Citation Nr: 21077245 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-18 766 DATE: December 29, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for fibromyalgia is granted for the entire appeal period. Entitlement to a disability rating in excess of 10 percent for cervical arthritis is denied. Prior to March 17, 2020, entitlement to a rating in excess of 20 percent for right upper cervical radiculopathy is denied. Prior to March 17, 2020, entitlement to a rating in excess of 20 percent for left upper cervical radiculopathy is denied. On and after March 17, 2020, entitlement to a rating in excess of 40 percent for right upper cervical radiculopathy is denied. On and after March 17, 2020, entitlement to a rating in excess of 30 percent for left upper cervical radiculopathy is denied. Entitlement to a disability rating of 10 percent, but no higher, for intestinal bowel syndrome (IBS) is granted. FINDINGS OF FACT 1. For the entire appeal period, and resolving all doubt in the Veteran's favor, the Veteran's fibromyalgia manifested by episodic widespread musculoskeletal pain with symptoms precipitated by overexertion. 2. For the entire initial rating period, the Veteran's cervical strain has been manifested by forward flexion of the cervical spine greater than 30 degrees without muscle spasm or guarding severe enough to result in abnormal spinal contour. 3. The Veteran is right-handed. 4. Prior to March 17, 2020, the Veteran's bilateral cervical radiculopathy was manifested by no more than mild incomplete paralysis of the right and left upper extremities. 5. On and after March 17, 2020, the Veteran's bilateral cervical radiculopathy was manifested by moderate incomplete paralysis of the right and left upper extremities. 6. For the entire appeal period, the Veteran's IBS is manifested by moderate symptoms of frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for fibromyalgia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 8850-5025. 2. The criteria for a disability rating in excess of 10 percent for cervical arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237. 3. Prior to March 17, 2020, the criteria for a disability rating in excess of 20 percent for right and left cervical radiculopathy of the upper radicular group have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 8510. 4. On and after March 17, 2020, the criteria for a disability rating in excess of 40 percent for right cervical radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 8510. 5. On and after March 17, 2020, the criteria for a disability rating in excess of 30 percent for left cervical radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 8510. 6. For the entire appeal period, the criteria for an initial rating of 10 percent, but no higher, for IBS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Code 8873-7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to November 2001; December 2003 to March 2005; and September 2010 to August 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in April 2020; a transcript is associated with the claims file. The Board previously remanded the claims in June 2020 to obtain additional VA examinations as the Veteran testified that his disabilities have worsened. Such development was performed, and the claims return to the Board for adjudication. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased rating claim 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 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Section 4.59 does not require objective evidence of painful motion. The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to "objective" evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to a compensable disability rating for fibromyalgia The Veteran's fibromyalgia is currently rated under Diagnostic Code 8850-5025. Diagnostic Code 8850 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War Veteran by analogy to one of the musculoskeletal diseases found in VA's Rating Schedule and Diagnostic Code 5025 is the rating code for fibromyalgia. Under Diagnostic Code 5025 for fibromyalgia, a rating of 10 percent is assigned whenever there is 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 require continuous medication for control; a 20 percent rating is assigned when symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but are present more than one-third of the time. A 40 percent rating, the maximum available, is warranted when symptoms are constant or nearly constant and refractory to therapy. 38 C.F.R. § 4.71a, Diagnostic Code 5025. For VA purposes, "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. Id. at Note. The Board notes that the Veteran is separately rated for a psychiatric disability, radiculopathy, arthritis of the neck and spine, tension headaches, and irritable bowel syndrome, and symptoms of such service-connected disabilities cannot be considered in his rating for fibromyalgia. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). At a June 2017 VA examination, the Veteran described his widespread joint pain as "stiffness and aching" to the neck, knees, and ankles; the Veteran also indicated that he has paresthesias down the arms, especially in the morning. While continuous medication was not required to control these symptoms, the VA examiner indicated that the Veteran's symptoms included widespread musculoskeletal pain "in most joints", stiffness, fatigue, sleep disturbances, paresthesias, headache, depression, anxiety, and IBS that are present for more than one-third of the time. The examiner marked several tender points. At a November 2018 VA examination, the Veteran stated that his symptoms have "increased in frequency and severity" over the last 18 months. While the Veteran did not require the use of continuous medication, he did use over the counter products when "pain is intolerable." The examiner indicated that he still had many of the same symptoms which were present for more than one-third of the time. The examiner marked several tender points. At the April 2020 hearing, the Veteran testified that his fibromyalgia symptoms worsened. Specifically, the Veteran stated his fibromyalgia worsened over the previous year, as he now has difficulty getting up and walking, and requires assistance at times, especially in the morning. He additionally stated that some of his fibromyalgia symptoms flare after emotional stress, such as experiencing nightmares. At the September 2020 VA examination, the Veteran continued to complain of body aches, joint pain, and increased fatigue. The examiner indicated that the Veteran was currently undergoing treatment and that his fibromyalgia symptoms were refractory to therapy specifically writing that the Veteran is receiving care through VA and that "his symptoms have increased in severity despite medication therapies." The examiner noted many of the symptoms described above and estimated that these symptoms were constant or nearly constant, but did not require the use of continuous medication. Lastly, the examiner marked that the Veteran did not have tender points. In a December 2020 addendum opinion, the examiner changed her response to several items. Specifically, she indicated that the Veteran was not currently undergoing treatment and that his symptoms were not refractory to therapy. It appears as though the basis for these changes was that the Veteran's VA treatment notes solely document that he has a history of fibromyalgia, and not that he has received any specific therapy or how his symptoms are refractory to it. However, the VA examiner did identify that the Veteran has multiple trigger points bilaterally. Based on the foregoing, the Board finds that the evidence shows that the Veteran's fibromyalgia is present more than one-third of the time with pain precipitated by emotional stress, as found on all of the VA examinations and his April 2020 testimony. He reported pain, stiffness, and fatigue, especially in the morning. As such, the Board finds a 20 percent disability rating is warranted. Although the evidence demonstrates that the Veteran has significant fibromyalgia symptoms, it is not refractory to therapy. In this regard, the Board weighs the December 2020 addendum opinion over the April 2020 VA examination. The April 2020 VA examination failed to explain what specific treatment the Veteran was obtaining and how his symptoms are refractory to therapy. To the contrary, the December 2020 opinion explicitly concludes that the Veteran's fibromyalgia symptoms are not refractory to therapy. Without this, the next higher 40 percent rating is not more nearly approximated and therefore not warranted. Accordingly, the Board finds that the Veteran is entitled to an increased rating to 20 percent, but not higher, for his fibromyalgia. The Board has applied the benefit of the doubt doctrine in the Veteran's favor. To this extent, the claim is granted. 2. Entitlement to an initial disability rating in excess of 10 percent for arthritis of the cervical spine For ease of discussion, the Board will first discuss the Veteran's rating specifically for cervical arthritis and then move forward to any increased rating for cervical radiculopathy. The Veteran's arthritis of the cervical spine is rated at 10 percent under Diagnostic Code 5237, which is governed by the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5237. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, DC 5237, Note (2). The normal combined range of motion of the cervical spine is 340 degrees. Id. Any objective neurologic abnormalities associated with a disability of the spine are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. At a June 2017 VA examination, the Veteran reported "constant aching pain and stiffness" in his neck; he did not report flare-ups. Under initial range of motion testing, forward flexion was to 45 degrees, extension was to 45 degrees, right lateral flexion was to 45 degrees, left lateral flexion was to 45 degrees, and bilateral lateral rotation was to 80 degrees, resulting in a combined range of motion of 340 degrees. The examiner noted that there was no evidence of any pain on motion, nor was there evidence of tenderness or pain on palpation. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). After repetitive motion testing, there was no change in the Veteran's range of motion. There was no muscle spasm, guarding, or ankylosis of the spine. The examiner noted that the Veteran did not have IVDS. At a November 2018 VA examination, the Veteran reported an increase in pain and stated "occurrence is now 10-15 days a month. Rate pain as 6/10." The Veteran also described how he has increased pain with radiating to both shoulders and paresthesias in arm and hands when he wakes in the morning; he did not report flare-ups. Under initial range of motion testing, forward flexion was to 45 degrees, extension was to 45 degrees, right lateral flexion was to 45 degrees, left lateral flexion was to 45 degrees, and bilateral lateral rotation was to 80 degrees, resulting in a combined range of motion of 340 degrees. The examiner noted that there was no evidence of any pain on motion, nor was there evidence of tenderness or pain on palpation. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). After repetitive motion testing, there was no change in the Veteran's range of motion. There was no muscle spasm, guarding, or ankylosis of the spine. The examiner noted that the Veteran did not have IVDS. No radiculopathy or other neurological impairment of the upper extremities was noted, and the Veteran's muscle strength and sensory examinations were all normal. At the April 2020 hearing, the Veteran testified that his cervical arthritis worsened. Namely, he testified that he has restricted range of motion, and demonstrated being able to move his head only halfway to his shoulder on each side. The Veteran also endorsed experiencing shooting pains down his arms, causing tingling and numbness in his hands and fingers. At a September 2020 VA examination, the Veteran endorsed constant aching pain that radiates down both arms; he did not report flare-ups. Under initial range of motion testing, forward flexion was to 40 degrees, extension was to 45 degrees, right lateral flexion was to 35 degrees, left lateral flexion was to 25 degrees, and bilateral lateral rotation was to 70 degrees, resulting in a combined range of motion of 285 degrees. The examiner stated that due to neck pain, the Veteran has difficulty working overhead and turning his head to drive. IVDS was not noted. Regarding any radiculopathy, this examiner indicated that the Veteran has mild bilateral upper paresthesias of the upper and middle radicular groups. At a March 2021 VA examination for radiculopathy, the Veteran reported constant numbness and tingling from his arms down into his fingers that causes difficulty lifting 10 pounds or more. He also reported throbbing pain into his shoulders and elbows and pain in the wrists and hands, worse in the mornings and causing difficulty gripping items and opening jars. The VA examiner indicated that the Veteran's bilateral upper extremities exhibited mild constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. The VA examiner estimated that his bilateral radial and median nerves exhibited moderate incomplete paralysis, ulnar nerve exhibited mild incomplete paralysis, and that the upper radicular group was normal. Based on the above, the Board finds that the Veteran's cervical spine disability has been manifested by pain, painful motion, limitation of forward flexion to no less than 40 degrees, extension to no less than 45 degrees, right lateral flexion no less than 35 degrees, left lateral flexion no less than 25 degrees, and bilateral lateral rotation no less than 70 degrees, resulting in a combined range of motion of 285 degrees, and subjective complaints of pain and stiffness. When these symptoms are applied to the rating criteria, they are consistent with the current 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237. This rating reflects pain and some limitation of motion. See id. A higher rating requires forward flexion of the cervical spine not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis of the cervical spine. This level of impairment is not shown on the record, even when considering flare-ups. Thus, a rating higher than the current 10 percent is not warranted. Regarding radiculopathy, the Board notes that the Veteran's bilateral upper and lower extremities are both service connected. However, solely the upper extremities are deemed related to his cervical spine disability; the lower extremities are related separately to his lumbar spine disability. The Veteran's lumbar spine disability was previously before the Board in June 2020 on the issue of service connection; this issue was granted in an October 2020 rating decision, along with entitlement to service connection for bilateral lower extremity radiculopathy. This constitutes a full grant of benefits on appeal. As such, only the rating for the Veteran's bilateral upper extremity radiculopathy is before the Board, as that is specifically tied to his cervical spine disability. Upon review of the record, the Board finds that the initial 20 percent ratings for right and left upper extremity radiculopathy assigned prior to March 17, 2020, and the 40 percent rating assigned for right upper extremity radiculopathy and the 30 percent rating assigned for left upper extremity radiculopathy as of that date, are appropriate, and the claims for increase are denied. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group of nerves (fifth and sixth cervicals). Diagnostic Code 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. Here, the September 2020 VA examination found bilateral mild upper and middle radicular group radiculopathy. This satisfies the precise criteria for dual 20 percent ratings for the major and minor side. As such, prior to March 17, 2020, the initial 20 percent ratings assigned for right and left upper extremity radiculopathy under Diagnostic Code 8510 is appropriate. The Board further finds that the 40 percent rating assigned for the Veteran's right upper extremity radiculopathy and the 30 percent rating assigned for his left upper extremity radiculopathy as of March 17, 2020, are the most appropriate ratings for his radiculopathy. Here, the March 2021 examiner specifically found the Veteran's bilateral upper extremity radiculopathy to be moderate in nature, warranting a 40 percent rating for his dominant right upper extremity and a 30 percent rating for his minor left upper extremity. As no evidence of record documents that the Veteran has experienced severe symptoms of radiculopathy in either upper extremity, the Board finds that the 40 percent and 30 percent ratings assigned as of March 17, 2020, for the Veteran's right and left upper extremity radiculopathy, respectively, are the correct ratings, and no higher or separate ratings are warranted. In so finding, the Board acknowledges that the March 2021 VA examiner found the Veteran's upper extremity radiculopathy to affect the radial, median, and ulnar nerves rather than the upper radicular group, as was found by the September 2020 VA examiner. However, the Board does not find that separate ratings under multiple Diagnostic Codes governing the different nerves are appropriate here. In so finding, the Board notes that separate ratings for each nerve group involving the right and left upper extremities may not be assigned as it would constitute pyramiding. See 38 C.F.R. § 4.14. The Note following Diagnostic Code 8719 states that "[c]ombined nerve injuries should be rated by reference to the major involvement or if sufficient in extent, consider radicular group ratings." 38 C.F.R. § 4.124a. Thus, while at least three different nerves are affected in the Veteran's upper extremities, rating the same symptomatology based on separate nerves under separate Diagnostic Codes would constitute pyramiding and is prohibited under 38 C.F.R. § 4.14. In addition, the record does not suggest that rating the Veteran's symptomatology under Diagnostic Codes 8514, 8515, or 8516 would warrant a higher rating, as the March 2021 VA examiner reported that the Veteran experienced no more than moderate incomplete paralysis bilaterally of any identified nerves. None of the identified Diagnostic Codes provides a rating higher than 40 percent for the major extremity or 30 percent for the minor extremity for moderate incomplete paralysis. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against awarding disability ratings in excess of the 20 percent ratings initially assigned prior to March 17, 2020, and in excess of 40 percent and 30 percent thereafter, for the Veteran's right and left upper extremity radiculopathy. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable to these facts. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. The claims are denied. 3. Entitlement to a compensable disability rating for IBS The Veteran's IBS is currently rated under Diagnostic Code 8873-7319. Diagnostic Code 8873 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the gastrointestinal diseases found in VA's Rating Schedule. The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7319, pertain to irritable colon syndrome. Under Diagnostic Code 7319, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. At a July 2017 VA examination, the Veteran stated that "within 15 minutes of eating that he has to have a bowel movement." The Veteran estimated that this occurs 2 to 4 times daily and described his bowel movements as "soft to liquid in nature." The VA examiner noted that while the Veteran's symptoms included diarrhea, this condition was not treated with medication and he has not had any episodes of bowel disturbance with abdominal distress, or exacerbations or attacks. The examiner also noted that the Veteran did not experience weight loss attributable to an intestinal condition, experienced malnutrition, serious complications, tumors, or neoplasms of the intestines. At the April 2020 hearing before the undersigned, the Veteran testified that his IBS is one of his most debilitating disabilities. The Veteran endorsed having bowel movements five to eight times a day, including chronic diarrhea. He stated that his medication wears off, and that he experiences flare ups of his IBS, to the point where he has to make emergency stops to use a restroom when out in public. The Veteran also noted some physical manifestations of his condition, including an abrasion-type wound in his buttocks region. As stated in the June 2020 Board decision, review of the Veteran's VA medical records shows that in December 2017, the Veteran was noted to have diarrhea with bowel movements five to eight times a day and was diagnosed with chronic diarrhea associated with IBS. However, the November 2018 VA examiner noted that the Veteran did not have diarrhea. The examiner further made no other physical findings and noted that IBS does not impact the Veteran's ability to work. As such, the June 2020 Board decision found the November 2018 VA examination inadequate. As a result, it shall not be afforded any probative weight. At a September 2020 VA examination, the Veteran again reiterated that he has loose stools and frequent diarrhea 4-5 times a day that was controlled with medication. The Veteran also reported that he will occasionally have distention. Nevertheless, the examiner estimated that the Veteran did not have any episodes of bowel disturbance with abdominal distress, or exacerbations, or attacks of the intestinal condition. The examiner also noted that the Veteran did not experience weight loss attributable to an intestinal condition or experience malnutrition, serious complications, tumors, or neoplasms of the intestines. A January 2021 clarification opinion was obtained to determine how the Veteran can have diarrhea 4 to 5 times a day with occasional abdominal distention, yet have no episodes of bowel disturbance. The examiner reasoned that the Veteran's IBS diagnosis is unsupported by the evidence. An April 2021 VA examination was obtained to resolve the outstanding issues of how severe the Veteran's IBS is. At the examination, the Veteran was clearly diagnosed with IBS and reiterated that he has loose stools 3 times a day controlled by medication and accompanied by distension. The examiner estimated that the Veteran has frequent episodes of bowel disturbance with abdominal distress. The examiner also noted that the Veteran did not experience weight loss attributable to an intestinal condition, experienced malnutrition, serious complications, tumors, or neoplasms of the intestines. Based on the above, and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record shows that his IBS is moderate in nature as he exhibits frequent episodes of bowel disturbances with abdominal distress. The Board emphasizes the April 2021 VA examination and the Veteran's credible testimony that he has diarrhea several times daily. As such, an initial 10 percent rating is warranted throughout the appeal period. However, a rating in excess of 10 percent for IBS is not warranted as the evidence fails to show severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. In conclusion, and affording the benefit of the doubt to the Veteran, the Board finds that an initial 10 percent rating, but no higher, is warranted for his IBS under Diagnostic Code 7319. To this extent, the claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.