Citation Nr: 21029830 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-29 539 DATE: May 17, 2021 ORDER An initial 50 percent rating for service-connected irritable bowel syndrome (IBS) is granted. An extraschedular rating for service-connected IBS is denied. An extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 25, 2010, is granted. A total disability due to individual unemployability due to service-connected disabilities from October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012, is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's IBS with peritoneal adhesion symptoms have been manifested by irritable bowel syndrome and severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension and severe nausea as well as moderately severe symptoms with occasional episodes of abdominal distension and constipation, pulling pain aggravated by movements of the body and on attempting work. 2. Throughout the period on appeal, the Veteran's IBS symptoms are adequately contemplated by the rating schedule and do not result in other related factors identified in the regulations as governing norms, to include marked interference with employment or frequent periods of hospitalization. 3. Prior to October 25, 2010, the Veteran was rendered unable to secure or follow substantially gainful employment as a result of her service-connected IBS. 4. From October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012, the Veteran was rendered unable to secure or follow substantially gainful employment as a result of her service-connected IBS and PTSD disabilities. 5. The Veteran is not entitled to SMC (housebound rate) because she does not have at least one total rating with any remaining service-connected disabilities that have a combined evaluation exceeding 60 percent and involve different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but no higher, for service-connected IBS have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7301. 2. The criteria for an extraschedular rating for service-connected IBS have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.114, Diagnostic Codes 7301, 7319; Thun v. Peake, 22 Vet. App. 111, 114 (2008). 3. The criteria for an extraschedular TDIU prior to October 25, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. 4. The criteria for a TDIU from October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400(o)(2), 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. 5. The criteria for SMC based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have not been met. 38 U.S.C. § 1114(s), 5107, 5121; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to January 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2015, the Veteran testified at a Board hearing before a Veterans Law Judge who subsequently became no longer employed by the Board during the pendency of this appeal. The Board notified the Veteran of this in a February 2021 notice letter and requested that she indicate within 30 days whether she wanted a second hearing, in accordance with 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707. Pursuant to the instructions of this letter, the appeal will now continue because a response was not received within the allotted period. In a December 2015 decision, the Board denied the Veteran's claim for entitlement to an initial evaluation in excess of 10 percent for IBS prior to January 29, 2015; the Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Partial Remand (JMPR) was filed and on March 2017, the CAVC vacated the December 2015 denial and returned the case to the Board for action consistent with the JMPR. The JMPR found that the Board erred in the following: not adequately discussing the frequency of the Veteran's IBS symptoms; not adequately addressing the Veteran's lay statement's regarding her symptoms; and it failed to address the Veteran's surgeries, misdiagnoses, extreme symptoms, including symptoms not covered by the schedule in its extraschedular analysis. On remand to the Board, in August 2017, the Board found that Diagnostic Code (DC) 7319 was most analogous to the Veteran's disability, and that prior to January 29, 2015, the Veteran's IBS warranted an initial evaluation of 30 percent, the maximum schedular rating available under DC 7319. At the time, the Board also remanded the issue of entitlement for an extraschedular rating for service-connected IBS for compliance with the March 2017 JMPR. In March 2018, during the pendency of this appeal, the RO evaluated the Veteran's IBS with peritoneal adhesions and increased the award to the maximum 50 percent rating under DC 7301, effective January 26, 2018. The December 2015 rating decision also granted a total disability rating based on individual unemployability due to service-connected disabilities and became effective July 10, 2012. However, the issue of TDIU for the period prior to July 10, 2012, remains in appellate status because there were other increased rating claims already on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability ratingwhether expressly raised by a Veteran or reasonably raised by the recordis not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. In conjunction with the Court's decision in Harper v. Wilkie, 30 Vet. App. 356 (2018), when the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a notice of disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. Furthermore, if the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the outstanding period remains in appellate status. Id. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. An initial staged rating in excess of 30 percent for service-connected IBS prior to January 26, 2018. The Veteran contends that her service-connected IBS is worse than the current staged ratings reflect. Prior to January 26, 2018, the Veteran's IBS was evaluated at the maximum 30 percent rating under DC 7319 for irritable bowel syndrome. Since January 26, 2018, her digestive system disability is rated at the maximum 50 percent rating under DC 7301 for IBS with peritoneal adhesions. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). An initial staged 30 percent rating has been assigned from October 30, 2009, to January 26, 2018, pursuant to hyphenated Diagnostic Code 8873-7319. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability. 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. Under Diagnostic Code 7319 (irritable colon syndrome), 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. Under DC 7301, which rates adhesions of the peritoneum, a 30 percent rating is warranted for adhesions moderately severe, with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note accompanying DC 7301 indicates that ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. The terms "slight," "moderate," and "severe" are not defined in the 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. After a full review of the record, and as discussed below, the Board concludes that an initial 50 percent rating for service-connected IBS is warranted for the entire period on appeal. The October 2010 VA examination reflects the Veteran had complaints of fluctuating weight loss and gain, diarrhea, and vomiting. The examination notes numerous surgeries to include two exploratory laparotomies, gallbladder removal, hysterectomy, and two colonoscopies. Additionally, the examination noted the Veteran reported missing work for several days due to her abdominal pain which resulted in her being terminated in 2007. The VA examiner found the Veteran's symptoms to be consistent with IBS. In February 2011, a VA examiner was asked to address the appropriate diagnosis for the Veteran's condition. Irritable bowel syndrome was diagnosed, among other things. VA and private treatment records show various treatments and surgeries for bowel and abdominal problems. Reports of pain and nausea are also noted. The Veteran's mother submitted a statement in October 2012 indicating that the Veteran has suffered from stomach problems since returning from active duty in Saudi Arabia. Some of the complications reported to result from these stomach problems include regular visits to the doctor, spending most days at home close to the bathroom, cramping, and limited travel. Also, in October 2012, the Veteran stated on her VA form 9 that she suffers from daily pain. She reported that 70 percent of the time she experiences diarrhea that is sometime accompanied by nausea and vomiting. Other symptoms include rectal pain when wiping, abdominal cramping, swollen stomach, and blood in stool. At an October 2014 VA intestinal conditions examination, a diagnosis of IBS was rendered, and symptoms were noted to include alternating diarrhea and constipation, abdominal distension, and nausea. Episodes of bowel disturbance with abdominal distress were reported to be occasional. There was no evidence of weight loss, malnutrition or other general health effects, or tumors/neoplasms. The Veteran's IBS was observed to not impact her ability to work. Most recently, the Veteran was provided a VA examination for intestinal conditions in January 2015. A diagnosis of IBS was rendered and symptoms were noted to include alternating diarrhea and constipation with diarrhea occurring 5 to 12 times a day and constipation occurring every other week lasting up to 2 days at a time; abdominal distension from bloating/gas approximately three times a week; daily nausea; daily vomiting; and daily abdominal pain and cramping. Continuous medication is required for control of the Veteran's intestinal condition, including morphine and Imodium. Episodes of bowel disturbance with abdominal distress were reported to be more or less constant. There was no evidence of weight loss, malnutrition or other general health effects, or tumors/neoplasms. The Veteran's IBS was observed to impact her ability to work because frequent bathroom breaks result in a severe impact on productivity. The Board has also reviewed VA treatment records and the non-VA treatment records from various healthcare providers. To the extent these records discuss the Veteran's IBS they report similar symptomatology to the VA examinations that is alternating diarrhea and constipation, abdominal distension, vomiting, abdominal pain and cramping, and blood in stool. The Veteran testified before the Board in September 2015. At that time, she noted she thought her IBS had gotten worse since service connection was initially established. She reported symptoms of vomiting, abdominal pain, drastic weight loss, and menstrual type cramps though she has had a hysterectomy. A November 2017 VA examination revealed the Veteran had four surgeries for lysis of abdominal adhesions, most recently in 2009. The surgeries were performed to alleviate aggravated IBS symptoms. A February 2018 VA examination for peritoneal adhesions revealed irritable bowel syndrome and severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension and severe nausea as well as moderately severe symptoms with occasional episodes of abdominal distension and constipation, pulling pain aggravated by movements of the body and on attempting work. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for the IBS with peritoneal adhesions. The Veteran is competent to report symptomatology relating to the IBS because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. However, the Board finds that the question of the severity of the IBS is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of her allegations is outweighed by the aforementioned examiners' findings. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Accordingly, the Board finds that the medical examination opinions and findings are of greater probative value than the Veteran's allegations regarding the severity of the IBS with peritoneal adhesions. The Veteran is now rated at the maximum 50 percent disability rating for IBS with peritoneal adhesions under 38 C.F.R. § 4.114, DC 7301. See Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if supported by explanation and evidence). The Board has also considered whether higher or separate Diagnostic Codes are applicable. The evidence of record indicates that the Veteran's service-connected IBS with peritoneal adhesions is primarily manifested by irritable bowel syndrome and severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension and severe nausea as well as moderately severe symptoms with occasional episodes of abdominal distension and constipation, pulling pain aggravated by movements of the body and on attempting work. There is no medical or lay evidence of other IBS-related symptoms that would not result in the pyramiding of other digestive system-related Diagnostic Codes. The Board has considered whether higher ratings are available under another Diagnostic Code but finds that none apply. The Veteran's IBS with peritoneal adhesion symptoms are clearly accounted for in the 50 percent rating pursuant to DC 7301. Based on the foregoing, the Board concludes that an initial rating in excess of 50 percent for IBS with peritoneal adhesions is not warranted for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. An extraschedular rating for service-connected irritable bowel syndrome. The Veteran generally contends that her service-connected IBS is more severe than contemplated by the rating schedule. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id.; see also 38 C.F.R. § 3.321(b)(1). Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). In the August 2017 decision, the Board referred the question of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 to the Director, Compensation Service. In a decision received July 2019, the Director denied entitlement to an extraschedular rating for IBS. The Director found that VA examinations from October 2010 through October 2012 show numerous complaints associated with IBS and various treatments and surgeries for her bowel and abdominal problems. Statements provided on the Veteran's behalf reported that the Veteran's symptoms caused her to spend most days at home within close proximity to a bathroom, cramping and limited travel. Furthermore, the Veteran indicated being terminated in 2007 due to her service-connected IBS. An October 2014 VA examination revealed that her IBS symptoms included alternating diarrhea and constipation, abdominal distension, and nausea. The VA examiner reported no evidence of weight loss, malnutrition or other general health effects. The Veteran testified before the Board in September 2015. At that time the Veteran reported symptoms including vomiting, abdominal pain, drastic weight loss, and menstrual type cramps though she has had a hysterectomy. She described how her IBS symptoms interfered with her employment and caused visits to the emergency room. On VA examination in November 2017, the Veteran described current waxing and waning of IBS-related symptoms. The VA examiner noted the Veteran had multiple surgeries that were not due to her IBS but did cause adhesions (a common complication of abdominal surgery), that have aggravated the IBS. The Veteran also had four surgeries for lysis of the adhesions to alleviate the aggravated condition of her IBS. The February 2018 VA contract examination revealed the Veteran suffers from peritoneal adhesions affecting the stomach, small intestines and large intestines. Symptoms included partial or complete bowel obstruction, pain, nausea, vomiting, abdominal distention, and constipation. The Veterans symptoms were reported as severe. Further, based on the evidence reviewed, the Director opined that the facts in this case appear to show the Veteran's disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board finds that the Director's opinion contains a statement of reasons or bases and is supported by the overall evidence. Kuppamala v. McDonald, 24 Vet. App. 447 (2016). The Director cited to the relevant regulatory provisions and explained the rationale for concluding that an extraschedular rating was not warranted. Therefore, that decision is reviewable by the Board de novo. The Board agrees with the Director and finds that an extraschedular rating is not warranted. Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis. The Board does not find that the evidence of record shows such an exceptional disability picture that the available schedular evaluation for the service-connected IBS disability is inadequate or impractical for evaluating a disability of the severity experienced by the Veteran. Rather, a comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Using the prior 30 percent rating, the Veteran's IBS symptoms that were considered under DC 8873-7319 consisted of severe diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress; however, the Veteran still had symptoms not contemplated by that Diagnostic Code for the period prior to January 26, 2018. As a result of this decision, the maximum 50 percent rating under DC 7301 for IBS with peritoneal adhesions contemplates her level of disability and symptomatology by addressing irritable bowel syndrome and severe adhesions, with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension and severe nausea as well as moderately severe symptoms with occasional episodes of abdominal distension and constipation, pulling pain aggravated by movements of the body and on attempting work. Furthermore, the criteria for rating IBS with peritoneal adhesions under DC 7301 include consideration of overall "severe" IBS-related symptomatology, which the Board has done in evaluating all of the evidence to arrive at an "equitable and just decision." 38 C.F.R. § 4.6. Hence, the criteria under DC 7301 encompass a broad range of effects of the symptoms associated with the Veteran's IBS, to include those described by the Veteran; she testified that her IBS, when present, causes symptoms already contemplated by the rating criteria. The rating criteria allows for the categorization of IBS with peritoneal adhesions as mild, moderate, or severe, giving the Board the flexibility to consider symptoms that are not explicitly considered. As such, the schedular rating criteria that have been applied in this case reasonably and adequately contemplate the Veteran's IBS disability picture and therefore an extraschedular rating is not warranted. As a result, the Board finds that these symptoms shown during the appeal period have not amounted, overall, to more than severe symptomatology. Therefore, the rating assigned for the service-connected IBS during the applicable period contemplate all of the Veteran's reported and observed symptoms during that time, as set forth above, and the Veteran has not demonstrated any symptomatology that is not already within the scope of the applicable criteria. In the instant case, the Board finds that the Veteran has not raised the issue of any symptoms not contemplated by the rating schedule. The disability picture presented in this case is not unusual but rather, is one that is contemplated by the schedular rating criteria. Accordingly, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular ratings for the service-connected IBS is inadequate and an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 115. 3. Entitlement to TDIU prior to July 10, 2012. The Veteran seeks a TDIU rating for the period prior to July 10, 2012. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Veteran has the following disabilities that are service connected: IBS with peritoneal adhesions (rated 50 percent since October 30, 2009); PTSD (rated 70 percent since October 25, 2011). Based on the forgoing, the Veteran has one disability rated 60 percent or more OR at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more since October 25, 2011. However, the Board may consider the period up to one year prior to the initial eligibility for schedular TDIU, which makes the schedular period for consideration from October 25, 2010, to March 1, 2012. See 3.400(o)(2). The Board notes that March 1, 2012, to July 1, 2012, represents the dates the Veteran stated she last worked in a position of substantially gainful employment. The Board may also consider a claim for TDIU on an extraschedular basis during the period prior to October 25, 2010. For the reasons that follow, the Board finds that an extraschedular TDIU is warranted prior to October 25, 2010, and a schedular TDIU is warranted from October 25, 2010, to March 1, 2012, and from July 2, 2012, through July 9, 2012. TDIU has already been awarded for the period since July 10, 2012, however, it appears the AOJ made a mistake in that the Veteran last worked full time July 1, 2012, not July 10, 2012.According to the September 2015 VA Form 21-8940 Veteran's Application For Increased Compensation Based On Unemployability, the Veteran affirmed that she last held a position of substantially gainful employment from March 2012 to July 1, 2012. From October 25, 2010, to March 1, 2012, the Veteran's ability to secure and follow a substantially gainful occupation was impacted by the physical and mental effects of her service-connected IBS and PTSD. Her physical symptoms include alternating diarrhea and constipation, abdominal distention, nausea, vomiting, abdominal pain and cramping, and blood in her stool. Her mental symptoms include depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, abnormal speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. The Veteran's September 2015 VA Form 21-8940 indicated that she had completed high school and some college. She had special training or other schooling that consisted of computer programming classes and information technology training. Her previous employment included work as a system analyst. Her September 2015 Board hearing testimony clarified that she had also completed two years of college. She also endorsed that her IBS and PTSD made it very difficult to maintain employment due to her symptoms associated with her IBS and PTSD, as well as doctor and hospital visits. She also testified that she experienced residuals of the morphine prescribed for her IBS, which made it difficult to work due to persistent anxiety and concentration/memory problems. She described the difficulties she experienced with her IBS and PTSD symptoms when she tried to start working again (March 2012 to July 2012), and that she had to return to the emergency room on multiple occasions due to bleeding caused by her IBS-related symptoms. A review of the VA examiners' opinions and the reported symptomatology reveals a psychiatric condition that alone nearly makes it impossible to follow a substantially gainful occupation. The October 2012 examiner, who most thoroughly addressed the issue, noted the Veteran's psychiatric condition would likely have a substantial impact on her ability to work and communicate with others, be productive, and simply show up for work on a regular basis. Common symptoms of the Veteran's condition noted by other VA examiners included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. Considering that the severity of the Veteran's psychiatric condition alone almost makes it impossible to follow a substantially gainful occupation, it takes little additional disability to persuade the Board that the Veteran has been unemployable since her last employment took place from March 2012 to July 2012. During that period, the Veteran stated on her September 2015 application for TDIU that her highest gross earnings per month was $8,000, which more than qualifies as substantially gainful employment. In addition, the Board looks to the period prior to March 1, 2012, and finds that the Veteran experienced the same level of symptoms that prevented her from maintaining substantially gainful employment since at least October 25, 2010, to March 1, 2012. Social Security Administration records show the Veteran has been unable to work due to her IBS and psychiatric disabilities since November 1, 2008. However, for VA purposes, she did not meet the schedular criteria for TDIU until at least October 25, 2010, which is one year prior to the date of claim where the evidence shows she was unable to maintain substantially gainful employment due to her service-connected disabilities. 38 C.F.R. § 3.400(o)(2) (the effective date of an award based on a claim for increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from that date). See also 38 U.S.C. § 5110(a). As such, the severity of the Veteran's IBS more than establishes that in combination with the service connected psychiatric condition it is impossible to follow a substantially gainful occupation. The evidence of record shows that the Veteran's IBS further diminishes her already reduced productivity because she has to frequently use the bathroom. The Board expects other problems associated with IBS would result in absenteeism beyond what is already caused by the psychiatric condition. Additionally, the Veteran's need to take morphine to manage abdominal pain further exacerbates concentration and memory problems. The Veteran also testified that her attempt to work again from March 2012 to July 2012 resulted in increased bleeding and trips to the emergency room due to her IBS. She also missed a few days of work each month during that period of employment due to her service-connected disabilities. Based on the foregoing, the Board finds that entitlement to a schedular TDIU is granted because the combined effects of the Veteran's service-connected disabilities have made it impossible to maintain a substantially gainful occupation consistent with her education, skills, training, and work history from October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has also considered the claim for a TDIU on an extraschedular basis prior to October 25, 2010. 38 C.F.R. § 4.16(b). In a November 2020 advisory opinion, the Director of Compensation Service denied entitlement to TDIU on an extraschedular basis. Contrarily, the Board finds that extraschedular TDIU is warranted for the period prior to October 25, 2010. While the Veteran is only service-connected for IBS with peritoneal adhesions prior to October 25, 2010, the preponderance of the evidence, as explained throughout the entirety of this decision, shows she was unable to maintain substantially gainful employment during this period. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, extraschedular TDIU is warranted because the service-connected IBS with peritoneal adhesions is of sufficient severity to render the Veteran unable to follow or maintain substantially gainful employment prior to October 25, 2010. 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. The AOJ will set the effective date of the grant of extraschedular TDIU in an implementing rating decision as this preserves the Veteran's right to appeal this downstream issue if she so desires. 4. SMC consideration. A veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Relevant to this appeal, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). VA has expressly adopted the Akles rule for all complete claims, stating "VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to [SMC] under 38 C.F.R. § 3.350)." 38 C.F.R. § 3.155(d)(2) (applicable to claims filed on and after March 24, 2015). As previously discussed in this decision, the Veteran's combined schedular disability rating was 50 percent from October 30, 2009, to October 25, 2011, and 80 percent thereafter. The Veteran is service connected and in receipt of a 50 percent disability rating for IBS with peritoneal adhesions (effective October 30, 2009), and a 70 percent rating for PTSD (effective October 25, 2011). As a result of this decision, TDIU is granted, effective October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012, based on the Veteran's service-connected IBS and PTSD. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). In Bradley, the veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating. See Bradley, 22 Vet. App. at 293. The Court determined, however, that "the Secretary should have assessed whether [the veteran's] TDIU rating was warranted based on his PTSD alone before substituting a combined total rating for his TDIU rating." Id. at 294. The Court reasoned that "a TDIU rating for PTSD alone would entitle [the veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating." Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s). Id. However, a TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Board's decision herein to grant TDIU from October 25, 2010, to March 1, 2012, and from July 2, 2012, to July 9, 2012, reflects that the benefit is granted based upon two service-connected disabilities. Furthermore, the grant of an extraschedular TDIU prior to October 25, 2010, is based on the lone service-connected disability during that period. As a result, the Veteran is not entitled to SMC because she does not have a single disability rated at 100 percent with additional disabilities rated at 60 percent or more involving different anatomical segments or bodily systems at any point during the appeal period. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); see also Bradley v. Peake, 22 Vet. App. 280 (2008). (CONTINUED ON NEXT PAGE) In conclusion, the preponderance of the evidence weighs against the Veteran's inferred claim of entitlement to special monthly compensation. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.