrhea and constipation daily, and symptoms that have progressively worsened over the years. See March 2004 statement on VA Form 21-4138. In August 2009, a VA gastroenterologist reviewed the Veteran's claims folder, summarized the medical history pertinent to his gastrointestinal problems, and found evidence of gastritis and duodenitis on VA endoscopies but no evidence of ulcer. He also noted that the Veteran did not complain of symptoms of altered bowel habits on primary care visit in July 2003 and was not given a diagnosis of intestinal motility disorder, IBS, hiatal hernia, or psychophysiological gastrointestinal disorder on the most recent physical examination dated in July 2003. After a careful review of the evidence of record, the Board finds that an evaluation in excess of 30 percent from the time of the original claim in 1989 has not been established. Initially, the Board notes that the only way to objectively ascertain whether the Veteran has large ulcerated or eroded areas, as is necessary to justify a 60 percent evaluation, would be for the Veteran to undergo an endoscopy procedure. However, the Veteran has been unwilling to do so. Therefore, the Board will rely upon the other evidence that can be found in the record, to include the various VA examination reports and the lay statements of record. The available evidence of record demonstrates that the Veteran has experienced mild epigastric tenderness, cycles of vomiting, with no rebound or guarding and no indication of a palpable liver or spleen. Significantly, the examiner in January 1999 and August 2003 specifically opined that, after reviewing the evidence of record, the Veteran's condition has been stable since his release from service, with no objective evidence that would support a finding that it had increased in severity since his claim in 1989. Further, the Veteran has not alleged that he suffers from severe hemorrhage associated with his service-connected gastrointestinal disability. While he has competently reported having abdominal pain and there is no indication that his account of such pain is not credible, he has not indicated that he has observed any bleeding associated with the pain. There is also no objective indication of hemorrhage or large ulcerated or eroded areas shown during the rating period. Therefore, based on this evidence, the Board finds that the 30 percent evaluation that has been in effect since 1989 adequately compensates the Veteran for the degree of disability resulting from his service-connected gastritis and duodenitis. Because the preponderance of the evidence weighs against the assignment of a higher evaluation at any time during the claim/appeal period, a staged rating is not required. See Fenderson, supra. In conclusion, it is found that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 30 percent for the service-connected gastritis and duodenitis. In making the above determination, consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a schedular evaluation higher than the current rating. Although the Veteran has reported symptoms of pain, vomiting, and alleges material weight loss, there is no evidence or indication of hematemesis or melena with moderate anemia. Further, while the Veteran has alleged symptom combinations are productive of severe impairment of health, the Board does not find his assertions to be credible, because they are not supported by the probative and competent medical evidence of record. He is shown to have several non-service-connected disabilities, in addition to his service-connected gastrointestinal disability, which affect his health. The reviewing gastroenterologist in his August 2009 opinion noted that, while a private physician confirmed a hiatal hernia in 1986, no hiatal hernia has been shown on VA endoscopies relevant to the period in issue. The Veteran has not provided any medical evidence to show that his service-connected gastrointestinal disability, which includes a diagnosis of hiatal hernia, more closely approximates the schedular criteria for a 60 percent rating under DC 7346. In addition, while the private medical reviewers have indicated that the Veteran has an ulcer, the more probative opinion provided by the reviewing gastroenterologist, who specializes in gastrointestinal disorders, noted that there was no evidence of an ulcer based on his review. It is notable that the VHA medical reviewer considered essentially the same records as the private reviewers in arriving at his conclusion. Thus, a higher evaluation is also unavailable under DCs 7304 (gastric ulcer), 7305 (duodenal ulcer), and 7306 (marginal (gastrojejunal) ulcer). There is further no evidence that the Veteran has undergone gastrectomy such that evaluation under DC 7308 for postgastrectomy syndrome would be appropriate. The Board has further considered whether the Veteran's service-connected gastritis and duodenitis with hiatal hernia warrants referral for consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b); see Barringer v. Peake, 22 Vet. App. 242 (2008). However, after review of the record, the Board finds that any limitations on the Veteran's employability due to his service-connected disability have been contemplated in the currently assigned 30 percent rating under DC 7307. The evidence does not reflect that his claimed disability has necessitated any frequent periods of hospitalization or caused marked interference with employment at any time relevant to the claim/appeal period. There is no exceptional or unusual disability picture not contemplated by the regular schedular standards. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). Because the record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant consideration of the assignment of an extraschedular rating, extraschedular referral is not warranted. C. TDIU The Veteran further seeks entitlement to a total disability evaluation based on individual unemployability due to his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the present case, the Veteran is service-connected for chronic gastritis and duodenitis with hiatal hernia, rated as 30 percent disabling. He is not service-connected for any other disabilities. 38 C.F.R. § 4.16(a). Because the Veteran is service-connected for only one service-connected disability and that disability is rated less than 60 percent, the threshold percentage requirements for a total rating under the provisions of 38 C.F.R. § 4.16(a) are not met. However, he might nonetheless be entitled to TDIU based on 38 C.F.R. § 4.l6(b). If the schedular percentages are not met, the Veteran's claim may be referred to the Director of the VA Compensation and Pension Service for an extraschedular rating, when the evidence of record shows that veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." 38 C.F.R. § 4.16(b). The evidence of record includes psychiatric examinations of the Veteran conducted in September 1992 and August 1995 which noted that the Veteran had not worked since 1984, primarily due to his psychiatric symptoms, namely his depression that had been related to employment problems with his last employer. At the time of an August 2003 VA examination, he had stated that he was unable to work because of abdominal discomfort. However, the physician, in January 2006, concluded that his gastrointestinal condition did not prevent the Veteran from obtaining and maintaining employment; rather, his depression prevented his employment. There is no competent medical opinion of record to the contrary. For reasons explained above, however, service connection for depression is not established. Thus, the most probative evidence of record does not show that the service-connected gastritis and duodenitis with hiatal hernia have rendered the Veteran unemployable. Rather, it shows that his non-service-connected depression has resulted in his unemployability. While the Veteran has asserted that his service-connected gastrointestinal disorder has rendered him unemployable, the Board affords more probative weight to the medical opinion evidence above which does not support a finding that the Veteran has been rendered unemployable by his service-connected disability. Sincere though the Veteran may be in his belief, the medical examiner, unlike the Veteran, has the requisite medical expertise to render a competent opinion regarding the cause of the Veteran's unemployability. In summary, the competent and most probative evidence of record shows that the Veteran is not unable to engage in gainful employment solely due to his service-connected disability. Consequently, the Board finds that a preponderance of the evidence weighs against the Veteran's claim, and entitlement to a TDIU is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Because the preponderance of the evidence, however, is against the claim, that doctrine is not applicable. Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for depression, claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia, is denied. Entitlement to service connection for an intestinal motility disorder/irritable bowel syndrome (IBS), claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia, is denied. Entitlement to an initial evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs