Citation Nr: 1318700 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-02 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for muscle cramps involving the back, neck, legs, arms, hands, feet, and sides. 2. Entitlement to a rating in excess of 10 percent for varicose veins of the right lower extremity. 3. Entitlement to a rating in excess of 10 percent for varicose veins of the left lower extremity. 4. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The issues of entitlement to service connection for a left shoulder disorder, entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), entitlement to a disability rating in excess of 10 percent for right foot hallux valgus with tender calluses and bunion, and entitlement to a disability rating in excess of 10 percent for tender calluses on the sole of the left foot, are the subject of a separate decision of the Board of Veterans' Appeals(Board).) WITNESSES AT HEARING ON APPEAL Veteran and D.S. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991 and from June 1991 to September 1992. This matter comes before the Board on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2007, the RO denied increased ratings for bilateral varicose veins, and IBS. The RO also denied a TDIU. In July 2010, separate 10 percent ratings were granted for varicose veins of each of the lower extremities. In the June 2010 rating decision, the RO denied entitlement to compensation under 38 U.S.C.A. § 1151 for muscle cramps involving the back, neck, legs, arms, hands, feet, and sides. A Travel Board hearing was held in September 2011 with the Veteran in North Little Rock, Arkansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. In March 2012, the Board remanded this case. The case is now ready for appellant review. FINDINGS OF FACT 1. The Veteran claims that she has muscle cramps involving the back, neck, legs, arms, hands, feet, and sides, but they are not the result of VA medical care in which VA provided the Veteran with Dyazide. 2. The Veteran's bilateral varicose veins are not productive of persistent edema that is incompletely relieved by elevation of the extremity stasis pigmentation or eczema, any ulceration, or subcutaneous induration. 3. The Veteran's IBS is productive of alternating diarrhea and constipation, with more or less constant abdominal distress, but does not cause malnutrition. 4. The Veteran meets the schedular criteria for TDIU and the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for has muscle cramps involving the back, neck, legs, arms, hands, feet, and sides, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). 2. The criteria for a disability evaluation in excess of 10 percent for varicose veins in the right leg have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Code 7120 (2012). 3. The criteria for a disability evaluation in excess of 10 percent for varicose veins in the left leg have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Code 7120 (2012). 4. The criteria for an evaluation of 30 percent for IBS have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2012). 5. The Veteran is individually unemployable by reason of her service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in Fear 2005 (IBS), April 2007 (TDIU), June 2007 (varicose veins, IBS, and TDIU), February 2011 (38 U.S.C.A. § 1151 claim), and March 2010 (38 U.S.C.A. § 1151 claim). The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. Regarding the increased rating claims, the notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and for compensation paid as service connection (38 U.S.C.A. § 1151 claim). The Veteran also volunteered her treatment history and her symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, Social Security Administration records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. The Veteran also was provided VA compensation examinations and obtained medical opinions, including for a medical nexus opinion concerning her 38 U.S.C.A. § 1151 claim, as the Board directed when remanding these claims. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinions obtained are responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The examinations of record are adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports are thorough and supported by the record. The records taken as a whole satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining the additional medical evidence, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). Thus, in summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claims." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). 38 U.S.C.A. § 1151 Claim The Veteran contends that she has experienced muscle cramps involving the back, neck, legs, arms, hands, feet, and sides, due to being given by VA a generic drug called Dyazide after a high blood pressure reading. After taking the medication, she asserts that she had body cramping which has continued, in the claimed areas. Compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. Effective September 2, 2004, 38 C.F.R. § 3.361 was promulgated for claims filed as of October 1, 1997. Prior to that time, 38 C.F.R. § 3.358 is to be applied. In this case, the veteran's claim was received after October 1, 1997. Thus, 38 C.F.R. § 3.361 is for application. 38 C.F.R. § 3.361(b) states that to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused a veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, a veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. To establish that the provision of training and rehabilitation services or a CWT program proximately caused a veteran's additional disability or death, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability or death. The veteran must have been participating in such training, services, or CWT program provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C.§ 1718. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. 38 C.F.R. § 3.361(e) provides for Department employees and facilities. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e) explains activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction 38 C.F.R. § 3.361(g) provides for benefits which are payable under 38 U.S.C. § 1151 for a veteran's death. Pursuant to 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed.Cir.2010); see also Hyatte v. Shinseki 2010 WL 5230879, 2 (Vet. App.) (Vet.App.,2010) Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for compensation as permitted under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. A review of the record shows that in January 2006 and March 2007, the Veteran reported having body cramps. She has also reported cramping and muscle pain in conjunction with her service-connected fibromyalgia as well as her IBS. In conjunction with this claim, the Veteran submitted internet information regarding muscle cramps which indicated that possible causes were poor circulation, dehydration, fatigue, hot outdoor temperatures, calcium deficiency, and other unmentioned causes. However, the article did not state that Dyazide causes a permanent muscle cramping disorder. In July 2012, the Veteran was afforded a VA examination. The examiner noted the Veteran's complaints of muscle cramps which she asserted were due to Dyazide medication which had been furnished by VA. By her own admission, the Veteran took two of the Dyazide pills (in November 2001). The examiner reviewed the record and further indicated that the Veteran never had low potassium. In light of the foregoing, he concluded that the Dyazide did not cause the Veteran's muscle complaints and there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA in furnishing medical treatment. In addition, there was no additional disability sustained as a result of the VA treatment. The reason is because the muscle complaints were consistent with the Veteran's service-connected fibromyalgia which was not caused by Dyazide treatment. Since there was no additional disability due to the Veteran taking Dyazide, the question of whether the proximate cause of any additional disability was due to an event not reasonably foreseeable was noted to be answered in the negative. VA law and regulation require that the evidence must show that the additional disability is the result of VA hospital care, medical or surgical treatment and that the proximate cause of the additional disability must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. It is not contended nor shown that the Veteran was furnished hospital or medical treatment without her consent. Although she indicated that she questioned why she had been given Dyazide, there is no evidence that she did not consent to this medication and she decided on her own to cease taking it. The Veteran was a nurse practitioner during service. As such, she has medical training and may provide competent medical opinions. She has provided her own opinion regarding the etiology of her claimed muscle cramping. However, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Board finds that the VA examiner's opinion is more probative than the Veteran's opinion because the VA examiner's opinion is supported by a reasoned analysis. The Veteran did not distinguish the claimed muscle cramping from the symptoms of her fibromyalgia. In contrast, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. He addressed the fibromyalgia as well as the Veteran's potassium findings. Thus, his opinion addressed the pertinent factors, in a manner more complete that the Veteran's statements. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Thus, the most probative evidence of records establishes that VA's actions did not result in additional disability, the claimed muscle cramping. Rather, the Veteran's symptoms are attributable to another, unrelated, medical condition. The examiner also indicated that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment. In order to establish eligibility under 38 U.S.C.A. § 1151, the Veteran's medical care by VA must have been a factor and the other listed criteria must be met. That is not the case here. In sum, VA /medical treatment did not result in additional disability. Rather, the most probative evidence shows that there is no additional disability and that VA was not careless or negligent, lacked proper skill or made an error in judgment, or that there was similar instance of fault on the part of VA. Accordingly, the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for muscle cramps involving the back, neck, legs, arms, hands, feet, and sides, have not been met. In reaching this decision, the Board has considered the doctrine of doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, there has not been a material change in the disability level and a uniform ratings are warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Varicose Veins In a January 1992 rating decision, service connection for bilateral varicose veins was granted and a 10 percent rating was assigned under Diagnostic Code 7120. April 2005 VA outpatient records noted that the Veteran had leg pain due to varicose veins. She was told to use support hose and elevate her legs. A January 2008 venous Doppler of the legs revealed no evidence of deep venous thrombosis. In April 2009, the Veteran underwent a VA examination. It was noted that the Veteran had bilateral superficial varicose veins located below the knees. They were not symptomatic. She reported occasionally wearing support hose and that she elevated her legs at night. She had not noticed any swelling. Physical examination revealed a 3 by 4 centimeter patch of superficial varicosities over the right lateral midcalf on the left side. On the upper anterior calf, she had a 1 by 1 centimeter patch of superficial varicosities. No other varicose veins were noted. They were not tender nor was there any calf tenderness. Holman sign was negative. There was no edema or any other abnormalities. The diagnosis was superficial varicose veins. In a July 2010 rating decision, the RO granted separate 10 percent ratings for varicose veins of the left and right lower extremities, respectively. In July 2012, the Veteran was afforded another VA examination. The examiner reviewed a list of symptoms, but the Veteran did not have any of them. She reported that she used elevation and compression hosiery. She did not have peripheral vascular disease, aneurysm of any large arty, arteriosclerosis obliterans, or thrombo-angiitis. She had not undergone surgery. She did not have Raynaud's syndrome. She did not have arteriovenous fistula ,angioneurotic edema or erythrommelalgia. She did not have any amputation. Her functional impairment was not to the extent that she would be equally well-served by an amputation. There was no scarring. The vascular condition was noted to not impact her ability to work. The Veteran's varicose veins of the left and right legs are currently evaluated as 10 percent disabling each under Diagnostic Code 7120, varicose veins. 38 C.F.R. § 4.104. Under Diagnostic Code 7120, a 10 percent evaluation is warranted when there is intermittent edema of the extremity or aching and fatigue in the leg after prolonged standings or walking, with symptoms relieved by elevation of the extremity or compression stockings. 38 C.F.R. § 4.104. A 20 percent evaluation is warranted when there is persistent edema that is incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is warranted when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is warranted when there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. In this case, the Veteran does not have symptoms compatible with a higher rating for either varicose veins of the left or right leg. She does not have persistent edema that is incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. She does not have edema at all and elevation does provide relief. There is no stasis pigmentation or eczema. She also does not have any ulceration or subcutaneous induration. Thus, a higher rating of 20 percent is not met for varicose veins of either leg. IBS In April 2004, the Veteran reported having constant constipation. His abdomen was soft and nontender. There were no masses, organomegaly, and bowel sounds were normal. In February 2005, she was afforded a VA examination. The Veteran complained of constipation, bloating, and rarely diarrhea. She indicated that she tried to control the IBS with diet. Physical examination revealed no hepatosplenomegaly, masses, or tenderness. The examiner felt that the Veteran had IBS. In June 2005, service connection or IBS was granted and a 10 percent rating was assigned from February 2004 under Diagnostic Code7319. In April 2009, the Veteran underwent a VA examination. It was noted that the Veteran reported mainly having diarrhea that was fairly infrequent. She had a bout of diarrhea in February 2009 that lasted two days which involved 3-4 movements per day which were loose and watery. There was no blood. She did not have any bloating or cramps, but she said she had some pain. She had a similar episode in March, but had not had one in April. She related that she had a tendency for constipation which was chronic. She related that she would take a dose of Epson salts for relief. Physical examination reveled that the abdomen was sift and bowel sounds were active. There was no tenderness or masses. The diagnosis was IBS. In July 2012, the Veteran was afforded another VA examination. The examiner noted that the Veteran had alternating diarrhea and constipation. She would have 3 weeks of constipation and 1 week of diarrhea. The diarrhea would occur 4 to 5 times per day and be accompanied by cramping and flatus, but no bloating. There was no blood. She had a normal colonoscopy in April 2012. There had not been any hospitalization and the Veteran reported that for medication, she took cod liver oil. The cramping occurred frequently. The examiner indicated that the Veteran did not have weight loss attributable to the intestinal condition nor did she have malnutrition, serious complications, or other general health effective. On abdominal examination, the abdomen was nontender, there was no organomegaly, the bowel sounds were normal, and she declined a rectal examination. Laboratory tests were performed which showed normal potassium, sodium, chloride, CO2, BUN, Creatinine, and calcium. The Veteran has been assigned a 10 percent rating under Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent rating is for application when there is moderate disability evidenced by frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is for application when there is severe disability evidenced by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Board notes that the word "constant" is not defined in VA regulations, but that Dorland's Illustrated Medical Dictionary defines "constant" to mean "not failing; remaining unaltered." In affording the Veteran all reasonable doubt, the Board finds that a 30 percent rating is warranted since she has alternating diarrhea and constipation, with more or less constant abdominal distress, as complained of by her in written correspondence. However, a higher rating is not warranted since the diagnostic code most closely associated by analogy, requires malnutrition, which she does not have. See Diagnostic Codes 7323. Thus, an increased rating of 30 percent, but no more, is warranted for IBS. Conclusion for Ratings In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's 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. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent for varicose veins of the right leg or varicose veins of the left leg. The evidence supports a higher rating of 30 percent for IBS. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's varicose veins and IBS disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe her disabilities. Therefore, referral for consideration of an extraschedular rating is not warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In this case, the Veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a). Thus, the issue is whether her service-connected disabilities preclude her from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in her claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place 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 her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is unemployed and has been for years. She was recently examined in July 2012 to determine if she is unemployable. The examiner noted that the Veteran had been unemployed for a long time and currently cared for her grandchildren and was active in her church. She was able to walk 100 yards. She could sit for 20 minutes and was able to lift 10 pounds. The examiner stated that the Veteran was acceptable for sedentary work. In viewing the medical evidence of record, as well as the Veteran's statements, the Board finds that TDIU is warranted. The Veteran's disabilities considered separately may not preclude employment, however, in considering them cumulatively, the Board finds that the Veteran is unemployable based on the nature and severity of the service-connected disabilities under consideration. Although the VA examiner stated that she was able to perform sedentary work, she can only sit for about 20 minutes at a time. This does not appear compatible for gainful sedentary employment. She also has disabilities, such as her IBS, that were not addressed by the examiner. In addition, the Veteran discontinued her vocational rehabilitation training efforts due to the restrictions of her service-connected disabilities, as reflected in his vocational rehabilitation folder, which was not referenced by the examiner. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor, despite the opinion of the VA examiner, since the opinion did not fully encompass all of her disabilities, to include the current disability levels. Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for has muscle cramps involving the back, neck, legs, arms, hands, feet, and sides, is denied. An evaluation in excess of 10 percent for varicose veins in the right leg is denied. An evaluation in excess of 10 percent for varicose veins in the left leg is denied. An evaluation of 30 percent for IBS is granted, , subject to the law and regulations governing the payment of monetary benefits. TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs