Citation Nr: 1612063 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 10-43 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for tension headaches prior to December 15, 2010, and an evaluation higher than 30 percent from December 15, 2010. 2. Entitlement to an initial evaluation higher than 10 percent for diarrhea, claimed as irritable bowel syndrome (IBS), prior to January 17, 2015, and an evaluation higher than 30 percent from January 17, 2015. 3. Entitlement to an initial compensable evaluation prior to January 13, 2009, for fibromyalgia with generalized arthralgia; an evaluation higher than 10 percent from January 13, 2009 until December 15, 2010; an increased evaluation higher than 20 percent from December 15, 2010; and an increased evaluation higher than 40 percent from January 17, 2015. REPRESENTATION Veteran represented by: Gentry C. M. Hogan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from October 1987 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 and an April 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned in a videoconference hearing from the RO in November 2012. A transcript of the hearing has been associated with the claims file. In June 2013, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. During the course of the appeal, in a February 2011 decision, the RO increased the evaluation of the Veteran's tension headache disability from noncompensable to 30 percent effective on December 15, 2010. In July 2015, the RO increased the rating of IBS to 30 percent, and the rating of fibromyalgia to 40 percent, both effective from January 17, 2015. These staged ratings do not represent the maximum disability ratings assignable for these disabilities, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claims for a higher rating, as reflected on the title page, remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). In August 2015, the Veteran filed a second VA Form 9. This filing appears to be in response to a supplemental statement of the case (SSOC) issued in July 2015, which readjudicated the issues now on appeal. In that VA Form 9, the Veteran marked that he would like to have a Board hearing. The Board has interpreted this as a motion for a new hearing on the issues now on appeal. This motion must be denied as the Veteran previously testified at a Board hearing in November 2012, and he did not present good cause in the August 2015 VA Form 9 for why a second hearing was warranted. See 38 C.F.R. § 20.704(b). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been presented to the Board as a component of the rating claims now on appeal, and a TDIU claim is not otherwise presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is free to raise such a claim at any time, and the instant determination is in no way intended to represent a finding as to the merits of such a claim, if raised at any point. See 38 C.F.R. § 4.16 (2013); Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for a TDIU, even if previously and finally denied, constitutes a new claim). FINDINGS OF FACT 1. Throughout the period of appellate review prior to December 15, 2010, the Veteran's tension headache disability has not been shown to have been productive of a disability picture more nearly approximating characteristic prostrating attacks averaging one in 2 months over the last several months. 2. Throughout the period of appellate review since December 15, 2010, the Veteran's tension headache disability has not been shown to have been productive of a disability picture more nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Throughout the period of appellate review, the Veteran's irritable bowel syndrome is shown to have been productive of a disability picture more nearly approximating a severe disability with alternating diarrhea and constipation, with more or less constant abdominal distress. 4. Throughout the period of appellate review from January 19, 2005, until December 15, 2010, the Veteran's fibromyalgia disability has been shown to have been productive of a disability picture more nearly approximating symptoms that required continuous medication for control. 5. Throughout the period of appellate review from December 15, 2010, until January 17, 2015, the Veteran's fibromyalgia disability has been shown to have been productive of a disability more nearly approximating fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. 6. Since January 17, 2015, the maximum disability rating has been assigned for fibromyalgia. 7. The signs and symptoms of the Veteran's tension headaches, irritable bowel syndrome, and fibromyalgia are contemplated by the rating schedule. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable disability rating for tension headaches prior to December 15, 2010, and a rating in excess of 30 percent beginning December 15, 2010, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a DC 8100 (2015). 2. The criteria for assignment of an initial 30 percent rating, but no higher, for irritable bowel syndrome are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, DC 7319 (2015). 3. The criteria for assignment of an initial 10 percent rating, but no higher, for fibromyalgia are met prior to January 13, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5025 (2015). 4. The criteria for the assignment of a disability rating in excess of 20 percent beginning from December 15, 2010, and a rating in excess of 40 percent beginning January 17, 2015, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5025 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent a comprehensive letter in January 2005, which was sent prior to the June 2009 and April 2010 rating decisions on appeal. See 38 U.S.C.A. § 5103. Otherwise, the Veteran's claims arise from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated and additional notice is not required. A case-specific notice is not required as to the downstream issues involved in the appeal for a higher initial disability rating, and any other notice defect is deemed not prejudicial. See 38 U.S.C.A. § 5103(a)(1); VAOPGCPREC 6-2014; Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The duty to assist extends to providing assistance to obtain sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance. Sullivan v. McDonald, No. 2015-7076, 2016 WL 877961, at *6 (Fed. Cir. Mar. 8, 2016). The duty to assist is not unlimited, and subsection (d) to § 3.159 provides an important limitation: "VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim." Id. VA has met the duty to assist the Veteran in the development of the claims being decided herein. His service treatment records have been obtained and appear to be complete. Also, all sufficiently identified VA treatment records during the appeal period are of record. Those private records the Veteran has authorized VA to obtain have also been obtained. He did not identify and authorize VA to obtain any other relevant information. Furthermore, VA examinations have been conducted, and they are adequate to inform the Board's judgment on those complex medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014). There is no indication that his symptoms have materially increased in severity since the last VA examinations were conducted for the each disability. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the evidentiary record appears to be complete. C. Bryant As noted in the Introduction section, the Veteran testified at a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ and the Veteran's attorney asked specific questions eliciting testimony regarding the elements for establishing service connection. See Board Hr'g Tr. 5, 14, 18. The VLJ specifically sought to identify any pertinent evidence not currently associated with the claims. Board Hr'g Tr. 24-27. Accordingly, the Veteran is not shown to be prejudiced on the basis of any Bryant deficiency. D. Stegall Compliance The Board also finds that there was substantial compliance with the June 2013 Board remand directives. Specifically, the Veteran was sent a letter in September 2014 asking that he identify any health care providers having additional treatment records pertinent to his appeal. He did not respond. Next, all of the Veteran's VA treatment records were obtained and associated with the claims file. Next, as directed, the Veteran underwent VA examinations in January 2015 to evaluate the severity of his disabilities. The VA examinations, as indicated, are adequate to evaluate the disabilities. Finally, the matter was readjudicated in a July 2015 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis A. Applicable Law Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Because the ability to overcome the handicap of disability varies widely among individuals, the disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. See 38 C.F.R. § 4.15. Where there is a question as to which of two disability ratings shall be applied, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where a claimant is awarded service connection and assigned an initial disability rating, separate ratings can be assigned for different periods of time since the effective date for the award of service connection ("known as staged ratings"). See Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). Staged ratings are appropriate in any case when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). After careful consideration of the evidence, any reasonable doubt remaining on any material question of law or fact is to be resolved in favor of the claimant. 38 C.F.R. § 4.3; Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). B. Tension Headaches The Veteran is seeking a higher initial rating for tension headaches. The appeal period now before the Board begins from January 19, 2005, which is when service connection was granted for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable rating from that date until December 15, 2010. Beginning from that date, the disability has been assigned a 30 percent rating. (1) Rating Schedule The disability ratings for the tension headache disability have been assigned under Diagnostic Code (DC) 8881-8100 of 38 C.F.R. § 4.124a. The hyphenated code beginning with 8881- signals that the rating has been assigned by analogy on the basis of undiagnosed illnesses occurring in Persian Gulf veterans under 38 C.F.R. § 3.317 (2015). See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015); M21-1.IV.ii.2.D.4.g. The applicable rating schedule is set forth as follows: 8100 Migraine: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 With characteristic prostrating attacks occurring on an average once a month over last several months 30 With characteristic prostrating attacks averaging one in 2 months over last several months 10 With less frequent attacks 0 Medical reports may not use the word "prostration." However, this is an adjudicative determination based on the extent to which the facts meet the definition of the term. See M21-1, III.iv.4.G.7.c. On this basis, "prostrating," as used in 38 CFR 4.124a, DC 8100, means "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, III.iv.4.G.7.a. Completely prostrating as used in 38 CFR 4.124a, DC 8100, means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. Prostration is substantially defined by how the disabled individual subjectively feels and functions when having tension headache symptoms. See M21-1, III.iv.4.G.7.c. Examples of prostrating symptoms include 1) experiencing severe headaches and vomiting when exposed to light; 2) not engaging in any activities when this occurs; and 3) must rest or sleep during these episodes. See M21-1, III.iv.4.G.7.d. "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in DC 8100 is "inadaptability" defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). (2) Discussion 0% from January 19, 2005, until December 15, 2010 The Veteran tension headache disability has been assigned an initial noncompensable (zero percent) disability rating prior to December 15, 2010. A higher rating must be denied as the evidence does not show headaches with characteristic prostrating attacks averaging one in 2 months over last several months. For instance, on VA Neurologic examination in August 2005, it was found that the Veteran had headaches that occurred daily and lasted two to three hours. They were relieved by resting, but he had missed no work because of the headaches and could drive when he had a headache. During an October 2005 VA mental health consultation, it was noted that he had "some" headaches upon waking and "some" nausea, but this was "tolerable" at that point. In November 2008, he complained of constant headaches, and he had had to leave work early that week, after which he took a nap with no relief; the assessment was questionable sinus headache. The Veteran then underwent a VA examination in January 2009. He reported headaches happening daily, which were usually mild to moderate, which he rated as 3 out of 10 in severity. The VA examiner noted that the Veteran did report photophobia and wore sunglasses when outside. Headaches were typically more often mild though they could be moderate on occasion and severe "rarely." The Veteran had a few episodes where the headache was severe enough to require leaving work, and he had a few episodes where he had to stop working for approximately 30 minutes while headache medicine took effect. He reported having increasing headaches "lately." Effects on daily living involved "typically" pain but no interference with actual activity. He then continued to present to his VA doctor, including in May 2009, January 2010, and March 2010, for medication management. This evidence demonstrates that the Veteran's headaches usually occurred daily at a mild or moderate level, but could "rarely" become severe. He was regularly able to continue his normal activities without interruption. Because he was able to continue his ordinary activities, this evidence is inconsistent with characteristic prostrating headaches involving extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See 38 C.F.R. § 4.124a, DC 8100; M21-1, III.iv.4.G.7.b-c. He had "rare" severe headaches and a "few" reported instances where he had to leave work early or stop working for a short time. These instances, if considered to be characteristic prostrating attacks, are not shown to have occurred at least once a month over any 2-month period. Accordingly, the next higher disability level, 10 percent, is not more nearly approximated during the staged rating period from January 19, 2005, until December 15, 2010. See 38 C.F.R. § 4.124a, DC 8100. 30% from December 15, 2010 The Veteran's disability has been assigned a 30 percent disability rating since December 15, 2010. A higher rating beginning from December 15, 2010, must be denied as the evidence does not show headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran underwent a VA examination in December 2010. At that time, he again complained of constant, weekly headaches. The usual duration of a headache was longer than 2 days. The VA examiner found that "less than half" of the attacks were prostrating. It was also noted that he had increased tardiness at work. A January 2011 VA medical record reflects that the Veteran was commuting by plane weekly to a different city. During his November 2012 Board hearing, the Veteran testified that his headaches were daily "at times," where he had had to leave work. Board Hr'g Tr. 5. He had been moved off "the floor" at work and given an office job, where he could "kind of cope" with his headaches "a little bit," by "kind of get[ting] away from things for a minute" while getting his composure back. Board Hr'g Tr. 5. Otherwise, he had headaches at least three to four times a week, which lasted about an hour, but still lingered thereafter. Board Hr'g Tr. 9. He approximated that it was "[m]aybe once or twice a month" where he had to leave earlier than normal from work, but he would work up to 10 hours to complete his work before he finished. Board Hr'g Tr. 12-13. His headaches could rise to anywhere from a seven to an eight level in severity. Board Hr'g Tr. 7. The Veteran then underwent a second VA examination in January 2015. He stated that he had 3-4 severe headaches a week. He stated that when a headache was severe he would lie down and rest. He was prescribed medication, but he did not take it because it did not help. The VA examiner found that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. This impacted him at work as he would close his door and shut his eyes for about 10-15 minutes and take Aleve. The Board finds that this evidence does not present a disability picture involving very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100; M21-1, III.iv.4.G.7.c. His headaches were very frequent, occurring nearly every day, and were prolonged in that they lasted from 1 hour up to 2 days. However, the January 2015 VA examiner concluded that his headaches were characteristic prostrating attacks only once a month, which is consistent with a lower disability level and, therefore, cannot be considered "very frequent." See 38 C.F.R. § 4.124a, DC 8100. Moreover, the Veteran's ability to adapt to the headaches at work by closing his door and resting, while still completing his work, indicates that these headaches did not cause severe economic inadaptability. See id. Accordingly, the next higher disability level, 50 percent, is not more nearly approximated during the staged rating period beginning from December 15, 2010. See 38 C.F.R. § 4.124a, DC 8100. Throughout all staged rating periods, the Board has considered the Veteran's own statements regarding the severity of his tension headaches. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Moreover, the Veteran's tension headache condition manifests with symptoms readily observable by a lay person, such as pain. Accordingly, the lay evidence is competent evidence to this extent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Fountain, 27 Vet. App. at 274-75. Accordingly, his testimony is useful in understanding those symptoms and he is competent to identify and the effect of the disability on his daily life. However, the rating schedule for evaluating tensions requires adjudicative determinations regarding, for instance, whether the Veteran's headaches involved prostrating attacks. To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a higher rating at any time during either staged rating period. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, even after resolving all reasonable doubt in the Veteran's favor, higher ratings are not assignable for his tension headache disability. C. Irritable Bowel Syndrome The Veteran is seeking higher initial ratings for his irritable bowel syndrome (IBS). The appeal period now before the Board begins January 19, 2005, which is when service connection was granted for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned staged disability ratings throughout the appeal period. (1) Rating Schedule The Veteran's IBS disability has been assigned disability ratings under Diagnostic Code (DC) 8873-7319 of 38 C.F.R. § 4.114. The hyphenated code beginning with 8873- signals that the rating has been assigned by analogy on the basis of undiagnosed illnesses occurring in Persian Gulf veterans under 38 C.F.R. § 3.317 (2015). See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015); M21-1.IV.ii.2.D.4.g. The applicable rating schedule is set forth as follows: 7319 Irritable colon syndrome (spastic colitis, mucous colitis, etc.): Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress 30 Moderate; frequent episodes of bowel disturbance with abdominal distress 10 Mild; disturbances of bowel function with occasional episodes of abdominal distress 0 When deciding these claims for increased disability ratings, the Board must particularly consider the credibility of a claimant's statements reporting symptoms of a "personal affliction," such as a veteran's statements that he or she had constipation. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). (2) Discussion In this case, the Board has carefully considered all assembled evidence and potentially applicable diagnostic codes, and finds that the Veteran's IBS disability picture has more nearly approximated the rating criteria for a 30 disability rating, but not higher, throughout the entire appeal period. Specifically, the Veteran's primary care provider at VA documented in January 2007 that the Veteran was "still" having "bouts of alternating diarrhea and constipation." Consistent with this assessment, he underwent a VA Gastrointestinal consultation in October 2008. It resulted in an assessment of IBS involving diarrhea (3 days) alternating with constipation (4 days) since 1995. A January 2009 VA examination also found IBS with alternating symptoms of constipation and diarrhea. Most recently, on VA examination in January 2015, he had complaints of daily episodes of diarrhea (states he has 3-4 loose bowel movements a day) with constipation "occurring rarely." This evidence tends to show alternating diarrhea and constipation. Although the January 2015 VA examination noted that the constipation occurred "rarely," the frequency of the intervals is not specified in DC 7319. Instead, the abdominal distress must be "more or less constant." With further regard to whether the Veteran's abdominal distress was "more or less constant," the medical records, beginning from an August 2004 VA mental health consultation, show reports of daily loose bowels. A December 2010 VA examination found episodic diarrhea occurring more than 12 times in one year. This same examination noted symptoms, consistent with the intervening evidence, involving intestinal pain of moderate severity occurring monthly, and fecal incontinence. Similarly, the Veteran testified at his December 2012 Board hearing that he was given an office job close to the restroom due to his symptoms. Board Hr'g Tr. 14. He had to take a change of clothes wherever he went because of accidents, which occurred 2-3 times per week. Board Hr'g Tr. 14-15. He had had to leave work, and had been late for work at times, but he never missed work due to this. Board Hr'g Tr. 18. He described his condition as moderate to severe. Board Hr'g Tr. 14. Most recently, the January 2015 VA examination recorded symptoms of frequent episodes of bowel disturbance with abdominal distress involving daily episodes of diarrhea, bloating, cramping and gas relieved with bowel movements that occurred 7 or more times in the past 12 months. It likewise noted the Veteran's report of always needing to have a restroom close by, including at work, where his office was close to a restroom. This evidence is consistent with a disability picture involving severe IBS symptoms with alternating diarrhea and constipation with more or less constant abdominal distress. See 38 C.F.R. § 4.114, DC 7319. Accordingly, the maximum schedular rating, 30 percent, is warranted for the Veteran's IBS disability throughout the initial rating period. D. Fibromyalgia The Veteran is seeking higher initial ratings for fibromyalgia. The appeal period now before the Board begins January 19, 2005, which is when service connection was granted for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned staged disability ratings throughout the appeal period. (1) Rating Schedule The Veteran's disability has been assigned a disability rating under Diagnostic Code (DC) 8850-5025 of 38 C.F.R. § 4.71a. The hyphenated code beginning with 8850- signals that the rating has been assigned on the basis of undiagnosed illness occurring in Persian Gulf veterans under 38 C.F.R. § 3.317 (2015). See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015); M21-1.IV.ii.2.D.4.g. The applicable rating schedule is set forth as follows: 5025 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: That are constant, or nearly so, and refractory to therapy 40 That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time 20 That require continuous medication for control 10 NOTE: 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. "Refractory" means resistant to treatment or cure; unresponsive to stimulus; or not responding to an infectious agent. Merriam-Webster Medical Dictionary available at http://c.merriam-webster.com/medlineplus/refractory (2016). (2) Discussion From January 19, 2005, to December 15, 2010 The Veteran's disability has been assigned a noncompensable rating from January 19, 2005, until January 13, 2009. He has then been assigned a 10 percent rating from January 13, 2009, until December 15, 2010. After careful consideration, the Board finds that an initial 10 percent rating is warranted prior to January 13, 2009, but a rating higher than 10 percent is not warranted prior to December 15, 2010. Particularly, the evidence shows fibromyalgia symptoms that required continuous medication for control throughout this initial staged rating period. The relevant evidence begins several months prior to when the initial rating was assigned. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (a veteran's disability must be evaluated in light of its whole recorded history). Specifically, the Veteran sought treatment at VA in August 2004 for complaints of migratory joint pains. He was given medication for those symptoms. This medication was changed on follow up in December 2004, and it was noted in February 2005 that his joint pains were "better" on the medication. Likewise, an August 2005 VA examination notes prescription medications from the VA which the Veteran said were "helpful." A witness then wrote in March 2006 that she had personally witnessed the Veteran on countless occasions buy joint and pain medication, and it was noted during VA treatment in August 2008 that he took over-the-count medication for joint and muscle pain. This evidence shows that the Veteran's fibromyalgia symptoms required continuous medication for control. See 38 C.F.R. § 4.71a, DC 5025. Accordingly, an initial 10 percent rating is warranted. A rating higher than 10 percent is not for assignment as the evidence does not show fibromyalgia symptoms that were episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that were present more than one-third of the time. The Veteran underwent a VA examination in January 2009. It was noted that he had intermittent joint pain involving migratory multiple joint arthralgia with significant effects on his daily activities. They were constant and were precipitated by increased activity and sometimes without triggers. The symptoms "thus far" had been refractory to therapy. This January 2009 VA examination appears to show symptoms at a higher disability level. However, it goes on to identify the specific joints involved to include the shoulder, arms, legs, hips and back. The subsequent evidence confirms that the Veteran's pain arises from distinct medical conditions in the back and hip, which are not service-connected disabilities. For instance, he underwent treatment for back spasms at VA in May 2009 and low back pain in June 2009. He went to a VA emergency room in June 2009 for an acute flare of back pain, which was noted to be related to degenerative joint disease and bulges without impingement or central spinal canal stenosis, as shown on a March 2007 VA examination. Records throughout May and June 2009 continued to show complaints of back pain. Similar complaints, which were attributed to chronic low back pain, are shown in October 2009 and March 2010. This evidence is representative of his presentation until July 2010, when he sought treatment at VA for complaints of back muscle spasms and knee arthralgia. Because the Veteran's low back pain is a distinct and separate medical condition, apart from fibromyalgia, and because this medical evidence specifically attributes the symptoms to that condition, this evidence is not relevant to the severity of the fibromyalgia and cannot provide a basis for assigning a higher disability rating. See Mittleider, 11 Vet. App. at 182. In this context, the January 2009 VA examination is essentially nonprobative on this question. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the medical records are silent for treatment of fibromyalgia, an absence of documented complaints in a medical record cannot always constitute substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). It must be considered whether there is evidence as to the severity of symptoms that would have made it "reasonable to expect" that at that time he would have reported symptoms during treatment. See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7) Here, the Veteran's medical records appear to have been kept in such a way that the fibromyalgia complaints would have been recorded if he had complained of them. It also appears from these medical records that he was reporting all extant complaints in his joints of any particular severity. Thus, it is most reasonable to conclude that if symptoms of fibromyalgia were present, he would have reported them. Because no such complaints are included, it must be found that those symptoms, if present, were not of such sufficient severity to report. Therefore, after considering these medical records, where they show specific treatment for complaints in the back, but not fibromyalgia, it cannot be concluded that the disability level involved fibromyalgia symptoms that were present more than one-third of the time. See 38 C.F.R. § 4.71a, DC 5025. Without such evidence, a disability level higher than 10 percent is not more nearly approximated prior to December 15, 2010. See 38 C.F.R. § 4.71a, DC 5025. From December 15, 2010, to January 17, 2015 The Veteran's fibromyalgia has been rated at 20 percent from December 15, 2010, until January 17, 2015. A higher rating must be denied as the evidence does not show a disability picture more nearly approximating fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. During a December 2010 VA examination, it was noted that the Veteran had weekly flare-ups of symptoms, but had "fair" treatment with muscle relaxer. Likewise, during a December 2010 VA consultation, the Veteran reported that naproxen had been working well for his aches and pains. Then, the Veteran himself testified at the November 2012 Board hearing that his pain persisted despite his medication, but he would be "done" and "probably bedridden" without his medication. Board Hr'g Tr. 20, 23. This evidence demonstrates that the condition was responsive to medication and, consequently, was not refractory to therapy. Without this, the next higher disability level is not more nearly approximated. 38 C.F.R. § 4.71a, DC 5025. Throughout the remainder of this staged rating period, the medical records continue to show ongoing complaints involving his back, plus his hip. As with the prior staged rating period, a higher rating cannot be granted during this staged rating period based on this evidence. Most notably, the Veteran appears to have had several flare-ups of low back pain. He sought treatment at VA in May 2011 and September 2011 for complaints of back pain. A work note was given in September 2011 "for the rest of the week." On follow up later in September 2011, his VA doctor gave him an additional work note involving "no work x7 days." He missed work throughout September 2011 until December 2011 and again in May 2012. VA medical records, such as in September 2011 and May 2012, specifically attribute this to exacerbations of low back pain. The Veteran himself at the Board hearing also attributed "the culprit" to be his low back. Board Hr'g Tr. 19. A March 2014 VA Neurosurgery consultation shows a diagnosis of lumbar degenerative disc disease on MRI, right formainal narrowing L4-5, and lumbar radiculopathy. Therefore, the symptoms of that condition cannot be considered in assignment of a disability rating for fibromyalgia. See Mittleider, 11 Vet. App. at 182 Correspondingly, as with the prior staged rating period, the Veteran's medical records appear to have been kept in such a way that the fibromyalgia complaints would have been recorded if he had complained of them. It also appears from these medical records that he was reporting all extant complaints in his joints of any particular severity. Thus, it is most reasonable to conclude that if symptoms of fibromyalgia were present, he would have reported them. Because no such complaints are recorded, it must be found that those symptoms, if present, were not of such sufficient severity to report. Therefore, after considering these medical records, where they show specific treatment for complaints in the back and hip, but not fibromyalgia, it cannot be concluded that the disability level involved fibromyalgia symptoms that were constant, or nearly so, and refractory to therapy. See 38 C.F.R. § 4.71a, DC 5025. Without such evidence, a disability level higher than 20 percent is not more nearly approximated from December 15, 2010, to January 17, 2015. 38 C.F.R. § 4.71a, DC 5025. From January 17, 2015 Beginning from January 17, 2015, the Veteran's fibromyalgia disability has been assigned a 40 percent schedular disability rating. This is the maximum disability rating assignable for fibromyalgia. Therefore, there is no basis to consider whether a higher schedular disability rating may be assigned. See 38 C.F.R. § 4.71a, DC 5025. Relevant to all three staged rating periods discussed above, the Board notes that the rating criteria for fibromyalgia specifically contemplate the relief provided by medication. The Board has, therefore, considered such effects. See Jones, 26 Vet. App. at 63. Likewise, it is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Moreover, the Veteran's fibromyalgia condition manifests with some symptoms readily observable by a lay person, such as widespread pain in both the left and right sides of the body. Accordingly, the lay evidence is competent evidence to this extent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Fountain, 27 Vet. App. at 274-75. However, the rating schedule for evaluating fibromyalgia also requires precise medical findings, including findings as to whether the pain is attributable to fibromyalgia or separate pathology in distinct joints. It does not appear that the Veteran has a background in medicine, or a related field, such that he can be recognized as having the medical expertise needed to such medical findings. Accordingly, his testimony is useful in understanding those symptoms he is competent to identify and the effect of the disability on his daily life, but does not otherwise provide a basis for assigning a higher rating. Also relevant to all three disability periods, the rating criteria for evaluating fibromyalgia under 38 CFR 4.71a, DC 5025 do not exclude assignment of separate evaluations when disabilities are diagnosed secondary to fibromyalgia. See, e.g., M21-1 III.iv.4.A.12.c., Evaluating Fibromyalgia. Here, where extant, the RO has previously granted service connection for separate disabilities related to his fibromyalgia (or, otherwise, his service in the Gulf War). These include PTSD, IBS, and tension headaches. Service connection for chronic fatigue syndrome was also considered and denied in June 2012, on the basis that the evidence did not show a current disability. He did not appeal that determination. To the extent the medical evidence shows complaints of fatigue, such as in a June 2009 VA examination, the Board has taken that evidence into consideration, where relevant. Finally, because fibromyalgia is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other diagnostic codes are potentially applicable which might afford a higher rating on an alternative basis. In conclusion, when reconciling the various medical reports into a consistent picture, it must be found that the Veteran's fibromyalgia disability picture is most consistent with an initial 10 percent disability level until December 15, 2010. Aside from these staged ratings, no higher or earlier increased disability ratings are warranted. See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27. This is an appeal of the initial ratings assigned, which means that a higher rating may not be assigned any earlier than January 19, 2005, which is the effective date for the award of service connection in this case. See, e.g., Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). The Board has resolved all reasonable doubt in the Veteran's favor in reaching all determinations. E. Extraschedular Consideration The Board's findings above are based on the rating schedule. Generally, it must be remembered that the degrees of disability specified in the rating schedule 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. 38 C.F.R. § 4.1. In this regard, the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. The disability evaluations are based upon this functional impairment-the lack of usefulness, of these parts or systems, especially in self-support. See id. Moreover, the rating schedule is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). (1) Criteria The extraschedular determination must follow a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, the level of severity and symptomatology of a Veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a Veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. Limiting referrals for extraschedular evaluation to considering a Veteran's disabilities individually ignores the compounding negative effects that each individual disability may have on the Veteran's other disabilities. Section § 3.321(b)(1) performs a gap-filling function, accounting for situations in which a Veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a Veteran's disabilities are nonetheless inadequately represented. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Therefore, referral for extraschedular consider may also be made to consider the compound/combined impact of multiple service-connected disabilities in determining whether referral for extraschedular consideration is needed. See id. (2) Discussion In this case, referral for extraschedular consideration is not warranted. The Veteran's service-connected headache, IBS, or fibromyalgia disabilities are manifested by signs and symptoms such as headaches, diarrhea and constipation, pain and weakness, which impair his day-to-day functional capacity. These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities involving tension headaches, IBS, and fibromyalgia provide disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms. For example, tension headaches are rated based on the frequency of "prostrating attacks;" IBS on the basis of "bowel function," "bowel disturbance," and "abdominal distress;" and fibromyalgia on the basis of the frequency of that condition's inclusive symptomatology. In fact, specific to fibromyalgia, the three levels of evaluation--10, 20, and 40 percent--were established to be consistent, in VA's judgment, with the clinical range of impairment of that condition. See 61 Fed. Reg. 20438-03. Therefore, the rating schedule for these disabilities was purposely designed to compensate for all symptoms of the disabilities, and the complete and comprehensive signs and symptoms of the Veteran's tension headache, IBS, and fibromyalgia are contemplated by the rating schedule. Moreover, the rating schedule more generally was purposely designed to compensate for such functional effects of his disabilities in all spheres of his daily life, including at work and at home. See 38 C.F.R. § 4.10. Accordingly, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture for tension headaches, IBS, and fibromyalgia. In short, there is nothing exceptional or unusual about the Veteran's disabilities because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Finally, the Board notes that the Veteran is service-connected for multiple disabilities. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there appear to be no additional symptoms or effects that have not been attributed to a specific service-connected disability insofar as they impact the disability picture of the disabilities on appeal. 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. Johnson, 762 F.3d 1362; Yancy v. McDonald, No. 14-3390, 2016 WL 747304, at *9 (Vet. App. Feb. 26, 2016). For these reasons, referral for consideration of an extraschedular rating for this disability is not warranted. ORDER An initial compensable rating prior to December 15, 2010, and a rating higher than 30 percent beginning December 15, 2010, for tension headaches, is denied. An initial 30 percent disability for irritable bowel syndrome is granted. An initial 10 percent rating prior to January 13, 2009, is granted for fibromyalgia. A disability rating in excess of 10 percent prior to January 13, 2009, a rating higher than 20 percent beginning December 15, 2010, and a rating in excess of 40 percent beginning January 17, 2015, for fibromyalgia, is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs