Citation Nr: 1512333 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 07-25 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a rating in excess of 40 percent for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea. 3. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disability (TDIU). 4. Entitlement to a temporary total rating for service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1986 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision in July 2006 and November 2007 by or on behalf of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board reopened the claim for entitlement to service connection for a low back disability and remanded the issues on appeal for further development in April 2011. The Board notes that in testimony in January 2007 and in correspondence dated in September 2011 the Veteran raised specific service connection claims for arthritis of multiple joints (unspecified type), chronic fatigue syndrome, and irritable bowel syndrome. The Agency or Original Jurisdiction(AOJ) addressed the chronic fatigue syndrome and irritable bowel syndrome claims in correspondence dated in November 2012, but these specific claims have not been adjudicated and are not presently before the Board on appeal. A November 2014 rating decision, among other things, granted entitlement to a separate 30 percent rating for major depressive disorder and noted that depression had previously been considered as part of the service-connected disability for residuals of an undiagnosed illness. On appeal is the issue of entitlement to a disability rating in excess of 40 percent for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea. Such may possibly involve overlapping signs or symptoms with the claims for service connection for generalized arthritis, chronic fatigue syndrome, and irritable bowel syndrome. However, the Board finds the new claims are not inextricably intertwined with the increased rating or TDIU issues on appeal. They are most appropriately addressed separately with adequate consideration of the provisions of 38 C.F.R. § 4.14 to avoid pyramiding. Indeed, it is significant to note that the Veteran does not assert that the analogous diagnostic code criteria (5025 Fibromyalgia) under 38 C.F.R. § 4.71a considered for the assigned 40 percent rating in his case is inappropriate or inadequate, and that unlike other diagnostic code rating criteria for systemic diseases (for example, 5002 Rheumatoid Arthritis) these applicable criteria do not provide for separate and/or separate and combined ratings with specific symptom manifestations such as limitation of motion. The effects of any change of diagnosis should also be considered. 38 C.F.R. § 4.13 (2014). For these reasons, the issues of entitlement to service connection for generalized arthritis of multiple joints, chronic fatigue syndrome, and irritable bowel syndrome are referred to the AOJ for adjudication. FINDINGS OF FACT 1. The evidence demonstrates that a chronic low back disability was not manifest during active service, arthritis of the lumbar spine was not identified within a year of service discharge, and the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative disc disease, and degenerative disc bulging at L4-L5 are a result of active service. 2. The Veteran is presently in receipt of the highest schedular rating possible under the applicable rating criteria for an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea. 3. The Veteran's service-connected disabilities do not demonstrate an unusual disability picture. 4. The Veteran is not shown to have been unable to obtain or maintain gainful employment as a result of service-connected disabilities. 5. The Veteran's claim for an increased, temporary total rating for his service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001, was received by VA on July 6, 2007, more than one year after his surgical treatment. CONCLUSIONS OF LAW 1. A low back disability was not incurred or aggravated as a result of active service or a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2014). 2. The criteria for a rating in excess of 40 percent for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.20, 4.71a Diagnostic Codes 8850, 5025 (2014). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (2014). 4. The criteria for a temporary total rating for service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.30 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in November 2005 and August 2007. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records, and statements and testimony in support of the claims. The Veteran was notified of the records VA obtained, of the efforts made to obtain records, of the action to be taken by VA with respect to the claims, and that he was ultimately responsible for providing evidence in support of his claims. The development requested on remand in April 2011 has been substantially completed. The Board finds there is no evidence of any additional existing pertinent records. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The combined April 2007 and August 2012 VA examination reports sufficiently addressed the credible evidence as to the Veteran's low back disability claim. The examinations of the Veteran's service connected undiagnosed illness likewise adequately address the various symptoms attributed to that disorder. Further, as the Veteran has maintained employment since at least 2005, which in itself bars the assignment of a TDIU, the adequacy of any examination used to assess his employability is essentially immaterial. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Finally, during the January 2007 RO hearing, the Decision Review Officer discussed with the Veteran the issues on appeal, the evidence required to substantiate the claims, and asked questions to elicit information relevant to the claims. This action supplemented VA's compliance with the VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service Connection Claim Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a) (2014). VA will not concede, however, that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Certain chronic diseases, such as degenerative joint disease (as arthritic disease), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2014). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). VA regulations provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (effective before and after Dec. 29, 2011). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 (Aug. 3, 1998). "The very essence of an undiagnosed illness is that there is no diagnosis." Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran's symptoms "cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117"). In this case, the Veteran contends that he has a present low back disability as a result of active service. He reports that he sustained a low back injury with pain and numbness to the left leg in service and that he had continued to experience pain, off and on, since that injury. He testified, in essence, that during the years after service and before seeking medical care for back problems he had used over-the-counter treatments. He denied having sustained any work-related back injuries. Service treatment records show he was seen once during service for a back disorder when he strained his back during a road march in January 1987. It was noted he complained of pain radiating into the legs above the knees. The Veteran denied having had recurrent back pain in a December 1988 report of medical history. A May 1991 separation examination revealed a normal clinical evaluation of the spine. VA and private treatment records show the Veteran first reported the onset of low back pain in approximately November 1996 with no known cause. Treatment records prior to that date are negative for complaint, treatment, or diagnosis related to a low back disorder. A September 1996 private treatment report noted the Veteran's job involved heavy lifting. At his VA Persian Gulf examination in January 1997 the Veteran reported that since returning from Southwest Asia he had experienced joint pain primarily to the legs, stomach problems, fatigue, and back pain. Private medical records show a February 1997 total body bone scan was within normal limits and that a February 1997 magnetic resonance imaging (MRI) scan revealed minimal degenerative disc bulging at L4-L5. The MRI report also noted there was no evidence of spinal stenosis, herniated nucleus pulposus/focal disc extrusion, intervertebral foraminal narrowing, or lateral recess stenosis. An April 1997 private treatment report noted he had worked the previous evening with lots of lifting and bending. On VA examination in March 1998 the Veteran reported having had progressively increasing musculoskeletal complaints for a year or two. He complained of having had a lot of discomfort in the lower back. An examination of the back revealed normal alignment with forward flexion only to about 30 degrees. The diagnoses included polymyalgias and stiffness with polyarthralgias. In a September 1998 addendum the examiner noted the Veteran did not have a well-described connective tissue disease, but that he did appear to have a chronic pain syndrome that is similar to fibromyalgia including fatigue and more muscle stiffness than is typical. A September 1999 private bone scan revealed mild scoliosis that may be partly positional with some irregularity of uptake in the vertebral column suggestive of spondylosis, costovertebral and facet arthritis, and lumbar discogenic disease. No opinion as to etiology was provided. A January 2001 VA rheumatology consultation report noted that the Veteran complained low back pain since 1991. The diagnoses included low back pain without opinion as to etiology. A January 2001 radiological report noted a history of low back pain for nine years that was progressively worsening. Private treatment records include an October 2004 MRI report noting mid back pain radiating to the low back and lower extremities. Alignment of the lumbar spine was normal. There were minimal disc bulges at L3-4 and L4-5. Similar findings were reported in a December 2005 MRI report. Records show he underwent hemilaminectomy at L4-5, left partial medial facetectomy and foraminotomy, and partial diskectomy. An April 2007 VA spine examination included a diagnosis of degenerative disc disease of the lumbar spine. It was noted, in essence, that the Veteran reported its onset in 1987. However, the examiner noted the Veteran was treated for lumbar strain while in service that apparently resolved because there was no further functional interference from his back pain, no profile was issued to restricted duties, and he had a normal discharge examination. The examiner stated, additionally, that there was documentation revealing that the Veteran reported he hurt his back while lifting at his civilian employment. The examiner also noted that there was no documentation of a back disorder from discharge until almost ten years later. VA treatment records include a November 2007 social work consultation noting that the Veteran reported he had not worked in two years due to having hurt his back when he bent over to tie his shoe and could not get back up. It was noted that he had been on extended sick leave for almost two years. In correspondence dated in November 2008 the Veteran, in essence, disputed the report that he had injured his back while lifting during civilian employment. He reiterated his claim that a low back disability developed during active service. VA examination in August 2012 included diagnoses of early degenerative disc disease at L4-L5 and personal history of bulging disc at L4-L5. It was also noted that imaging studies documented arthritis to the thoracolumbar spine. The examiner found that the Veteran's early degenerative disc disease at L4-L5 had an etiology in response to the natural aging progression, but stated that an opinion as to the diagnosis of a personal history of bulging disc at L4-L5 could not be provided without resorting to mere speculation based upon a self-reported history without supporting evidence. It was noted that the claims file was reviewed, but no specific references were provided as to the January 1987 service treatment diagnosis of back strain nor of the February 1997 MRI findings of minimal degenerative disc bulging at L4-L5 Given the above, the Board finds that the evidence demonstrates a chronic low back disability was not manifest during active service, that arthritis of the lumbar spine was not identified within a year of service discharge, and that the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative disc disease, degenerative disc bulging at L4-L5, and low back signs and symptoms separate and distinct from his service-connected undiagnosed illness are a result of active service. The April 2007 VA examiner's opinion is persuasive that the Veteran's back strain during service in January 1987 resolved prior to discharge. The medical evidence of record dates the onset of his present low back problems to 1996, approximately five years after his discharge from active service. Private treatment records dated in 1996 and 1997 also noted the Veteran worked at a job that involved a lot of heavy lifting and bending. There is no competent evidence relating the Veteran's degenerative disc disease or degenerative disc bulging at L4-L5 to an event in service, nor is there any competent evidence indicating that these disorders have been caused or aggravated by a service-connected disability. The Board also notes that service connection is established for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea, and that a rating has been assigned under the diagnostic criteria for fibromyalgia. The applicable rating criteria for his 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5025, include widespread musculoskeletal pain and tender points with or without associated stiffness, paresthesias, or Raynaud's-like symptoms. As VA regulations prohibit the pyramiding of ratings, this decision only addresses the Veteran's diagnosed degenerative disc disease and degenerative disc bulging at L4-L5. 38 C.F.R. § 4.14. There is no evidence of any additional low back signs and symptoms that are separate and distinct from his service-connected undiagnosed illness are a result of active service. Additionally, as degenerative disc disease and degenerative disc bulging at L4-L5 are attributed to known clinical diagnoses, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98; Stankevich, 19 Vet. App. at 472; Gutierrez, 19 Vet. App. at 10. The Veteran's claimed history of low back symptomatology since service is inconsistent with the evidence of record. Emphasis is placed on the fact that he made no reference to low back symptomatology at the time of his service discharge, and that there is no evidence of complaints, treatment, or diagnosis of a low back disorder until 1996, which is more than five years after service discharge. Significantly, records from 1996 do not relate the Veteran's low back complaints to service. His statements as to having had low back symptoms that continued after his January 1987 injury are not credible. In determining whether evidence submitted by a claimant is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Moreover, the April 2007 VA examiner found that the Veteran's lumbar strain in service resolved prior to discharge and the August 2012 VA examiner found his early degenerative disc disease at L4-L5 was related to the natural aging progress. The Veteran's history during and soon after service was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board further finds that, while there is no evidence of a specific job-related injury in 1996, the evidence clearly demonstrates that for some number of years after service the Veteran was able to engage in strenuous civilian employment that involved heavy lifting and bending. The February 1997 MRI findings of minimal degenerative disc bulging at L4-L5 and the Veteran's own reports of the onset of low back pain in approximately November 1996 during private medical treatment are also persuasive that he had no earlier chronic back problems. Consideration has been given to the Veteran's personal assertion that that his back disorder is related to this active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Arthritis and chronic spine disabilities are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, and the evidence shows that specific criteria are required to properly assess and diagnose such disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report symptoms such as back pain, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating knee disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. His lay opinion is also outweighed by the medical opinions of record. In conclusion, the Board finds that service connection for a low back disability is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the service connection claim. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2014). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2014). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2014). Disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). A separate rating, however, must be based upon additional disability. If the claimant does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). VA rating aids provide instructions for the application of an analogous rating for an undiagnosed illness. See VA Adjudication Procedure Manual (M21-1MR), part IV, subpart ii, chapter 2, section D, subsection 16. The function affected, anatomical localization, or symptomatology of an undiagnosed illness cannot be analogous if rating criteria require objective evidence of a diagnosed disability. See Stankevich, 19 Vet. App. at 472. A disorder unlisted in the rating schedule may be evaluated under a listing for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2014). As an initial matter, the Board notes that service connection was initially established for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, diarrhea, and depression in a December 1998 rating decision. A 20 percent rating was assigned under the analogous criteria for Diagnostic Codes 8850-5025. The Diagnostic Code 8850 for an undiagnosed disability is applied when the condition is analogous to musculoskeletal diseases. See M21-1MR, IV.ii.2.D.16.f. A July 2002 rating decision granted an increased 40 percent for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, diarrhea, and depression under the analogous criteria for Diagnostic Codes 8850-5025. The present appeal arose from an increased rating claim received by VA on October 31, 2005. A November 2014 rating decision established a separate 30 percent rating for major depressive disorder effective October 31, 2005, and redefined the Veteran's service-connected disability rated under the analogous criteria for Diagnostic Codes 8850-5025 without depression. The Rating Schedule provides a maximum 40 percent rating for fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms when those symptoms are constant, or nearly so, and are refractory to therapy. It is also noted that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a Diagnostic Code 5025 (2014). VA has the "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2014). The Board finds that based upon the evidence of record that the Veteran's service-connected residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea are adequately evaluated under the assigned Diagnostic Codes 8850-5025. Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). As the assigned 40 percent rating is the maximum schedular rating possible under these diagnostic codes, the claim for an increased schedular rating is denied. The Board acknowledges that undiagnosed illness disabilities are complex medical matters and that the Veteran contends, in essence, that higher alternative or separate ratings are warranted. He has not identified any additional specific symptom manifestations not addressed by the rating on appeal and his service-connected undiagnosed illness disability was thoroughly evaluated in an August 2012 VA examination. As noted in the introduction section of this decision, his specific service connection claims for arthritis, chronic fatigue syndrome, and irritable bowel syndrome have been referred for adjudication. The Board finds that based upon the available evidence the service-connected disability is adequately rated under the analogous criteria for Diagnostic Code 5025 and that higher alternative or separate analogous ratings are not warranted. The pertinent medical evidence in this case show that on VA examination in December 2005 the Veteran was well developed, well nourished, and in no acute distress. The examiner noted tenderness to palpation of the abdomen, tenderness to palpation of almost all joints with full range of motion, and some weakness in the muscle groups with an inability to move his legs against resistance. It was noted, however, that he ambulated without difficulty and was able to get onto and off the examination table without difficulty. The diagnoses included chronic fatigue of unclear etiology, polymyalgias of unclear etiology, and abdominal pain with alternating diarrhea and constipation of unclear etiology. VA treatment records show an EMG study in April 2006 was normal with no evidence of myopathy, mononeuropathy, or polyneuropathy. A neurological evaluation in July 2006 was significant for a lot of give way weakness without evidence of proximal atrophy or evidence of myopathy. The examiner noted the Veteran was well developed and in no acute distress. At his January 2007 hearing the Veteran testified that he was unable to work primarily because of back disability, but that he had other joint pains and aches. He reported that he had last worked in December 2006 and that he had been employed in that job since July 2004. On VA examination in April 2007 the Veteran reported he felt sluggish and that his joints ached all the time. Debilitating fatigue and restriction of daily activities were denied. He reported occasional generalized muscle aches, frequent sleep disturbance, frequent inability to concentrate, and occasional headaches. It was noted he was currently on medical leave from employment because of back pain and not due to the fatigue issue. Physical examination revealed no weight change. The examiner noted that at least six of the ten chronic fatigue syndrome diagnostic criteria had not been met. There were current symptoms of fibromyalgia including diarrhea, constipation, and musculoskeletal symptoms. The symptoms were noted to be episodic and present one-third of the time or less. They were precipitated or exacerbated by cold or damp weather and overexertion. No trigger point tenderness was noted upon palpation. The examiner provided a diagnosis of subjective complaints of myalgia without objective evidence of inflammatory or connective tissue diseases. There was no functional impairment of any muscle or muscle group. Fibromyalgia was not currently active. It was noted there were no effects of the problem on usual daily activities. The examiner also found there was no functional left knee impairment and that there were no effects from a history of hemorrhoids on his usual daily activities. On VA examination in March 2010, the Veteran reported having diarrhea two or three times per week. There was no weight change and no constitutional symptoms of arthritis. It was also noted that the Veteran reported he was currently employed as a janitor working fulltime and that he had been employed for five years. He stated he had lost time from employment over the previous 12-month period due to knee swelling. The examiner found there was no clinical evidence of a present left knee disorder associated with a previous dislocation. VA fibromyalgia examination in August 2012 noted the Veteran required continuous medication to control his fibromyalgia symptoms and that his symptoms were refractory to therapy. Current signs and symptoms of fibromyalgia included widespread musculoskeletal pain, stiffness, and irritable bowel symptoms. The symptoms were noted to be constant or nearly constant. All trigger points were detected, bilaterally. The examiner found there were no other pertinent physical findings, complications, conditions, or signs or symptoms related to the diagnosis of fibromyalgia. It was noted that the Veteran's fibromyalgia impacted his ability to work, but that he was employed in janitorial services with employer accommodation of his ability to fulfill assigned duties based upon his own schedule in response to his stated symptoms. An August 2012 VA psychiatric examiner found the Veteran's mental health conditions would not render him unable to obtain or maintain gainful employment. It was noted that he was presently employed and had been employed for about nine years. It was noted that the Veteran had previously experienced some difficulty keeping up with production due to physical health problems, but that he had been moved to a janitorial position that allowed him to work at a slower pace and that his supervisor was understanding and flexible. The examiner stated that a job among a crowd, one involving a lot of people, or one requiring much social interaction would not be recommended for the Veteran. Under Diagnostic Code 5025, a 40 rating is assigned for fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms when those symptoms are constant, or nearly so, and are refractory to therapy. The maximum schedular rating has been assigned in this case for an undiagnosed illness analogous to fibromyalgia since May 29, 2001. The Board has considered whether higher or separate ratings are warranted under alternative possible analogous diagnostic codes, and finds no basis for any such ratings. The available evidence does not demonstrate the Veteran's service-connected undiagnosed illness disability is manifested by symptoms such as constitutional manifestations of an active systemic arthritis disability, loss of sphincter control with extensive leakage and fairly frequent involuntary bowel movements, or symptoms of debilitating fatigue and cognitive impairments distinct from a separately service-connected disability that are nearly constant and restrict routine daily activities. See 38 C.F.R. § 4.71a, 4.88b, 4.114 Diagnostic Codes 5002, 6354, 7332 (2014). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2014); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16 . When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2014); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected undiagnosed illness disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the rating assigned herein more than reasonably describe the Veteran's disability level and symptomatology. The criteria for higher alternative ratings have been discussed. Given the foregoing, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115 . With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. The Veteran does not contend, and the evidence of record does not show, that his service-connected disability has caused him to miss work or have resulted in any hospitalizations. The evidence shows that he is currently employed fulltime. The Board finds, therefore, that the Veteran's service-connected disability at issue does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. The Board notes that under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. TDIU A total rating for compensation may also be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2014). For the above 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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, Bureau of the Census, 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. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards are to refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. § 4.16(b). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2014). The Court has held that in determining entitlement to a total disability rating based upon individual unemployability neither nonservice-connected disabilities nor advancing age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. The Veteran requested entitlement to increased ratings for his service-connected disabilities and in correspondence dated in January 2006 asserted he was unable to work because of his service-connected disabilities. He reported that he had been unable to work more than two hours in his scheduled eight hour shift and that he was in constant pain every day. He stated he could not work on automobiles because of joint pain in his hands, legs, and shoulder, that he could not walk more than 200 feet without stopping to rest, and that he could not stand for more than 30 minutes at a time. He stated his disabilities were worse in the winter months and that he could not walk during that time of year. In a January 2006 statement in support, N.R.C., reported having observed the Veteran over the years. She stated the Veteran was in constant pain and unable to work because of his health. In his April 2006 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he had last worked in December 2005 and that he had been too disabled to work since December 2005. He reported he had worked from July 2004 to December 2005 as an "Apexer" with highest gross earnings per month of $1,352. His total earned income over the past 12 months was $24,000. No information as to education level received was provided. The pertinent evidence in this case shows that in January 2007 the Veteran testified that he was unable to work primarily because of back disability. VA examinations in April 2007 noted the Veteran was currently on medical leave from employment because of back pain and not due to the fatigue issue. The examiner provided a diagnosis of subjective complaints of myalgia without objective evidence of inflammatory or connective tissue diseases, and noted there was no functional impairment of any muscle or muscle group. Fibromyalgia was not currently active and was noted to have had no effects of the problem on usual daily activities. The examiner also found there was no functional left knee impairment and that there were no effects from a history of hemorrhoids on his usual daily activities. VA examinations in March 2010 noted that the Veteran reported he was currently employed as a janitor working fulltime and that he had been employed for five years (since 2005). It was noted he stated he had lost time from employment over the previous 12-month period due to knee swelling; however, the examiner found there was no clinical evidence of a present left knee disorder associated with a previous dislocation. VA fibromyalgia examination in August 2012 found the Veteran's fibromyalgia impacted his ability to work, but that he was employed in janitorial services with employer accommodation of his ability to fulfill assigned duties based upon his own schedule in response to his stated symptoms. A review of the record reveals that service connection has been established for major depressive disorder and posttraumatic stress disorder (30 percent from October 31, 2005, and 50 percent from September 28, 2011), residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea (40 percent from May 29, 2001), partial dislocation of the left knee (10 percent from May 29, 2001), and hemorrhoids with anemia (0 percent from January 13, 1997). A combined 60 percent rating has been assigned effective from October 31, 2005, and a combined 70 percent rating from September 28, 2011. The ratings prior to September 28, 2011, do not satisfy the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), with two or more other service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling, or one disability rated 60 percent or more. Although the Veteran has asserted that he was unable to work as a result of his service-connected disabilities prior to September 28, 2011, the Board finds there is no evidence of any unusual or exceptional circumstances related to his service-connected disabilities prior to this date that would put his case outside the norm so as to warrant referral for consideration of a TDIU rating pursuant to 38 C.F.R. § 4.16(b). The record shows that the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) are met for the period from September 28, 2011. The Board finds, however, that the evidence does not demonstrate that the Veteran is unable to obtain or maintain gainful employment as a result of service-connected disabilities. In fact, he is shown to be employed fulltime and no evidence has been provided indicating that his employment is not substantially gainful. Although the August 2012 VA examiners noted the Veteran reported his employer allowed him employment accommodations, there is no indication that he is limited to employment in a protected environment or a sheltered workshop. The evidence demonstrating that the Veteran is presently employed and the opinions of record as to his ability to work are found to be persuasive. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Temporary Total Rating VA law provides that for increased compensation claims an effective date may be assigned from the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date otherwise, from the date of receipt of claim. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400(o)(2) (2014). The terms claim and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). VA regulations provide that total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under applicable criteria effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30 (2014). Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). VA records show that service connection was established for residuals of a partial dislocation of the left knee in a December 1998 rating decision. VA treatment records dated in January 2001 noted the Veteran complained of increased left knee problems. In correspondence dated in May 2001 the Veteran requested an increased rating for his left knee disability. VA examination in October 2001 included a diagnosis of status post left knee arthroscopy with decreased range of motion. No information as to the date of his having undergone left knee surgery was provided. A July 2002 rating decision granted an increased 10 percent rating for residuals of a partial dislocation of the left knee effective May 29, 2001. On July 6, 2007, the Veteran submitted his claim for entitlement to a temporary total rating based upon surgical treatment to the left knee requiring convalescence. He provided copies of private treatment reports showing he underwent left knee arthroscopy and two compartment synovectomy on July 31, 2001. Based upon then evidence of record, the Board finds the Veteran's claim for an increased, temporary total rating for his service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001, was received by VA on July 6, 2007, more than one year after his surgical treatment. Although the Veteran previously submitted a claim for an increased rating in May 2001, there is no evidence he provided VA any information as to his July 31, 2001, surgical treatment prior to July 6, 2007. He did not express disagreement with the July 2002 rating decision and that determination is final and may not be revised absent evidence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a) (2014). No CUE is shown in this case. There is no evidence of a claim for a temporary total rating for the service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001, earlier than July 6, 2007. As the Veteran's claim for an increase was not received within one year of the actual increase due to surgical treatment, the claim must be denied. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to a rating in excess of 40 percent for residuals of an undiagnosed illness with polymyalgia, polyarthralgia, fatigue, abdominal pain, and diarrhea is denied. Entitlement to a TDIU is denied. Entitlement to a temporary total rating for service-connected partial dislocation of the left knee based upon surgical treatment on July 31, 2001, is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs