Citation Nr: 1329612 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-09 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial compensable schedular rating for irritable bowel syndrome (IBS) from February 1, 2005 to April 12, 2010. 2. Entitlement to a schedular rating in excess of 10 percent for IBS since April 13, 2010. 3. Entitlement to an extraschedular rating for IBS. 4. Entitlement to an initial schedular rating in excess of 10 percent for cervical spine degenerative joint disease (DJD) from February 1, 2005 to April 12, 2010. 5. Entitlement to a schedular rating in excess of 20 percent for cervical spine DJD since April 13, 2010. 6. Entitlement to an extraschedular rating for cervical spine DJD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1995 to January 2005. His DD Form 214 reflects that he had 3 months and 15 days of prior active service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board remanded the claims in June 2010 and December 2011 for additional development. In a June 2011 rating decision, VA granted higher ratings for the disabilities on appeal effective April 13, 2010. As higher ratings for these disabilities are assignable before and after this date, and the Veteran is presumed to seek the maximum available benefit, the Board has characterized the appeal as set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. As noted in the December 2011 Board remand, the issue of degenerative disc disease (DDD) of the cervical spine has been raised in correspondence from the Veteran's private chiropractor, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to extraschedular ratings for IBS and cervical spine DJD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From the date of service connection, the Veteran's IBS has been manifested by not more than moderate symptomatology (i.e., frequent episodes of bowel disturbance with abdominal distress). 2. From February 1, 2005 to April 12, 2010, the Veteran's cervical spine DJD was manifested by painful motion; however forward flexion was not limited to 30 degrees or less, combined range of motion was not limited to 170 degrees or less, and there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, or separately ratable neurological impairment. 3. Since April 13, 2010, the Veteran's cervical spine DJD has been manifested by painful motion; however, forward flexion has not been limited to 15 degrees or less, and there has been no ankylosis of the cervical spine or separately ratable neurological impairment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, from February 1, 2005 to April 12, 2010, the criteria for a 10 percent rating, but no higher, for IBS are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2013). 2. Since April 13, 2010, the criteria for a rating in excess of 10 percent for IBS have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319. 3. From February 1, 2005 to April 12, 2010, the criteria for an initial rating in excess of 10 percent for cervical spine DJD have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). 4. Since April 13, 2010, the criteria for a rating in excess of 20 percent for cervical spine DJD have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with the Veterans Claims Assistance Act (VCAA) notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the issues herein decided. In June 2010 and December 2011, the Board remanded the claims for additional development. In response to those remand directives, the AOJ afforded the Veteran a VA examination in September 2010, provided additional VCAA notice, requested the Veteran provide information regarding his treatment providers, and obtained all outstanding VA treatment records. As noted in the remand portion of the decision, additional development is needed to determine whether extraschedular ratings are warranted; however, regarding the claims of entitlement to increased schedular ratings, the AOJ has substantially complied with the prior remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). IBS The Veteran's IBS has been evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, a noncompensable disability rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. A maximum 30 percent disability rating is warranted for severe irritable colon syndrome productive of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this case, resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent initial rating for IBS is warranted from February 1, 2005 to April 12, 2010; however, the evidence preponderates against finding that a schedular rating in excess of 10 percent is warranted at any time during the appeal period. The Veteran's service treatment records reflect that in January 2004, he reported having intermittent diarrhea approximately 5 times per week. He said he had one normal bowel movement in the morning and 1-3 loose movements later in the day. He reported having gas and occasional burning, but no abdominal cramping. Prior to his separation examination, it was noted that he had chronic diarrhea and would continue with dietary support, i.e., maintaining a high fiber diet and taking supplements. Post-service, the Veteran complained of similar symptoms during a June 2005 VA examination. He reported that he had a normal stool in the morning followed by 2-3 watery stools later in the day. He indicated that he had good weeks and bad weeks. He reported having abdominal pain and cramping during bad episodes. He denied constipation. He indicated that he was taking acidophilus and Citrucel for gas. VA outpatient treatment records dated in July 2005 reflect the Veteran's reports of similar symptoms. He described having intermittent cycles of diarrhea with upward of five bowel movements per day, but without pain or excessive bloating. He reported that in the prior 8 months, he had "intermittent bouts of diarrhea with discreet episodes once every 3 months." It was noted that he treated his symptoms with acidophilus. A colonoscopy was normal and the gastroenterologist's impression was that the Veteran probably had an acute infection in service with persistent gut motility dysfunction. During a September 2005 VA general medical examination, the Veteran reported having a normal bowel movement in the morning followed by 1-2 watery bowel movements later in the day. It was noted that a recent endoscopy with biopsy did not reveal significant mucosal findings. VA outpatient treatment records reflect that the Veteran was not having any bowel problems in June 2007. He said he had been traveling in Africa and had not had any diarrhea. He also reported having no bowel problems in December 2008. In May 2009, he reported that he had diarrhea 4 days prior after eating out. In January 2010, it was noted that he had no diarrhea, bloating, or constipation; he was given Cipro for diarrhea as a prophylaxis because he was traveling to Africa. During a September 2010 VA examination, the Veteran reported having one normal bowel movement in the morning with no discomfort followed by 2 additional watery bowel movements later in the day proceeded by abdominal discomfort with mild urgency followed by about 30 minutes of mild ache. He denied constipation. He said he treated his symptoms with probiotics and believed that this had helped him. He reported that he often traveled to Africa for work and was unable to use the supplements the entire time period. He said that after he used up the supplements, his symptoms would slowly increase to bowel movements 5 times per day with increased cramping. The examiner diagnosed the Veteran with chronic diarrhea/irritable bowel disorder (IBD) with occasional overall mild episodes of abdominal distress. The examiner noted that VA outpatient treatment records reflected minimal symptoms; however, the Veteran had subjective reports of mild to moderate symptoms. A December 2011 VA outpatient treatment note reflects that the Veteran had no bowel problems. In various lay statements, the Veteran reported that he treated his IBS with supplements. In October 2006, he indicated that when he worked in Africa, he was unable to use the supplements and that he experienced more frequent episodes of bowel disturbance with abdominal distress. In his February 2007 substantive appeal (VA Form 9), he argued that he was taking supplements at the time he was evaluated. He said that when he was unable to take his supplements while working overseas, his symptoms increased to as many as 5 diarrhea episodes daily with abdominal distress. From February 1, 2005 to April 12, 2010, a noncompensable rating has been assigned for the Veteran's IBS. To warrant a 10 percent rating, there must be evidence of moderate IBS with frequent episodes of bowel disturbance with abdominal distress. A review of the medical evidence reflects some evidence that supports a higher 10 percent rating and some that does not. The June 2005 and September 2005 VA examination reports suggest fairly frequent episodes of diarrhea or bowel disturbances; however, the VA outpatient treatment records reflect only mild symptoms with intermittent or occasional episodes of diarrhea or bowel disturbance. The Board, however, acknowledges the Veteran's argument that he was taking supplements to treat his symptoms and that when he is unable to take these supplements (e.g. while traveling overseas), his symptoms worsen. Therefore, without the use of supplements, his symptoms are more suggestive of moderate IBS with frequent episodes of bowel disturbance and abdominal distress. In Jones v. Shinseki, the Court determined that the Board erred when it considered the ameliorating effects of medication to evaluate a veteran's IBS when those effects were not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In light of the Veteran's argument and the Court's analysis in Jones, the Board finds that the evidence is, at the very least, in equipoise as to the question of whether the Veteran's IBS symptoms were moderate during this time period. Therefore, a higher 10 percent rating for IBS is warranted from February 1, 2005 to April 12, 2010. However, at no time during the appeal period has a schedular rating higher than 10 percent been warranted for IBS. To warrant a higher 30 percent rating, the evidence must show severe IBS with diarrhea, or alternative diarrhea and constipation, with more or less constant abdominal distress. In this regard, the evidence does not reflect near constant abdominal distress. In June 2005, he reported having abdominal pain and cramping only during bad episodes and he denied any constipation. In July 2005, he indicated that he had upwards of 5 bowel movements a day but without pain or excessive bloating. He reported having no bowel problems in June 2007 and December 2008. In September 2010, he said he had some abdominal discomfort proceeding 2 bowel movements a day followed by 30 minutes of mild ache. Without supplements, he said he had upwards of five bowel movements per day with increased cramping, but the evidence does not reflect more or less near constant abdominal distress. Furthermore, the examiner opined that the Veteran's reported subjective symptoms were mild to moderate. Hence, based on the foregoing, the Board finds that a schedular rating in excess of 10 percent is not warranted for IBS at any time during the appeal period. Cervical Spine Disability The Veteran's service-connected cervical spine DJD has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for cervical strain. Disabilities of the spine, including arthritis/DJD, are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a combined range of motion of the cervical spine greater than 170 but no greater than 335; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. In this case, the evidence reflects that the Veteran has also been diagnosed with DDD (i.e., intervertebral disc syndrome (IVDS)), which is a nonservice-connected condition. As noted in the introduction, the issue of entitlement to service connection for cervical spine DDD has been referred to the AOJ for appropriate action. However, where it is not possible to distinguish the effects of a nonservice- connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Here, the medical evidence does not clearly distinguish between the Veteran's cervical spine DJD and DDD. Hence, for the purpose of determining the appropriate schedular rating, the Board has considered all of the Veteran's cervical spine symptoms in evaluating his service- connected cervical spine DJD. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In this case, a 10 percent initial rating has been assigned for the Veteran's cervical spine disability from February 1, 2005 to April 12, 2010, and a 20 percent rating has been assigned since April 13, 2010. For the reasons discussed below, the Board finds that the evidence does not warrant higher schedular ratings during these time periods. A July 2005 VA outpatient treatment record reflects the Veteran's complaints of neck pain especially when looking to the right. He also complained of pain on the left side of his neck, which felt better when he stretched it and applied heat. On examination, he had limited range of neck rotation to the right. A September 2005 VA examination report reflects normal cervical spine curvature. During range of motion testing, forward flexion was limited to 50 degrees without pain. Extension was limited to 30 degrees without pain and to 40 degrees with pain. Left lateral flexion was limited to 30 degrees without pain and to 40 degrees with pain. Right lateral flexion was limited to 40 degrees without pain. Left lateral rotation was limited to 50 degrees with pain at the endpoint. Right lateral rotation was limited to 70 degrees without pain. There was no additional loss of range of motion due to fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. There was no spasm, weakness, tenderness, or ankylosis. There was decreased sensation to light touch and pinprick in the C5-T1 distribution. X-rays showed minimal disc space narrowing and osteophyte formation throughout consistent with degenerative disease. The diagnosis was degenerative disease of the cervical spine. The examiner opined that the Veteran's DJD of the neck was as likely as not related to service, noting that there was some limitation of cervical spine range of motion but no cervical radiculopathy. The examiner indicated that the Veteran had sustained a gunshot wound to the left shoulder, which led to deficits in light touch and pinprick sensations. A November 2005 VA outpatient treatment record reflects the Veteran's complaints of worsening neck pain. It was noted that x-rays showed DJD and that he had a flexion sprain when a bullet hit the back of his kevlar. The pain was in the right occiput and radiated over the top of his right scapula. On examination, his neck had limited rotation to the left with a lot of pain against resistence. He had full rotation to the right to 80 degrees. Right occiput tenderness was noted. The impression was cervical spine DJD probably exacerbated by left shoulder injury. He was prescribed Flexeril when his symptoms became bothersome and referred for physical therapy. A September 2010 letter from a private chiropractor (C.E.B.) indicates that the Veteran had been under his care for DDD, DJD and associated sequelae since 2005. He had been treated for multiple exacerbations of cervical spasm, neurological impingement (thoracic outlet syndrome) and intermittent paresthesias into his left arm and hand. The chiropractor indicated that the Veteran's condition was progressive, and was aggravated by prolonged air and automobile travel as well as having to carry heavy gear in a backpack. He opined that the Veteran's condition would benefit from limited long distance travel and limited activities that place excessive stress on his cervical spine and upper back. The chiropractor noted that significant findings in August 2010 included "active cervical range of motion decreased in all directions by 25%; light touch decreased in the left upper extremity C5-T1; muscle strength C5-T1 is also 3+ out of 5 in the upper left extremity. DTR's are 2+ on the right cide C6 and C7 and 1+ on the left side. Foraminal compression induced pain in the left upper extremity; patient also has myofascial pain syndrome bilaterally in his trapezius, levator scapulae, scalenes, and SCM's. Patient has segmental joint dysfunction in his upper and lower cervical spine and upper thoracic spine." During a September 2010 VA examination, the Veteran reported having a history of neck pain with treatment by a private chiropractor. He reported having constant pain ranging from 1 to 7-8/10. On average, he evaluated the pain as 2-3/10. He said he usually sought treatment from a chiropractor when his pain was 6/10, usually one to three times per month. He said the pain was usually on the right side, but he also occasionally had pain on the left side. It was noted that he sustained a serious gunshot wound to the left anterior shoulder resulting in a tingling sensation and numbness in the left arm. He said he had flare-ups with pain estimated at 8/10 two to three times a month, usually with sleeping. He said flare-ups were precipitated by pulling motions with his arms, pushing with his upper body, and head position with sleep. Chiropractic treatment usually alleviated his symptoms. He estimated that he had to cut back 80 percent during flare-ups. He reported that he was able to perform all activities, but slowed. On examination, it was noted that the Veteran held his head stiffly. On range of motion testing, forward flexion was limited to 20 degrees with pain to 30 degrees. Extension was limited to 35 degrees with pain at the endpoint. Left lateral flexion was limited to 10 degrees with pain to 20 degrees. Right lateral flexion was limited to 45 degrees with pain to 60 degrees. Bilateral lateral rotation was limited to 45 degrees with pain to 60 degrees. Range of motion was limited by pain following repetitive use or during flare-ups. There was no additional reported loss of function due to fatigue, weakness, lack of endurance, incoordination. There was no evidence of guarding, spasm, weakness, gross postural abnormalities, or fixed deformity (ankylosis). There was mild paraspinal tenderness to palpation. There was no suspected peripheral neurological involvement due to the cervical spine and no incapacitating episodes in the prior 12 months. It was noted that the tingling and numbness in the left arm was likely related to the gunshot wound to the left shoulder. X-rays showed stable multilevel degenerative disease, most prominent at the C5-C6 and C6-C7 levels. The impression was post- traumatic degenerative changes of the cervical spine with mild to moderate functional impairment subjectively reported. As noted above, a 10 percent rating has been assigned for the Veteran's cervical spine disability from February 1, 2005 to April 12, 2010. A higher 20 percent rating is not warranted under the General Rating Formula during this time period because cervical spine forward flexion was not limited to 30 degrees or less, the combined range of motion for the cervical spine was not 170 degrees or less, and there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In September 2005, forward flexion was to 50 degrees without pain (i.e., better than normal) and combined range of motion was to 270 degrees without pain or with pain only at the endpoint of that range. Furthermore, there was no additional loss of motion after repetitive testing, no spasm, and no abnormal contour. Hence, there is no evidence that any of the Deluca factors (pain, weakness, fatigue etc.) resulted in functional impairment/increased loss of motion which would warrant a higher rating. Since April 13, 2010, a 20 percent rating has been assigned for the Veteran's cervical spine disability. A higher 30 percent rating is not warranted under the General Rating Formula because the evidence has not shown cervical spine forward flexion to 15 degrees or less or favorable ankylosis of the entire cervical spine. The Veteran's private chiropractor indicated that range of motion was limited in all directions by 25 percent, which would be to about 33- 34 degrees on forward flexion. During the September 2010 VA examination, forward flexion was limited to 20 degrees without pain and to 30 degrees with pain. The examiner indicated that there was no fixed deformity or ankylosis. Although the Veteran reported having flare-ups 2-3 times per month and having to "cut back" 80 percent, the evidence does not show that such flare-ups resulted in functional impairment/increased loss of motion that would warrant a higher rating. In this regard, the Veteran reported that he sought private chiropractic treatment during flare-ups, which alleviated his symptoms. However, his chiropractor indicated that range of motion was only diminished by 25 percent. Hence, the evidence does not reflect that a rating higher than 20 percent has been warranted even when considering flare-ups and other DeLuca factors. The Board has also considered the Formula for Rating IVDS Based on Incapacitating Episodes; however, there has been no evidence that the Veteran has had incapacitating episodes requiring physician-prescribed bed rest. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, the evidence does not reflect that the Veteran has neurologic impairment associated with his cervical spine disability that warrants a separate compensable rating. The September 2005 VA examiner indicated that there was no cervical radiculopathy. Although the Veteran's chiropractor indicated that foraminal compression induced pain in the left upper extremity, the September 2010 VA examiner noted that tingling and numbness in the left upper extremity was due to a serious gunshot wound to the left shoulder. The Board notes that he is separately rated for residuals of the gunshot wound and is receiving a 30 percent evaluation for muscle damage and a 20 percent evaluation for nerve damage. To compensate the Veteran for overlapping symptomatology under different diagnoses would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013). All Increased Rating Claims The Board has considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to his IBS and cervical spine, including the frequency of bowel movements, diarrhea, neck pain, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. The Board has also considered the decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. Here, the evidence indicates that the Veteran was employed as a military consultant. In December 2011, it was noted that he had a 1- year residency at the Marine Corps Command and General Staff College. As noted in the Board's previous remands, although there is some suggestion of marked interference with employment, he has not claimed and the evidence does not otherwise show that he is unable to secure or follow substantially gainful employment due to any of his service- connected disabilities. Accordingly, a claim of entitlement to a total disability rating based on individual unemployability due to IBS and cervical spine DJD is not deemed to be a component of the current appeal. In this case, the Board concludes that there is no basis for further staged ratings of the Veteran's IBS and cervical spine DJD. A higher 10 percent rating for IBS is warranted from February 1, 2005 to April 12, 2010; however, a rating higher than 10 percent is not warranted at any time during the appeal period. Furthermore, higher ratings for cervical spine DJD are not warranted. In reaching this decision, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a 10 percent schedular rating, but no higher, for IBS from February 1, 2005 to April 12, 2010, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a schedular rating in excess of 10 percent for IBS since April 13, 2010, is denied. Entitlement to an initial schedular rating in excess of 10 percent for cervical spine DJD from February 1, 2005 to April 12, 2010, is denied. Entitlement to a schedular rating in excess of 20 percent for cervical spine DJD since April 13, 2010, is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the claims of entitlement to extraschedular ratings for the disabilities on appeal. See 38 C.F.R. § 19.9 (2013). In December 2011, the Board remanded the claims for increased ratings, in part, to provide the Veteran with VCAA notice regarding possible extraschedular ratings for the disabilities on appeal, to undertake any additional develop deemed necessary to satisfy a showing of marked interference with employment, and to consider whether referral for extraschedular consideration was warranted. The Board indicated that necessary development might include requesting from the Veteran additional financial, tax, employment, medical or other relevant information. In January 2012, the AOJ sent a letter to the Veteran requesting that he identify all private and VA medical care providers who had treated him for the disabilities on appeal. The letter notified him that in "in rare cases, we can assign a disability level other than the levels found in the schedule for a specific condition if your impairment is not adequately covered by the schedule." The AOJ notified him that VA considers impact of the condition and symptoms on employment and would consider evidence such as statements from employers as to job performance, lost time, or other information regarding how his conditions affected his ability to work. The letter, however, did not provide specific notice as to the factors considered in determining whether an extraschedular evaluation is warranted (i.e., evidence of marked interference with employment or frequent periods of hospitalization or other factors that render impractical the application of the regular schedular standards). See 38 C.F.R. 3.321(b) (2013). The letter did not specifically request that he submit any of the evidence the Board indicated might be deemed necessary for this determination except for information regarding his medical care providers. In the September 2012 supplemental statement of the case, the AOJ determined that the evidence did not show any unusual or exceptional circumstances, such as marked interference with employment, and that referral to the Director of Compensation ad Pension Service was unnecessary. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, although the Board's directives left some discretion regarding the necessary development regarding extraschedular consideration, the notice provided to the Veteran did not specifically inform him of or request the evidence needed to show entitlement to an extraschedular evaluation. Because the Veteran has submitted evidence indicating that his IBS interferes with his ability to work effectively overseas and that his cervical spine disability interferes with his ability to travel long distances for work, the Board finds that development and referral for extraschedular consideration is necessary to fairly adjudicate the Veteran's claims. The record also reflects that the Veteran receives ongoing treatment from the West Haven VA Medical Center (VAMC). Currently the record includes treatment records from the West Haven VAMC through December 2011 (see Virtual VA electronic file). An attempt should be made to obtain any outstanding treatment records. Accordingly, the case is REMANDED for the following actions: 1. Send a letter to the Veteran specifically explaining what is needed to support a claim for a higher extraschedular evaluation, pursuant to 38 C.F.R. § 3.321(b). Request that he submit or identify any evidence showing marked interference with employment, to include but not limited to, employment records, financial or tax records, and any medical or other documentation that addresses the effect of his IBS and cervical spine disability on his employment from February 2005 to the present. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. 2. Obtain any relevant treatment records from the West Haven VAMC since December 2011. 3. Then, refer the claims of entitlement to extraschedular ratings for IBS and cervical spine DJD to the Under Secretary for Benefits or the Director of Compensation. If that review results in a decision denying all possible benefits, return the case to the Board after issuing a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs