Citation Nr: 1629240 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 06-31 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than dysthymia with posttraumatic stress disorder (PTSD), claimed as chronic adjustment disorder, anxiety condition and depression. 2. Entitlement to a rating in excess of 70 percent for dysthymia with PTSD. 3. Entitlement to an initial rating in excess of 40 percent for fibromyalgia claimed as an undiagnosed illness to include myalgia and joint pains. 4. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS) with cholelithiasis, status post removal of gall bladder and duodenal ulcer prior to March 24, 2015 and in excess of 30 percent from that date. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Larry Schuh, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military service from May 1985 to August 1993 with 6 months and 11 days of prior active service. These matters come to the Board of Veterans' Appeals (Board) from December 2006 (notice sent January 2007) and March 2012 (notice sent August 2012) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The December 2006 rating decision denied an increase rating in excess of 10 percent for dysthymia with PTSD, and denied service connection for chronic adjustment disorder, anxiety condition, and depression, irritable bowel syndrome, and joint pain, muscle pain, and fatigue. In September 2008 the Board remanded the matters for further development. The Board notes that the Veteran is service-connected for a psychiatric disorder diagnosed as dysthymia with PTSD. The RO has also addressed the Veteran's psychiatric disorder claim as one for chronic adjustment disorder, anxiety condition, and depression. In light of the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record), the Board has recharacterized the service connection psychiatric issue on appeal as service connection for an acquired psychiatric disorder other than dysthymia with PTSD, claimed as chronic adjustment disorder, anxiety condition and depression. Id. In the March 2012 rating decision the RO increased the rating for dysthymia with PTSD to 70 percent effective from October 11, 2005, the date of the increased rating claim. As less than the maximum benefit available was awarded the claim remains in controversy. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, in that rating decision, service connection was granted for undiagnosed illness to include myalgia and joint pains and IBS with an award of 10 percent each effective October 11, 2005 (the initial date of the claims). So the Veteran's entitlement to those service connection claims is no longer in dispute. However, he separately appealed the ratings assigned (in a notice of disagreement received in April 2013) for undiagnosed illness to include myalgia and joint pains and IBS. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In an interim May 2014 rating decision the RO increased the rating for fibromyalgia claimed as an undiagnosed illness to include myalgia and joint pains to 40 percent effective from the initial date of the claim (October 11, 2005). In a May 2015 rating decision the RO assigned a 30 percent rating for the Veteran's service-connected IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer effective March 24, 2015 (the date of VA examination findings that support the increased rating). In the May 2015 rating decision the RO determined that clear and unmistakable error had been identified in the March 27, 2012 rating decision that assigned a 10 percent rating for IBS. At the time of the March 2012 rating decision the Veteran was already service connected for other digestive conditions, namely, cholelithiasis with removal of the gall bladder and duodenal ulcer. According to the RO, assigning a separate rating for IBS was in contradiction to VA policy concerning the rating schedule for the digestive system. As such, those digestive disabilities should have been combined under one diagnostic code at the time of the March 2012 rating decision. Thus, the effective date of the corrected rating corresponds to the date from which benefits would have been payable if it had been made on the date of the reversed decision. See 38 C.F.R. § 3.400(k). The issues of entitlement to service connection for chronic fatigue syndrome, entitlement to earlier effective dates for a 70 percent rating for dysthymia with PTSD and a 40 percent rating for fibromyalgia claimed as undiagnosed illness to include myalgia and joint pains have been raised by the record in a July 2015 statement by the Veteran, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The issues of entitlement to service connection for an acquired psychiatric disorder other than dysthymia with PTSD, claimed as chronic adjustment disorder, anxiety condition and depression, and a TDIU are REMANDED to the AOJ. FINDINGS OF FACT 1. Throughout, the Veteran's dysthymia with PTSD has been manifested by symptoms no greater than productive of occupational and social impairment with deficiencies in most areas; symptoms of dysthymia with PTSD productive of total occupational and social impairment are not shown. 2. The Veteran is in receipt of the maximum allowable schedular disability rating for fibromyalgia claimed as an undiagnosed illness to include myalgia and joint pains. 3. From October 11, 2005, IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer was characterized by near constant episodes of diarrhea or constipation, resulting in abdominal distress; for the entire period on appeal, IBS has not resulted in moderately severe, with less than severe symptomatology, impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least 4 or more times per year. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for dysthymia with PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.7, 4.25, 4.130, Diagnostic Code (Code) 9411 (2015). 2. The criteria for an initial rating in excess of 40 percent for fibromyalgia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.7, 4.71a, Code 5025 (2015). 3. The criteria for a 30 percent, but not greater, rating from October 11, 2005, for IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.114, Code 7319 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence dated in October 2005 and July 2006 VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. In a claim for increase, the VCAA notice required is generic notice that is notice of the type of evidence that is needed to substantiate the claim (evidence of increase in severity of the disability and the effect it has on employment) as well as general notice how disability ratings and effective dates are assigned. See Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Pertaining to fibromyalgia, and IBS, the Veteran's appeals arise from his disagreement with the initial ratings or effective dates that were assigned following the grants of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's VA and private treatment records. There is no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran has been afforded VA examinations to assess the nature and severity of his claimed disabilities. The Board concludes that the VA examinations are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also concludes that the September 2008 remand orders with respect to the claims being decided herein were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart, 21 Vet. App. 505. The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Dysthymia with PTSD Service connection is in effect for dysthymia with PTSD rated 70 percent disabling, throughout the duration of the appeal, under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9411. The Veteran contends that a rating in excess of 70 percent is warranted for his dysthymia with PTSD. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. §4.126 . A rating of 70 percent is assignable for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is assignable for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating mental health disorders, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994) (DSM-IV). VA implemented DSM-V, effective August 4, 2014. The Secretary, VA, has determined, however, that DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45 ,093, 45,094 (Aug. 4, 2014). Since the Veteran's appeal was certified to the Board prior to August 4, 2014, DSM-IV is still the governing directive for his appeal. The scores assigned under the GAF scale are an important consideration under DSM-IV. See e.g., Richard 9 Vet. App. at 267 (1996). They reflect the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. GAF scores between 51 to 60 indicate moderate symptoms or moderate difficulty in social, occupational, or school functioning. Also, the Board notes that the joining of schedular criteria in the rating schedule by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. Tatum v. Shinseki, 23 Vet. App. 152 (2009). At issue in this case is whether the Veteran's dysthymia with PTSD symptomatology results in total occupational and social impairment as is required for the assignment of a disability rating in excess of 70 percent for dysthymia with PTSD. In January 2006 the Veteran underwent VA Gulf War Guidelines examination. He reported he had psychiatric symptoms of anxiety, depression, and sleep impairment (he reported that he had been on sleep medication in the past). He did not have interpersonal relationship difficulties, loss of control or violence potential. He reported he had no previous psychiatric problems or hospitalization, disturbances of vegetative function, confusion, or panic attacks. On psychiatric evaluation, he had normal affect, mood, judgment and comprehension of commands. He did not exhibit obsessive behavior. He did, however, make an inappropriate statement during the evaluation toward the examiner. He did not have hallucinations or delusions. He had average intelligence. There was no diagnosis of a psychiatric disorder rendered. On January 2009 VA examination, the Veteran reported that he had been treated for PTSD from 1993 to 2003. He had never been hospitalized for his psychiatric problems. At the time of the psychiatric examination, he was not on any psychiatric medication. He stated that it was better not to take psychiatric medications while incarcerated because he would be housed differently. He did not report any chronic problems with PTSD, anxiety, or depression. He did have problems sleeping; he would only get about 4 hours per night. He had frequent nightmares, short-term memory loss, and unpleasant intrusive thoughts regarding the Persian Gulf War. The Veteran was incarcerated at the time of the examination. He had been incarcerated since 2003. He was serving a 25-year sentence. He had a bachelor's degree in electrical engineering and had sought further education. He had 12 hours towards a master's degree in educational counseling. He worked as an engineer from 1994 until his incarceration in 2003. He stated that he was able to compartmentalize fairly well with respect to the PTSD; he was able to perform his job. In 2006, he was divorced from his wife of 22 years in. He has 4 adult children, with whom he remains in contact; and he has 2 grandchildren. From a social perspective, he is relatively isolated. He had one close friend. He had minimal leisure pursuits. He would spend time studying, reading, talking with his friend and watching television. He denied any substance abuse problems. He had some anger problems (he was in prison on a conviction of an assault). He had 2 suicide attempts in 1998 and 2001. He had depression related to PTSD. The examiner noted that the Veteran was able to take care of his routine responsibilities of self-care. He had very limited social and interpersonal relations and very limited recreational and leisure pursuits. On mental status examination, the Veteran was neat and clean in appearance. He did not appear to have any impairment in thought process or communication. There was no evidence of delusions or hallucinations. Eye contact was intermittent during the session. He denied suicidal or homicidal ideations, plan, or intent. His affect was blunted and his mood was depressed and anxious. He was able to maintain his "mental personal hygiene" and basic activities of daily living. He was alert and oriented times 3. He had subjective memory loss that was not further tested during the session. When asked about obsessive or ritualistic behavior, he indicated that he was a "person of routine" indicating that a fixed order of things made him feel more comfortable. He had weekly panic attacks. He had a history of anger issues. He stated he tried his best to stay out of trouble and not get into arguments. He vents to the friend he has in prison. He has sleep disturbance with nightmares about once a week. He avoids any stimuli that would remind him of the military. He stated he feels "hypervigilant" all the time. He was "quite on-guard," watchful, and easily startled. He feels detached from people. He is in his cubicle most of the time during the day. The examiner expressed that the Veteran had major depression of moderate severity per his score on the patient health questionnaire depression scale. He had little interest in doing usual things most days. He was down, depressed, and hopeless much of the time. He had trouble falling asleep and staying asleep most days. He felt tired, lacked energy, felt bad about himself, had trouble concentrating on things nearly every day and felt fidgety and restless. The diagnoses under Axis I were chronic PTSD of moderate severity and major depression, chronic, moderate severity, secondary to PTSD. His GAF score was 52. The examiner noted that the Veteran had PTSD signs and symptoms along with major depression that result in deficiencies in most major areas of life including work (moderately disabling) due to lack of interest, lack of motivation and decreased concentration, intrusive thoughts, depressogenic thoughts about himself and his situation and mood (anxious and depressed). The April 2013 VA PTSD examination report noted that the Veteran was still incarcerated in the prison system and was accompanied by law enforcement officials during the examination. He denied any changes in his marital status since his last VA compensation examination in 2009. He denied any change in his social interactions, stating that he had only one friend in whom he could confide. He had been incarcerated since his last VA compensation examination and had no change in his occupational and educational status. He denied any new mental health diagnoses or changes in treatment. He denied seeing a counselor. He stated he was not interested in seeking mental health treatment at the prison because he would have to move elsewhere. The examiner noted the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, and chronic sleep impairment. The diagnosis under Axis I was PTSD with depression. The Veteran did not have more than one mental disorder diagnosed. His level of occupational and social impairment with regard to the diagnosis was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran was incarcerated and would not be up for parole for another 22 months. His current living conditions likely contribute to his continued experience of PTSD symptoms. Based on a review of the entire record, the Board finds that at no time during the appeal period was the Veteran's dysthymia with PTSD shown to be manifested by symptoms and impairment that more nearly approximate the criteria for the next higher, 100 percent, rating. While his dysthymia with PTSD symptoms have at times caused impairment in several areas, such as work, family relations, short-term memory loss, and mood, his dysthymia with PTSD has not been characterized by symptoms productive of total occupational and social impairment. Throughout, he had been described as oriented with no impairment in thought process or communication. There have been no delusions, hallucinations, or suicidal or homicidal ideations, plan or intent. There has been no evidence of paranoia or psychosis. His dysthymia with PTSD symptoms present predominantly as intrusive thoughts, isolation, sleep disturbance, disturbances of motivation and mood, and mild memory loss (memory loss for names of close relatives, own occupation, or own name has not been reported). He maintains a relationship with his children and the one friend with whom he confides. The 2009 VA examiner indicated that the Veteran's psychiatric symptoms were productive of functional impairment no greater than occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and/or mood. The 2013 VA examiner, however, found the Veteran's psychiatric symptoms were productive of functional impairment to a lesser degree, i.e., an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. These factors all weigh against a finding that dysthymia with PTSD has resulted in total occupational and social impairment at any time under consideration. Furthermore, the GAF score of 52 assigned for the Veteran's PTSD do not suggest that it results in total occupational and social impairment. Thus the GAF scores do not provide a basis for the assignment of a total rating. The Board has also considered whether referral for extraschedular consideration is indicated. There is no objective evidence or allegation, suggesting that the disability picture presented by the Veteran's service-connected dysthymia with PTSD is exceptional or that schedular criteria are inadequate (the symptoms and impairment reported and shown are all encompassed by the schedular criteria for a 70 percent rating). See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Consequently, referral for extraschedular consideration is not warranted. Fibromyalgia The Veteran's service-connected fibromyalgia, claimed as undiagnosed illness to include myalgia and joint pains has been assigned a 40 percent disabling rating from the effective date of service connection on October 11, 2005, pursuant to Code 5025 for fibromyalgia (fibrositis, primary fibromyalgia syndrome). 38 C.F.R. § 4.71a. Under Code 5025 fibromyalgia is described with symptoms of 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. A maximum 40 percent rating is assigned for symptoms which are constant, or nearly constant, and refractory to therapy. A 40 percent rating is the maximum schedular rating available under Code 5025, and thus, a higher rating is not available under that code. 38 C.F.R. § 4.71a, Code 5025. The record shows the RO previously rated the fibromyalgia as undiagnosed illness to include myalgia and joint pains, albeit under Codes 8850-5025 (essentially the same diagnostic code). In a June 2015 statement contained in VA Form 21-0958 (Notice of Disagreement) the Veteran's attorney argues against inclusion/combining of myalgia and joint pains with the 40 percent rating for fibromyalgia. The Board finds that such is proper as fibromyalgia encompasses widespread pain, which 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. Furthermore, the Board finds that a separate or higher rating is not warranted under any other diagnostic code. The RO has already granted the Veteran separate, additional disability ratings for other distinct manifestations associated with fibromyalgia, including headaches and IBS, and he is also separately rated for a psychiatric disability that includes dysthymia. The Board may not assign separate ratings for the same manifestations of disability under multiple diagnoses, as such would compensate the Veteran twice for the same symptomatology and "would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Such would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). The Board has considered the assignment of staged ratings, but finds this is not warranted given that the maximum schedular evaluation is being assigned for the entire period on appeal. In the June 2015 statement the Veteran's attorney indicates that an extraschedular rating be considered for the service-connected fibromyalgia. In that regard, with respect to an extraschedular rating under 38 C.F.R. § 3.321(b)(1), in this instance, the applicable rating criteria adequately contemplates the manifestations of the Veteran's fibromyalgia - namely, widespread pain, headache, IBS, and dysthymia, and the evidence does not show anything unique or unusual about the Veteran's fibromyalgia disability that would render the schedular criteria inadequate. There are no additional symptoms of his fibromyalgia disability that are not addressed by the various provisions of the Rating Schedule or already contemplated by other service-connected disabilities. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun, 22 Vet. App. 111, aff'd, Thun, 572 F.3d 1366. IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer The Veteran filed a claim for IBS on October 11, 2005. As noted previously service connection was granted from October 11, 2005, and IBS rated with his cholelithiasis, status post removal of gall bladder and duodenal ulcer. The Veteran's service-connected IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer is rated 10 percent prior to March 24, 2015 and 30 percent from March 24, 2015 currently under Code 7319 for IBS (spastic colitis mucous colitis, etc). 38 C.F.R. § 4.114. The Veteran contends that higher ratings are warranted for the stated period. Under that Code 7319, moderate IBS, characterized by frequent episodes of bowel disturbance with abdominal distress is rated at 10 percent. Severe IBS with diarrhea or alternating diarrhea and constipation and more or less constant abdominal pain is rated at 30 percent, which is the highest evaluation under this code. Descriptive words such as "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Under Code 7305 for duodenal ulcer, a 10 percent rating is warranted if the disability is mild with recurring symptoms one or twice yearly. A 20 percent rating is warranted if the disability is moderate with recurring episodes of severe symptoms two to three times per year averaging 10 days in duration, or with continuous moderate manifestations. A duodenal ulcer is rated at 40 percent if moderately severe with less than severe symptomatology but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times per year. A 60 percent rating is warranted for severe with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, Code 7305. Under Code 7318, for gall bladder removal or cholecystectomy, a 10 percent evaluation is warranted for gall bladder removal with mild symptoms. A 30 percent rating, the highest disability rating available, is warranted when there are severe symptoms. 38 C.F.R. § 4.114, Code 7318. An August 2000 VA gastrointestinal clinic outpatient treatment report, shows the Veteran reported a history of IBS and diarrhea for the past 7 years. His last clinic appointment was in October 1997 at which time he had 2 to 3 bowel movements daily from semi-formed to watery. He did not have weight loss. The diarrhea was associated with severe cramps in the lower abdomen. The diagnosis was IBS. A March 2002 VA treatment notes the Veteran presented with a history of IBS for 9 to 10 years. He had no acute, new or specific complaints. He related that he had noticed an increased intensity of chronic nausea and epigastric pains since the last 6 to 9 months. There was no history of vomiting or hematochezia. He did have a history of passing traces amounts of dark blood in his stools off and on for many years. The diagnosis was IBS and GERD [gastroesophageal reflux disease]. A June 2005 treatment record of the Texas Department of Criminal Justice Institutional Division notes that the Veteran was treated for chronic diarrhea. The assessment was possible IBS. On January 2006 VA compensation examination (Gulf War Guidelines), the Veteran reported an onset of IBS in 1995. He reported that he had 2 colonoscopies, the last being in 1997. He was treated for IBS while in prison. He had diarrhea within 30 minutes after eating without the medication and had alternating constipation and diarrhea on a regular basis. H also stated that he had blood in his stool but could not be seen by a medical provider for several days after the episode and by then "it fixes itself." He stated that he was claiming IBS as an undiagnosed illness as he was in the Gulf War Theater of operations from September 1, 1990 to April 12, 1991. His last general medical examination was in 1994. He reported gastrointestinal symptoms of nausea, diarrhea, constipation, indigestion, heartburn, hemorrhoids, hernia and melena. He did not have symptoms of vomiting, abdominal mass, abdominal swelling, regurgitation, jaundice, hematemesis, pancreatitis, fecal incontinence, post-prandial symptoms after ulcer surgery, gallbladder attacks or abdominal pain. On physical examination of the abdomen, inspection and bowel sounds were normal. There was no tenderness, other abnormality of auscultation, palpable mass, ventral hernia, ascites, abdominal guarding or incapacitation; and he had a normal liver and spleen. The examiner compared a March 2002 upper gastrointestinal examination and a September 1996 upper gastrointestinal and small bowel study and reported a negative and unchanged upper GI. The Veteran stated that he had a colonoscopy with biopsies done in 1996 at a VA medical center. Those records were reviewed by the examiner and the examiner noted that no such report was available via remote data or in the Veteran's claims file. The diagnosis was IBS from documented medical history, intermittent diarrhea/constipation, abdominal pain and melena, no abnormal physical findings or abnormal laboratory test results, normal flex-sig and biopsies documented in 1996 medical record, and normal upper gastrointestinal series. On January 2009 VA intestines examination, the Veteran reported that he did not have a history of trauma to the intestines, intestinal neoplasm, vomiting, fistula or ulcerative colitis. He reported a history of nausea, constipation and diarrhea with a frequency of 1 to 4 times daily, with attacks more than 12 times a year and the duration of each episode would last 1 day or less. He also reported a history of severe intestinal pain in the right and left lower quadrants. He described the pain as colicky and crampy that occurred several times daily that lasts minutes. He also reported having bloating, flatulence, weakness, fatigue, alternating diarrhea and constipation. He did not report having episodes of abdominal colic, nausea or vomiting, and abdominal distension, consistent with partial bowel obstruction. On physical examination, the Veteran's overall general health was fair. There was no weight loss, malnutrition, anemia, fistula, or abdominal mass present. He had tenderness with liver palpation. The diagnosis was IBS. The examiner noted that the Veteran's usual occupation was that of an engineer. He had been unemployed for 5 to 10 years. He was incarcerated in 2003. The effect on usual daily activities was mild for exercising and recreation, and moderate for toileting. There was no effect on chores, shopping, sports, traveling, feeding, bathing, dressing and grooming. In a January 2009 addendum by the same examiner who conducted the January 2009 VA intestines examination, review of the Veteran's medical records was noted. It was noted that the Veteran received treatment in prison for his IBS. He had stomach cramping and diarrhea after eating, and episodes of blood in his stool. VA examiner opined that IBS was less likely as not related to the Veteran's active duty. The rationale for the opinion was that there was no treatment documentation for IBS while on active duty. The examiner further noted that the Veteran's bowel complaints were attributed to a clinical diagnosis. On March 2015 VA intestinal conditions examination, the Veteran reported that he was originally diagnosed with IBS in 1993. He has had symptoms since that time including diarrhea, constipation, abdominal distention, and abdominal pain/cramping. His diet affects his symptoms (spicy/greasy foods makes symptoms worse). He had his gallbladder removed in 1994, which made the symptoms worse. He takes medication for a duodenal ulcer. He has a history of internal hemorrhoids with removal of one hemorrhoid. He reported some history of blood in his stools that was worked-up in the mid 1990's. He stated he had about 4 to 5 diarrhea episodes a day and if he misses his medications, the cramping is worse and the diarrhea increases to 6 to 7 episodes a day. He takes "Fiber Lax" supplements to improve constipation spells and to help bulk up stools and improve the diarrhea. He had not had a recent gastrointestinal visit; he follows with his primary care physician at the prison. He noted that continuous medical was required for control of his intestinal disorder. His symptoms include diarrhea daily about 4 to 5 spells a day, alternating diarrhea and constipation (diarrhea daily bout 4 to 5 spells a day with constipation about 2 times a week), abdominal distension (has abdominal distension prior to having a bowel movement that improves after the stool passes), nausea (daily nausea that was worse in the evening time), and vomiting (occasional vomiting 1 to 2 times a week if the nausea worsens). He reported that he had frequent episodes (7 or more) of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal disorder. He has not experienced weight loss, malnutrition, tumors, or neoplasms. He does not have any surgical scars or other pertinent physical findings, complications, conditions, signs and/or symptoms. The diagnosis was IBS. The examiner noted that the Veteran's IBS does impact his ability to work due to frequent bathroom breaks during the day due to diarrhea. After considering the totality of the record, and in light of 38 C.F.R. §§ 4.3 and 4.7, a 30 percent rating is warranted for the period from the initiation of the claim on October 11, 2005, to March 24, 2015, based on severe symptomatology. On VA treatment in August 2000 the Veteran was diagnosed with IBS, he had frequent diarrhea associated with severe cramps in the lower abdomen. In March 2002 occasional blood in his stool was also reported. Records during his incarceration show treatment for chronic diarrhea. On January 2006 VA compensation examination the Veteran reported gastrointestinal symptoms of nausea, diarrhea, constipation, indigestion, heartburn hemorrhoids, hernia and melena. On VA intestines examination in January 2009, he reported having nausea, constipation and diarrhea with a frequency of as much as 4 times a day with attacks more than 12 times a year. He also experienced severe intestinal pain in the right and left lower quadrants. Based on the foregoing, and affording the Veteran the benefit of the doubt, an increased rating of 30 percent and no higher is warranted for IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer. Both the private and VA treatment records for the period in question reflect frequent complaints of diarrhea and/or constipation on a near-constant basis. This award results in a 30 percent rating for the entirety of the appeals period. The Board must now consider entitlement to a higher rating. As noted above, a 30 percent rating is the maximum schedular rating under Code 7319. Other diagnostic codes for potential consideration include Code 7305 (duodenal ulcer) Code 7323 (ulcerative colitis), Code 7328 (small resection of the intestine), Code 7332 (impairment of rectum and anus sphincter control); and Code 7333 (stricture of rectum and anus). However, there is no evidence that the Veteran has anemia, weight loss, recurrent incapacitating episodes, malnutrition, interference with absorption and nutrition, occasional involuntary bowel movements necessitating wearing of pads, or a reduction of lumen or moderate constant leakage. He essentially denied such symptoms on several occasions of record, including during VA examination in January 2009 and most recently on VA examination in March 2015. Therefore, a rating under a separate diagnostic code is not warranted. As he has not demonstrated a higher level of impairment at any time during the pendency of this appeal, a staged rating is also not warranted. Fenderson, 12 Vet. App. at 126. The Board has also considered whether an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is applicable in this instance, and find it is not because the applicable rating criteria adequately contemplates the manifestations of the Veteran's IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer, and the evidence does not show anything unique or unusual about the Veteran's IBS disability that would render the schedular criteria inadequate. There are no additional symptoms of his IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer disability that are not addressed by the various provisions of the Rating Schedule or already contemplated by other service-connected disabilities. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun, 22 Vet. App. 111, aff'd, Thun, 572 F.3d 1366. In conclusion, a 30 percent rating is warranted from October 11, 2005, for IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer, and a rating in excess of 30 percent is not warranted at any time during the pendency of the appeal. As a preponderance of the evidence is against the award of a rating in excess of 30 percent, the benefit of the doubt doctrine is not applicable. ORDER Entitlement to a rating in excess of 70 percent for dysthymia with PTSD is denied. Entitlement to an initial rating in excess of 40 percent for fibromyalgia claimed as an undiagnosed illness to include myalgia and joint pains is denied. Entitlement to a rating of 30 percent, but not greater, from October 11, 2005, for IBS with cholelithiasis, status post removal of gall bladder and duodenal ulcer is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The development actions requested in the Board's September 2008 remand with regard to the service connection claim for an acquired psychiatric disorder was not fully completed. In September 2008 the Board remanded the service connection claim of chronic adjustment disorder, anxiety condition, and depression because it was not clear whether these were symptoms of the Veteran's service-connected dysthymia with PTSD disability or a separate claim for a psychiatric disorder. In the September 2008 remand, the Board specifically asked the VA examiner to determine whether the Veteran had any mental disorders other than PTSD; if so the examiner was to consider any such symptoms during the scheduled psychiatric examination. If not, the examiner was to state whether any such disabilities (chronic adjustment disorder, anxiety condition, and depression) were at least as likely as not related to the Veteran's service. Pursuant thereto, VA psychiatric examinations were conducted in January 2009 and April 2013. During the January 2009 examination, the Veteran reported he had depression related to PTSD. The examiner noted that the Veteran met the criteria for major depression. The diagnosis was major depression secondary to PTSD. The examiner further noted that the Veteran was not suffering from any substance abuse disorders or other disorders that were independently responsible for his impairment in psychosocial adjustment and quality of life. He noted also that the Veteran had PTSD signs and symptoms along with major depression that do result in deficiencies in most major areas of life including work, depressogenic thoughts about himself and his situation and mood (anxious and depressed). The April 2013 examiner diagnosed PTSD with depression. The examination report noted that the Veteran did not have more than one mental disorder diagnosed. Symptoms noted were depressed mood, anxiety, suspiciousness, panic attacks and chronic sleep impairment. No other symptoms were attributable to PTSD. As neither report offered an opinion and rationale as to the relationship of the claimed acquired psychiatric disorders to the service-connected PTSD or whether such claimed psychiatric disorders are at least as likely as not related to the Veteran's service, the matter must be remanded for compliance with the September 2008 Board remand orders. A remand by the Board confers on claimants, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, in this instance, the additional development specified in the Board's prior remand with respect to the matter of entitlement to service connection for an acquired psychiatric disorder other than dysthymia with PTSD, claimed as chronic adjustment disorder, anxiety condition and depression must be conducted prior to adjudication. Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the issue of unemployability is raised in the Veteran's record. According to a January 2006 VA examination report the Veteran's was unemployed, having last worked as an engineer in 2001. A January 2009 VA examination report notes he worked as an engineer from 1994 until 2003. He has been incarcerated since 2003, serving a 25-year sentence. He has not worked outside of the prison setting since 2003. The examiner noted the Veteran has PTSD signs and symptoms along with major depression that results in deficiencies in most major areas of life, including work. While the claim for a TDIU is part of the Veteran's claim for increased ratings currently on appeal, the AOJ has not explicitly adjudicated the entitlement to TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice regarding the claim for a TDIU. Also request that he submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Provide the Veteran's record and a copy of this remand to the VA psychologist who performed the April 2013 VA psychiatric examination. If that psychologist is unavailable, the request should be forwarded to a similarly qualified mental health professional. If it is determined that an additional evaluation is required, such should be scheduled. The mental health professional should be asked to review the Veteran's record, to include the April 2013 VA examination report, to determine whether the claimed chronic adjustment disorder, anxiety condition and depression are symptoms associated with the service-connected dysthymia with PTSD or whether they are separate manifestations of an acquired psychiatric disorder other than dysthymia with PTSD. If an acquired psychiatric disorder other than dysthymia with PTSD to include adjustment disorder, anxiety condition and depression are separate manifestations, state whether such disabilities are at least as likely as not related to the Veteran's service. A report should be prepared and associated with the Veteran's record. 3. Then readjudicate the appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. Adjudicate the issue of entitlement to a TDIU. If any decision remains adverse to the Veteran, including if a TDIU is not fully granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs