Citation Nr: 26001237 Decision Date: 01/29/26 Archive Date: 01/29/26 DOCKET NO. 16-21 969 DATE: January 29, 2026 ORDER An initial maximum 40 percent rating for residuals of the service-connected Brucellosis is granted. Prior to January 5, 2021, a compensable rating for the service-connected status post cholecystectomy residuals (post-cholecystectomy syndrome) with gastroesophageal reflux disease (GERD) is denied. From January 5, 2021 through April 21, 2024, a rating in excess of 10 percent for the service-connected status post cholecystectomy residuals with GERD is denied. For the period beginning April 22, 2024, a rating in excess of 30 percent for the service-connected status post cholecystectomy residuals with GERD is denied. Entitlement to a total disability rating, based on individual unemployability (TDIU), due to service-connected disabilities, is granted. FINDINGS OF FACT 1. The Veteran's service-connected Brucellosis is currently inactive; current residuals include widespread musculoskeletal pain, headache, fatigue, subjective complaints of depression, sleep disturbance, and cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), which are constant or nearly so, and refractory to therapy. 2. Prior to January 5, 2021, the service-connected status post cholecystectomy residuals with GERD was asymptomatic. 3. From January 5, 2021, through April 21, 2024, the service-connected status post cholecystectomy residuals with GERD was manifested by no more than mild symptoms; the Veteran did not have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain, productive of considerable impairment health. 4. For the period beginning April 22, 2024, the Veteran is in receipt of the maximum schedular rating available for the service-connected status post cholecystectomy residuals with GERD under Diagnostic Code 7318; the Veteran does not have symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 5. The Veteran's service-connected disabilities render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate 40 percent rating, but no higher, for residuals of the service-connected Brucellosis, rated by analogy to fibromyalgia, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.88b, Diagnostic Code 6316, Note 2; 4.71a, Diagnostic Code 5025. 2. Prior to January 5, 2021, the criteria for a compensable rating for the service-connected status post cholecystectomy residuals with GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 4.114 Diagnostic Code 7318. 3. From January 5, 2021 through April 21, 2024, the criteria for a rating in excess of 10 percent for the service-connected status post cholecystectomy residuals with GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114 Diagnostic Code 7346-7318. 4. For the period beginning April 22, 2024, the criteria for a rating in excess of 30 percent for the service-connected status post cholecystectomy residuals with GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114 Diagnostic Code 7346-7318. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1987 to June 2000, from November 2004 to September 2005, and from November 2005 to September 2007. The Veteran also service on active duty in the United States Army from November 2007 to July 2008 and from August 2008 to November 2011. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a December 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, granted service connection for Brucellosis with an initial noncompensable disability evaluation from December 1, 2011, as well as service connection for status post cholecystectomy (claimed as gallbladder removal) with an initial noncompensable disability rating from May 16, 2013. The Veteran's Notice of Disagreement (NOD) was received in September 2014. The Statement of the Case (SOC) was issued in March 2016, and the Veteran's VA Form 9, substantive appeal to the Board, was received in May 2016. In February 2019, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) for a Board videoconference hearing. The transcript is of record. In July 2019, the claims were remanded for further development and adjudication. In a January 2021 rating decision, the disability rating for the service-connected status post cholecystectomy with residuals (post-Cholecystectomy Syndrome) with GERD was increased from non-compensable to 10 percent from January 5, 2021. In September 2022, the Veteran appeared before the undersigned VLJ for a second Board hearing. The transcript is of record. In August 2023, the claims were remanded for further development and adjudication. The case has been returned to the Board for further appellate action. In an April 2024 rating decision, the disability rating for the service-connected status post cholecystectomy with residuals (post-Cholecystectomy Syndrome) with GERD was increased from non-compensable to 30 percent from April 22, 2024. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6?Vet. App.?35 (1993). As the maximum benefit has not yet been awarded for the entire period on appeal, the claim for an increased rating for the service-connected status post cholecystectomy with residuals with GERD is still in controversy and on appeal. Id. In its August 2023 remand, the Board found the medical evidence insufficient to determine the Veteran's residual disabilities from Brucellosis and whether they could be distinguished from her service-connected Lyme disease with fatigue. The Board requested a VA medical opinion identifying residual disabilities of Brucellosis, evaluating reported symptoms, and addressing symptom overlap between the two conditions. VA medical opinions obtained in 2024, however, largely focused on whether the Veteran currently had, or had ever been diagnosed with, these diseases, which were already recognized as inactive since 2011, and therefore did not fully address the remand directives. Nonetheless, other evidence obtained during the remand period, including VA Infectious Diseases examinations in April 2024, December 2024, and January 2025 and updated VA treatment records, substantially addresses the Board's inquiries. Taken together, the evidence demonstrates that the Veteran experienced overlapping residual symptoms during the appeal period and that further differentiation between the two conditions is not medically possible. The Board therefore finds that the remand directives have been substantially complied with and that no additional medical opinion is warranted. In its August 2023 remand, the Board also found the record unclear as to whether the Veteran experiences gastrointestinal symptoms beyond those attributable to her service-connected GERD, and whether any such symptoms could be residuals of her service-connected cholecystectomy. Because of this uncertainty, the Board could not determine if coexisting digestive conditions were present or which condition was predominant under 38 C.F.R. § 4.114, and therefore remanded the claim for a VA medical opinion. VA medical opinions obtained in April and September 2024 did not fully address the remand directives. Nonetheless, subsequent VA examinations in April and November 2024 sufficiently addresses the Board's inquiries. The Board therefore finds that these remand directives have also been substantially complied with, and no further VA medical opinion is necessary. Increased Ratings Disability evaluations are determined by the application of VA's 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 active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking to work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable disability rating for the service-connected Brucellosis Applicable Diagnostic Codes The Veteran's service-connected Brucellosis is currently rated as noncompensable under 38 C.F.R. § 4.88b, Diagnostic Code 6316. 38 C.F.R. § 4.88b is the schedule of ratings for infectious diseases, immune disorders and nutritional deficiencies. The initial Note applicable to the schedule of ratings under 38 C.F.R. § 4.88b directs to rate any residual disability of infection within the appropriate body system as indicated by the notes in the evaluation criteria. As applicable, the rater is also directed to consider the long- term health effects potentially associated with infectious disease as listed in 38 C.F.R. § 3.317(d), specifically Brucellosis, Campylobacter jejuni, Coxiella burnetii (Q fever), Malaria, Mycobacterium Tuberculosis, Nontyphoid Salmonella, Shigella, Visceral Leishmaniasis, and West Nile virus. Also, under 38 C.F.R. § 4.88b, is a General Rating Formula for Infectious Diseases. Under this general rating formula, active disease is rated at 100 percent; and then, after active disease has resolved, the disability is rated at 0 percent for infection, and any residual disability of infection should be rated under the appropriate body system. Note 1 of 38 C.F.R. § 4.88b, Diagnostic Code 6316 states that culture, serologic testing, or both must confirm the initial diagnosis and recurrence of active infection. 38 C.F.R. § 4.88b, Diagnostic Code 6316, Note 2 instructs to rate under the appropriate body system any residual disability of infection, which includes, but is not limited to, meningitis, liver, spleen and musculoskeletal conditions. In other words, in order to receive a separate evaluation under the appropriate body system, the evidence must show that there is a residual disability of infection. As such, the Board has considered whether separate compensable ratings are warranted for the Veteran's reported residuals of her service-connected Brucellosis. The Veteran has not had active infection of Brucellosis at any time during the period on appeal. See May 2013 VA Infectious Diseases examination, October 2013 VA Infectious Diseases examination, January 2021 VA Infectious Diseases DBQ December 2021 VA Infectious Diseases DBQ, April 2024 VA Infectious Diseases DBQ, and August 2024 VA addendum medical opinion. As such, a compensable rating is not warranted under 38 C.F.R. § 4.88b, Diagnostic Code 6316 and the General Rating Formula for Infectious Diseases. Fibromyalgia That notwithstanding, the Veteran has been treated for various residuals associated with her service-connected Brucellosis, including widespread musculoskeletal pain, including in the shoulders and hips, diagnosed as chronic pain syndrome (see August 2024, October 2024, February 2025, and August 2025 CAPRI records); headache; fatigue; subjective complaints of depression; gastrointestinal/irritable bowel symptoms; sleep impairment; and cognitive impairments (such as inability to concentrate, forgetfulness, or confusion.) The Board finds that the abovementioned residuals are more appropriately rated under Diagnostic Code 5025, which contemplates fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. Diagnostic Code 5025 specifically contemplates all of the Veteran's current symptoms. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case", and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). The Board finds further that a maximum 40 percent rating is warranted for the Veteran's symptoms under Diagnostic Code 5025. In this regard, Diagnostic Code 5025 provides for a 10 percent rating for fibromyalgia symptoms that require continuous medication for control. A 20 percent rating is warranted for fibromyalgia symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent rating is warranted for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. 38 C.F.R. § 4.71a, Diagnostic Code 5025. The Veteran has reported fibromyalgia-like symptoms, which are constant, and refractory to therapy, throughout the entire period on appeal. In a February 2012 Statement in Support of Claim, she reported knee pain and fatigue associated with her Brucellosis and Lyme disease. In February 2019 correspondence, she reported persistent hip, back, and neck pain associated with her Brucellosis and Lyme disease. During a February 2019 Board hearing, she reported fatigue, back and neck pain, sweats, and chills persisting since her initial diagnosis. At an April 2019 private medical examination, she reported symptoms of chronic fatigue and depression requiring ongoing treatment, as residuals of her Brucellosis. In a February 2020 Statement in Support of Claim, she reported weakness, fevers, and fatigue from Brucellosis. She noted treatment with Tylenol, rest, and prior chemotherapy in 2009, with symptoms persisting since that time. At a January 2021 VA Infectious Diseases examination, she reported fatigue, chills, depression, headaches, and generalized pain. She described treatment with Malarone from 2008 - 2011, IV antibiotics from 2009 - 2011 (discontinued due to allergy), and antidepressants in 2011. At an April 2021 VA CFS examination, she reported fatigue, chills, depression, headaches, and generalized pain. While she indicated that continuous medication was not required for CFS, she acknowledged multiple treatments since her Brucellosis diagnosis in 2009. In a July 2021 statement, she reported using topical medication and NSAIDs to treat back pain, and severe shoulder pain. See July 2021 Correspondence from the Veteran. During her September 2022 Board hearing, the Veteran reported fatigue, headaches, generalized body aches, and chills associated with her Brucellosis, which were the same or worse than when she first filed her initial claim. The aforementioned December 2022 private examiner documented depression, chronic fatigue, headaches, and fibromyalgia linked to Brucellosis since at least December 2011. He noted that the Veteran had been treated aggressively for her infectious diseases since 2008/2009, but she continued to have long-term symptoms. He also noted that she was advised not to continue antibiotic treatment indefinitely because her prolonged, chronic symptoms had persisted. Additionally, the noted the Veteran's reports that her headaches improved when she was taking doxycycline, but would still reoccur. She was also unable to take Motrin or NSAIDs regularly for her severe headaches because of the gastrointestinal side effects. During her December 2022 CFS examination, she reported residual Brucellosis symptoms since her initial diagnosis, including brief fevers, muscle aches, headaches, and depression, noting she self-medicated with acetaminophen and tried various treatments for depression, but she still continued to experience symptoms, including headaches. She also reported going into anaphylaxis shock and being hospitalized and having multiple adverse reactions to medications when initially treated for her Lyme disease and Brucellosis. She reported that she does not tolerate medications very well. At an April 2024 VA Infectious Diseases examination, she reported residual symptoms since 2009 or 2010, including intermittent fever, night sweats, random body pain, including in the shoulders, severe fatigue, and brain fog, treated with antimalarials, antibiotics, and IV therapy (stopped due to allergy). February 2024 VA treatment records indicate she manages chronic shoulder and hip pain with Synthroid, Prilosec, Aleve, Tylenol, and Tums. See August 2025 CAPRI records. Most recently, at a December 2024 VA Infectious Diseases examination, she reported persistent fatigue, joint pain, tingling in the hands, and difficulty concentrating since 2009. She noted treatments with Omega-3 supplements and initiation of an NAD+ oral solution to improve cognitive symptoms. Overall, the Veteran has reported constant or nearly constant symptoms of widespread musculoskeletal pain, fatigue, subjective complaints of depression, headache, gastrointestinal/irritable bowel symptoms, and cognitive impairment related to her service-connected Brucellosis, since as early as 2008 or 2009, which persist despite treatment with numerous medications and therapies. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a maximum 40 percent rating is warranted under Diagnostic Code 5025, for the entire period on appeal. Accordingly, the Board finds that the Veteran's disability most nearly approximates the criteria for a 40 percent rating under Diagnostic Code 5025 for the entire period on appeal. This is the highest rating available under this Diagnostic Code. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Chronic Fatigue Syndrome The Board acknowledges the Veteran's longstanding reports of severe fatigue associated with her service-connected Brucellosis and Lyme disease, as reflected throughout the record. See February 2012 Statement in Support of Claim, May 2013 VA Infectious Diseases DBQ, October 2013 VA Infectious Diseases DBQ, August 2014 NOD, February 2019 Board hearing transcript, April 2019 Report of Independent Medical Opinion, January 2021 VA Infectious Diseases DBQ, April 2021 VA Chronic Fatigue Syndrome (CFS) DBQ, December 2021 VA Infectious Diseases DBQ, September 2022 Board video conference hearing transcript, December 2022 private CFS DBQ, December 2022 Independent Medical Evaluation, April 2024 VA Infectious Diseases DBQ, and December 2024 VA Infectious Diseases DBQ. The evidence includes both VA and private opinions addressing whether the Veteran meets the diagnostic criteria for chronic fatigue syndrome (CFS). On VA CFS examination in April 2021, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of CFS. Although she reported fatigue, headaches, and generalized pain, she denied a reduction in activity level to less than 50 percent of her pre-illness level, denied cognitive impairment attributable to fatigue, and denied periods of incapacitation. The examiner further noted that the reported fatigue did not affect the Veteran's activities of daily living. The Board recognizes that subsequent evidence is more favorable. During the September 2022 Board hearing, the Veteran argued that the VA examiner's findings in April 2021 that she did not have problems with ADLs because of her fatigue were not true. She competently testified that her fatigue significantly interfered with activities of daily living and occupational functioning, noting that she did have problems with ADLs, including making meals and working. She also reported that these symptoms had been the same or worse since her initial claim for service connection. In addition, the Veteran was diagnosed with CFS by private examiners in December 2022, who opined that the Veteran's fatigue had been so severe that it made it difficult for her to keep up with the demands of full-time or part-time employment since at least 2011, with associated symptoms including post-exertional malaise, neuropsychological impairment, sleep disturbance, and periods of incapacitation. See December 2022 private CFS DBQ and December 2022 private Independent Medical Evaluation. However, even assuming, for the sake of argument, that the Veteran meets the diagnostic criteria for CFS, a separate compensable rating under Diagnostic Code 6354 is not warranted. The Veteran's fatigue, post-exertional symptoms, cognitive impairment, headaches, sleep disturbance, and generalized pain are the same symptoms that form the basis of the 40 percent rating assigned herein under Diagnostic Code 5025 for fibromyalgia-like residuals of Brucellosis. Diagnostic Code 5025 expressly contemplates widespread musculoskeletal pain "with or without" associated fatigue, sleep disturbance, headache, depression, irritable bowel symptoms, and cognitive difficulties. Thus, the functional impairment attributed to fatigue has already been fully compensated. Assigning a separate rating under Diagnostic Code 6354 for CFS would therefore compensate the Veteran twice for the same manifestations of disability, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14. The evidence does not demonstrate any distinct symptoms or functional impairment attributable to CFS that are separate and independent from those already contemplated by the Veteran's rating under Diagnostic Code 5025. Accordingly, while the Board does not dispute the severity or chronic nature of the Veteran's fatigue, the symptoms underlying the claimed CFS are not separate from, but rather duplicative of, those already compensated as part of her fibromyalgia-like disability. A separate rating for chronic fatigue syndrome is therefore not warranted. Headache Disability The Veteran has consistently reported headaches as a residual of her service-connected Brucellosis. However, for the reasons discussed below, the Board finds that a separate compensable rating for a headache disability under Diagnostic Code 8100 is not warranted. On VA headache examination in April 2021, the Veteran was diagnosed with headache syndrome. She reported headaches lasting several hours, but less than one day, with associated nausea, blurry vision, and dizziness. Importantly, she specifically denied experiencing characteristic prostrating attacks of headache pain or very prostrating and prolonged attacks productive of severe economic inadaptability. Although she reported missing approximately 2 - 4 weeks of work due to difficulty focusing caused by blurry vision, the examiner did not identify prostrating attacks, as contemplated by Diagnostic Code 8100. The Board acknowledges the Veteran's subsequent testimony during the September 2022 Board hearing that her headaches were more severe than reflected in the April 2021 examination. She credibly reported daily debilitating headaches requiring her to lie down in a dark, quiet room, with associated dizziness and visual disturbance. She also reported significant occupational impairment, including an extended period of unpaid leave (five and a half weeks) and eventual resignation from her job due to her headaches. In addition, a December 2022 private examiner documented chronic, fluctuating headaches since 2009, worsened by stress, associated with impaired concentration, and contributing to overall occupational impairment. Nevertheless, the evidence reflects that the Veteran's headaches are not a distinct disability entity producing separate functional impairment, but rather are a manifestation of the same set of symptoms already compensated under Diagnostic Code 5025. Diagnostic Code 5025 expressly contemplates headache as an associated symptom of fibromyalgia-like disability, along with fatigue, sleep disturbance, cognitive impairment, and widespread musculoskeletal pain. The Veteran's headache symptoms, fluctuating severity, exacerbation with stress, associated cognitive difficulty, and interference with occupational functioning, are the same manifestations relied upon in assigning the maximum 40 percent rating under Diagnostic Code 5025. Further, more recent VA Infectious Diseases examinations obtained pursuant to the Board's August 2023 remand do not reflect ongoing complaints of headaches attributable to Brucellosis, weighing against a finding of a separately ratable headache disorder during the appeal period. Assigning a separate rating under Diagnostic Code 8100 would therefore compensate the Veteran twice for the same manifestations of disability, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14. The record does not demonstrate headache symptomatology resulting in functional impairment that is distinct from, or not already contemplated by, the Veteran's service-connected fibromyalgia-like residuals. Accordingly, while the Board does not question the Veteran's reports of chronic, and at times, severe headaches, a separate compensable rating under Diagnostic Code 8100 is not warranted, as the Veteran's headache symptoms are already fully contemplated and compensated under Diagnostic Code 5025. Depression The Veteran has reported depressive symptoms in connection with her service-connected Brucellosis. However, for the reasons discussed below, the Board finds that a separate compensable rating for depression is not warranted. An April 2019 private medical opinion reflects the Veteran's reports of chronic fatigue and depression requiring ongoing treatment as residuals of Brucellosis. Similarly, at a VA Infectious Diseases examination in January 2021, the Veteran endorsed depression as a residual symptom of her Brucellosis. In December 2022, a private examiner completed a Mental Disorders DBQ and indicated that the Veteran met the DSM-5 criteria for depression, with symptoms including depressed mood, memory impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. However, the examiner did not identify or attach any clinical records, psychological testing, or contemporaneous treatment notes supporting the diagnosis. The DBQ directed the reader to a narrative report, but the associated independent medical evaluation likewise did not include objective findings, mental status examination results, or other documentation demonstrating that the DSM-5 diagnostic criteria were met. As such, the Board finds that the December 2022 private Mental Disorders DBQ is of limited probative value. In contrast, the Veteran underwent a VA Mental Disorders examination in April 2021 conducted by a licensed psychologist. At that time, the Veteran denied current mental health treatment, besides a brief period of martial counseling in 2012, psychiatric medication use, or active psychiatric symptoms. She reported only mild sleep disturbance and occasional bad dreams about her father who was deceased, but denied persistent depressed mood, anxiety, anhedonia, impaired energy, or cognitive difficulties. Mental status examination findings were unremarkable, and the examiner concluded that the Veteran did not meet DSM-5 criteria for any mental disorder, including a depressive disorder. Further, more recent VA Infectious Diseases examinations obtained pursuant to the Board's August 2023 remand do not document complaints or findings of depression associated with Brucellosis. While the Board acknowledges the Veteran's lay assertions regarding depressive symptoms, the presence of psychiatric symptoms alone is insufficient to establish a compensable mental disability. 38?C.F.R. §?4.125?(a) mandates that, for VA purposes, all mental disorder diagnoses must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See?38?C.F.R. §§?3.304?(f), 4.125. VA's regulations in part 4?of?the Code?of?Federal Regulations provide guidance about the interpretation?of?certain types?of?impairments in assessing?disability?and thus may inform whether those impairments can be compensated as?a?disability. The plain language?of?§ 4.130?requires?a?DSM-5?diagnosis?to compensate a psychiatric disability?and that the most reasonable interpretation?of?§ 4.125(a), when read in conjunction with § 4.130,?requires?the same. Martinez-Bodon v. Wilkie, 32?Vet. App.?393 (2020); Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022). In this case, the most probative evidence establishes that the Veteran has not had a DSM-5-compliant diagnosis of depression at any time during the appeal period. The April 2021 VA examination, conducted by a qualified mental health professional and supported by a thorough clinical evaluation, outweighs the unsupported December 2022 private DBQ. Therefore, a separate compensable rating for depression is not warranted. Accordingly, as the evidence does not demonstrate a current, DSM-5-compliant diagnosis of depression during the appeal period, a separate compensable rating for depression as a residual of the Veteran's service-connected Brucellosis is not warranted. 2. Entitlement to a higher initial disability rating for service-connected status post cholecystectomy residuals with GERD, currently rated as noncompensable prior to January 5, 2021, rated at 10 percent from January 5, 2021 through April 21, 2024; and, rated at 30 percent from April 22, 2024. In this case, the Veteran contends that following her gallbladder removal, she began experiencing both GERD and irritable bowel syndrome (IBS) symptoms, with IBS symptoms being more predominant. See September 2022 Board hearing transcript. Essentially, she indicates that due to her service-connected status post cholecystectomy residuals with GERD, she suffers from stabbing pain in her stomach, constant burping, and IBS symptoms, in addition to GERD and reflux symptoms. By way of history, the Veteran filed her initial claim for service connection for "gallbladder removal" in May 2013. See May 2013 Report of General Information. A December 2013 rating decision granted service connection for status post cholecystectomy (claimed as gallbladder removal) with a 0 percent (noncompensable) disability rating, effective May 16, 2013. Analysis The Veteran's service-connected status post cholecystectomy with residuals (post- cholecystectomy syndrome) with GERD is rated as noncompensable under 38 C.F.R. § 4.114 Diagnostic Code 7318 from May 16, 2013; as 10 percent disabling under Diagnostic Codes 7346-7318 from January 5, 2021; and as 30 percent disabling under Diagnostic Codes 7346-7318 from April 22, 2024. Hyphenated diagnostic codes are used when rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 7346 governs evaluations for hernia hiatal, and Diagnostic Code 7318 governs evaluations for removal of the gall bladder. The reviewable evidence in this case includes, but is not limited to, an October 2013 VA Esophageal Conditions DBQ, a September 2014 NOD, a February 2019 Board hearing transcript, a January 2021 VA Gallbladder and Pancreas Conditions DBQ, A December 2021 VA Esophageal Conditions DBQ, a December 2021 VA Gallbladder and Pancreas Conditions DBQ, a September 2022 Board video conference hearing transcript, a December 2022 private Independent Medical Evaluation, April 2024 VA Medical Opinions, an April 2024 VA Gallbladder and Pancreas Conditions DBQ, an April 2024 VA Esophageal Conditions DBQ, a September 2024 VA Addendum Medical Opinion, a November 2024 VA Gallbladder Conditions DBQ, and August 2025 CAPRI records. Period Prior to January 5, 2021 As noted, prior to January 5, 2021, the Veteran was assigned a noncompensable rating under Diagnostic Code 7318 for status post cholecystectomy. Under Diagnostic Code C 7318, a 10 percent rating requires at least mild symptoms resulting from gallbladder removal. During this period, the evidence reflects that the Veteran reported only an inability to tolerate fatty foods due to her cholecystectomy. She specifically denied other associated symptoms and did not require continuous medication for treatment. See October 2013 VA Gallbladder and Pancreas Conditions DBQ. There is no indication of functional impairment or additional symptomatology attributable to the cholecystectomy. Accordingly, the Board finds that the Veteran's status post cholecystectomy was asymptomatic prior to January 5, 2021, and a compensable rating under Diagnostic Code 7318 is not warranted for this period. Additionally, the Veteran had not been diagnosed with gastroesophageal reflux disease (GERD) during this period. Therefore, the rating criteria under Diagnostic Code 7346 are not applicable prior to January 5, 2021. Period from January 5, 2021 through April 21, 2024 As noted above, from January 5, 2021, the Veteran is rated under hyphenated Diagnostic Code 7346 - 7318, reflecting GERD associated with status post cholecystectomy. The RO determined that GERD constituted the predominant disability, consistent with 38 C.F.R. §§ 4.113 and 4.114, which prohibit separate ratings for coexisting digestive disabilities with overlapping symptomatology. However, the Board has considered whether a higher rating is warranted for this period under both diagnostic codes. Diagnostic Code 7318 Under Diagnostic Code 7318, a rating in excess of 10 percent requires severe symptoms due to gallbladder removal. On January 2021 and December 2021 VA Gallbladder and Pancreas Conditions examinations, the Veteran reported mild symptoms, including bloating, burping, gas, acid reflux, chest pressure/heartburn, intermittent abdominal pain, indigestion, and nausea. These symptoms were treated with over-the-counter medications, such as Tums and Zantac, as needed and esomeprazole. The medical evidence does not demonstrate severe symptomatology attributable to the status post cholecystectomy during this period. Therefore, a rating in excess of 10 percent under Diagnostic Code 7318 is not warranted prior to April 22, 2024. Diagnostic Code 7346 Under Diagnostic Code 7346, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health. On October 2013 VA Esophageal Conditions examination, the Veteran reported reflux controlled with Prevacid. On December 2021 VA Esophageal Conditions examination, she reported burping, daily upset stomach, persistent epigastric distress, pyrosis, reflux, regurgitation, substernal shoulder pain, sleep disturbance, and nausea. However, she did not report dysphagia, and the examiner did not find that her symptoms resulted in considerable impairment of health. The record does not otherwise demonstrate that the Veteran's symptoms met all criteria required for a higher rating under Diagnostic Code 7346 during this period. Accordingly, a rating in excess of 10 percent under Diagnostic Code 7346 is not warranted prior to April 22, 2024. Period Beginning April 22, 2024 As noted above, effective April 22, 2024, the Veteran is in receipt of a 30 percent rating for service-connected status post cholecystectomy with GERD. A 30 percent rating is the maximum schedular evaluation available under DC 7318. Under Diagnostic Code 7346, a rating in excess of 30 percent requires symptoms including pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. During this period, the Veteran has continued to report abdominal pain and vomiting associated with her disability. However, the evidence does not show material weight loss, hematemesis, melena, or moderate anemia, nor does it otherwise demonstrate symptomatology resulting in severe impairment of health. See October 2013, January 2021, December 2021, and April 2024 VA Esophageal and Gallbladder/Pancreas Conditions DBQs. Therefore, the criteria for a rating in excess of 30 percent under Diagnostic Code 7346 have not been met as of April 22, 2024. TDIU During the period on appeal, the Veteran reported that her ability to work has been impaired by residuals of service-connected Brucellosis, status post cholecystectomy with GERD, and other service-connected disabilities. See February 2019 Board hearing transcript; January 2021 VA Infectious Diseases DBQ, April 2021 VA Headache Disability DBQ, December 2021 VA Esophageal Conditions DBQ, September 2022 Board video conference hearing transcript; December 2022 private Independent Medical Evaluation; December 2022 private CFS DBQ, and November 2024 VA Gallbladder Conditions DBQ. As such, the evidence of record reasonably raises the issue of entitlement to a TDIU. In Rice v. Shinseki, 22?Vet. App.?447 (2009), the Court held that a TDIU claim is part of an increased rating claim when raised by the record. See also Phillips v. McDonough, 37?Vet. App.?394 (2024) (noting that TDIU is not a separate claim, but is a rating option available whenever a claimant attempts to get service connection or a higher rating from VA and the record includes evidence of unemployability). As such, entitlement for TDIU is also on appeal. A total disability rating may be assigned, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings based on individual unemployability (TDIU) due to service-connected disabilities may be assigned on a schedular basis pursuant to 38 C.F.R. §?4.16(a) where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more, and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), even if the schedular threshold percentage requirements noted above are not met, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason for service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who may be unemployable by reason of service-connected disabilities but who fail to meet the threshold percentage standards set forth in 38 C.F.R. § 4.16(a). Consideration should be given to a veteran's level of education, prior training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Todd v. McDonald, 27?Vet. App.?79, 85-86 (2014). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to obtain and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5?Vet. App.?524, 529 (1993). In determining unemployability, there is an economic component and a non-economic component. Ray v. Wilkie, 31?Vet. App.?58, 66 (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. Ray, 31 Vet. App. at 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. at 73. In addition to considering a veteran's history, education, skills, and training; consideration should be given to 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. Marginal employment shall not be considered substantially gainful employment, and marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and, if applicable, the reason for termination. 38 C.F.R. § 4.16(a). LaBruzza v. McDonough, 37?Vet. App.?111 (2024), held that "employment in a protected environment" means a lower-income position that produces earned annual income that exceeds the poverty threshold, but, due to service-connected disability, is shielded in some respect from competition in the employment market. The phrase "employment in a protected environment" considers receipt of accommodations required by the Americans with Disabilities Act (ADA), which do not shield a person from the competitive labor market; however, accommodations beyond ADA accommodations may be relevant. A TDIU serves an important role in ensuring that Veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a Veteran's disabilities do not result in lost income or where legally required accommodations permit a Veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28?Vet. App.?382 (2017) (Lance, J., concurring) ("Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer."). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU is to be assigned based on the judgment of the rating agency. Floore v. Shinseki, 26?Vet. App.?376, 381 (2013). The Veteran's service-connected fibromyalgia-like symptoms are evaluated as 40 percent disabling from December 1, 2011, with the grant of the separate rating for residuals of service-connected Brucellosis in this decision. Additionally, the Veteran's service-connected status post cholecystectomy with GERD, is evaluated as 0 percent disabling from May 16, 2013, as 10 percent disabling from January 5, 2021, and as 30 percent disabling from April 22, 2024. Other service-connected disabilities include: right lower extremity sciatic radiculopathy, evaluated as 20 percent disabling from July 9, 2021; left lower extremity sciatic radiculopathy, evaluated as 10 percent disabling from December 1, 2011; tinnitus, evaluated as 10 percent disabling from December 1, 2011; degenerative joint disease of the left knee, evaluated as 10 percent disabling from December 1, 2011; degenerative joint disease of the right knee, evaluated as 10 percent disabling from December 1, 2011; Brucellosis, evaluated as 0 percent disabling from December 1, 2011; Lyme disease with residual fatigue, evaluated as 0 percent disabling from December 1, 2011; sinusitis, evaluated as 0 percent disabling from April 28, 2023, a status post cholecystectomy scar, evaluated as 0 percent disabling from May 16, 2013. She now has a combined rating of 60 percent from December 1, 2011 and 70 percent from July 9, 2021. Accordingly, the Veteran currently meets the criteria for schedular consideration of a TDIU since July 9, 2021. 38?C.F.R. §?4.16(a). Turning to the evidence of record, the Veteran has consistently reported that her service-connected conditions have significantly impacted her ability to work. During her January 2021 VA Infectious Diseases examination, she stated that fatigue, headaches, chills, and generalized pain from Brucellosis and Lyme disease caused her to lose up to one week of work, affecting her productivity and concentration. During her April 2021 VA Headache Disability examination, she reported missing two to four weeks of work due to headaches, which also caused blurry vision and difficulty focusing, requiring her to leave work early. By December 2021, she noted that her post-cholecystectomy residuals and GERD impaired her efficiency and concentration, including because she needed to step away from her desk to use the bathroom repeatedly, resulting in up to one week of lost work. See December 2021 VA Esophageal Conditions examination. At her September 2022 Board hearing, she reported missing approximately five and a half weeks of work due to headaches, and alleged that she resigned in 2021 because she could no longer work as a result of her headaches, and stated that she had not worked since February 28, 2022; her previous employment was as a contract analyst earning $100,000 per year. She also reported that she had not worked a full-time or part-time job since February 28, 2022, and that she earned $100,000 a year in her previous employment as a contract analyst for Booze Allen Hamilton, working for the Navy. In December 2022, a private examiner opined that her chronic fatigue, headaches, depression, fibromyalgia-like symptoms, and joint pain made consistent full- or part-time employment difficult, requiring a flexible schedule, frequent breaks, and an ergonomic workstation, as her multiple joint pain requires her to change positions frequently. He concluded that these restrictions would prevent her from performing the exertional and non-exertional demands of her past employment and/or any other full-time or part-time employment on a consistent and routine basis. During her December 2022 private CFS examination, the Veteran reported that she was not able to continue working because she had difficulty concentrating and was making frequent mistakes due to her chronic fatigue. She also alleged that she had taken a sabbatical of 5 weeks from her job the year before, but when she returned to work, she realized that she could not perform her job duties and she had to resign. In her November 2024 VA Gallbladder Conditions DBQ, the Veteran reported that sharp epigastric pain from gallbladder issues prevented her from working, causing up to one week of lost work that year. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). The Board finds that the Veteran's service-connected residuals from Brucellosis and Lyme disease, as well as her status post-cholecystectomy with GERD, cause significant functional and occupational limitations, preventing her from maintaining substantially gainful employment. Specifically, her chronic fatigue, chronic pain syndrome, and headaches significantly impair concentration and performance, increasing the risk of mistakes in occupations such as engineer or analyst. Her headaches are accompanied by blurry vision, dizziness, and head spinning, requiring frequent breaks and extended rest, disrupting the workday. They also pose a significant risk of the Veteran hurting herself in the workplace. Her gastrointestinal symptoms, including diarrhea, necessitate frequent bathroom breaks, further reducing productivity. These limitations make both sedentary and labor-intensive work unmanageable. Overall, the evidence demonstrates that her service-connected conditions have caused substantial interruptions in employment, limited productivity, and an inability to maintain consistent, meaningful work. Based on the evidence noted above, and resolving all reasonable doubt in her favor, the Board finds that the Veteran's service-connected disabilities and their residuals, collectively, preclude her from securing or maintaining substantially gainful employment, and the criteria for entitlement to a TDIU are met. TDIU has been awarded based on the Veteran's combined service-connected disabilities. The evidence does not show that any single disability would warrant a TDIU. An award of a TDIU based on the combined effects for multiple disabilities cannot be used to satisfy the requirement of a single disability rated as totally disabling. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.