08-02 804

Citation Nr: 1008504
Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 08-02 804 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota

THE ISSUES

1. Entitlement to an increased rating for dysthymic
disorder, currently rated 50 percent disabling.

2. Entitlement to an increased rating for spina bifida
occulta with discogenic low back pain and lumbosacral strain,
currently rated 20 percent disabling.

3. Entitlement to an increased rating for irritable bowel
syndrome, currently rated 0 percent disabling.

4. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disability (TDIU).

REPRESENTATION

Appellant represented by: Allan T. Fenley, Attorney at
law

ATTORNEY FOR THE BOARD

W. Harryman, Counsel

INTRODUCTION

The Veteran had active duty from March 1990 to January 1996.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2007 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Ft. Harrison, Montana. The case was later transferred to the
RO in Fargo, North Dakota.

The issues concerning an increased rating for dysthymic
disorder and a TDIU being remanded are addressed in the
REMAND portion of the decision below and are REMANDED to the
Department of Veterans Affairs Regional Office.

FINDINGS OF FACT

1. The Veteran's service-connected spina bifida occulta with
discogenic low back pain and lumbosacral strain has been
manifest throughout the appeal period by limitation of
forward flexion of the thoracolumbar spine to no less than 60
degrees; ankylosis of the entire thoracolumbar spine has not
been shown.

2. Irritable bowel syndrome has been manifest throughout the
appeal period by not more than mild disturbances of bowel
function with occasional episodes of abdominal distress.

CONCLUSIONS OF LAW

1. The criteria are not met for a rating greater than 20
percent for spina bifida occulta with discogenic low back
pain and lumbosacral strain. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59,
and 4.71a, Code 5242 (2009).

2. The criteria are not met for a compensable rating for
irritable bowel syndrome. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Code 7319
(2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to notify and to assist

Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. §
3.159 (2009). See also Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).

In the instant case, the Veteran received proper notification
prior to the initial unfavorable decision in August 2007.
The RO's January 2007 notice letter advised the Veteran what
information and evidence was needed to substantiate the
claims decided herein and what information and evidence must
be submitted by him, namely, any additional evidence and
argument concerning the claimed conditions and enough
information for the RO to request records from the sources
identified by the Veteran. He was specifically told that it
was his responsibility to support the claims with appropriate
evidence. Finally the letter advised him what information
and evidence would be obtained by VA, namely, records like
medical records, employment records, and records from other
Federal agencies. The duty to notify the Veteran was
satisfied under the circumstances of this case. 38 U.S.C.A.
§ 5103.

VA must also make reasonable efforts to assist the appellant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009).

Service treatment records are associated with claims file.
Post-service treatment records and reports from various VA
Medical Centers have also been obtained. A decision from the
Social Security Administration and the records it considered
in support of its decision are on file. The Veteran has not
identified any additional records that should be obtained
prior to a Board decision. Therefore, VA's duty to further
assist the Veteran in locating additional records has been
satisfied.

The Veteran was afforded a VA examination for his
gastrointestinal and low back spine disabilities February
2007. There is no objective evidence indicating that there
has been a material change in the severity of the Veteran's
spina bifida occulta or irritable bowel syndrome since he was
last examined. See 38 C.F.R. § 3.327(a) (2009). The duty to
assist does not require that a claim be remanded solely
because of the passage of time since an otherwise adequate
examination was conducted. VAOPGCPREC 11-95.

The Veteran's attorney contended generally in the September
2007 notice of disagreement that VA failed to provide
adequate medical examinations to assess his disabilities.
The attorney did not provide any rationale to support that
argument, however. The Veteran was also afforded a VA
compensation examination in February 2007 and a VA Gulf War
examination in August 2007. The Board finds both examination
reports to be thorough, complete, and adequate upon which to
base a decision with regard to this claim. The VA examiners
reported the Veteran's symptoms and current clinical findings
in detail. They had an opportunity to personally interview
and examine the Veteran, and their reports provide the
information necessary to evaluate the Veteran's disabilities
under the applicable rating criteria. The February 2007 and
August 2007 examination reports are deemed adequate for
rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312
(2007).

In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the Veteran in developing
the facts pertinent to the issues on appeal is required to
comply with the duty to assist. 38 U.S.C.A. §§ 5103 and
5103A; 38 C.F.R. § 3.159.

II. Law and regulations

Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
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
for that rating. 38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential
to trace the medical history of the Veteran. 38 C.F.R. §§
4.1, 4.2, 4.41. Consideration of the whole-recorded history
is necessary so that a rating may accurately reflect the
elements of disability present. 38 C.F.R. § 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991). Where a veteran appeals
the denial of a claim for an increased disability rating for
a disability for which service connection was in effect
before he filed the claim for increase, the present level of
the veteran's disability is the primary concern, and past
medical reports should not be given precedence over current
medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58
(1994). However, where VA's adjudication of the claim for
increase is lengthy and factual findings show distinct time
periods where the service-connected disability exhibits
symptoms which would warrant different ratings, different or
"staged" ratings may be assigned for such different periods
of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510
(2007).

The assignment of a particular diagnostic code is
"completely dependent on the facts of a particular case."
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, the
diagnosis and demonstrated symptomatology. Any change in a
diagnostic code by a VA adjudicator must be specifically
explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629
(1992).

Spina bifida, discogenic low back pain, and lumbosacral
strain

Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage
and the functional loss with respect to all of these
elements. In evaluating disabilities of the musculoskeletal
system, it is necessary to consider, along with the schedular
criteria, functional loss due to flare-ups of pain,
fatigability, incoordination, pain on movement, and weakness.
DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss
may be due to absence of part, or all, of the necessary
bones, joints and muscles, or associated innervations, or
other pathology and evidenced by visible behavior of the
claimant undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
Pain on movement, swelling, deformity or atrophy of disuse as
well as instability of station, disturbance of locomotion,
interference with sitting, standing and weight bearing are
relevant considerations for determination of joint
disabilities. 38 C.F.R. § 4.45. Painful, unstable, or
misaligned joints due to a healed injury are entitled to at
least the minimal compensable rating for the joint. 38
C.F.R. § 4.59.

Under the General Rating Formula for Diseases and Injuries of
the Spine, which applies to disabilities rated under Code
5242 (degenerative arthritis of the spine), a 40 percent
rating requires limitation of forward flexion of the
thoracolumbar spine to 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine.

Note (1) to Diagnostic Code 5242 advises to evaluate any
associated objective neurologic abnormalities, including, but
not limited to, bowel or bladder impairment, separately under
an appropriate diagnostic code.

Note (5) states that, for VA compensation purposes,
unfavorable ankylosis is a condition in which the entire
cervical spine, the entire thoracolumbar spine, or the entire
spine is fixed in flexion or extension, and the ankylosis
results in one or more of the following: difficulty walking
because of a limited line of vision; restricted opening of
the mouth and chewing; breathing limited to diaphragmatic
respiration; gastrointestinal symptoms due to pressure of the
costal margin on the abdomen; dyspnea or dysphagia;
atlantoaxial or cervical subluxation or dislocation; or
neurologic symptoms due to nerve root stretching. Fixation
of a spinal segment in neutral position (zero degrees) always
represents favorable ankylosis.

In addition, the Formula for Rating Intervertebral Disc
Syndrome (IVDS) Based on Incapacitating Episodes, is
applicable to the Veteran's degenerative disc disease of the
cervical and lumbar spine, rated under Code 5243. Under that
formula, a percent disability rating for IVDS with
incapacitating episodes is warranted when the total duration
of at least one week but less than 2 weeks during the past
12 months; a 20 percent disability rating for IVDS with
incapacitating episodes is warranted when the total duration
of at least 2 weeks but less than 4 weeks during the past 12
months; a 40 percent disability rating for IVDS with
incapacitating episodes is warranted when the total duration
of at least 4 weeks but less than 6 weeks during the past 12
months; and a 60 percent disability rating for IVDS with
incapacitating episodes is warranted when the total duration
is at least 6 weeks during the past 12 months.

Note (1) to Diagnostic Code 5243 provides that, for purposes
of ratings under Code 5243, an incapacitating episode is a
period of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician.

Note (2) provides that, if IVDS is present in more than one
spinal segment, provided that the effects in each spinal
segment are clearly distinct, each segment is to be rated on
the basis of incapacitating episodes or under the General
Rating Formula for Diseases and Injuries of the Spine,
whichever method results in a higher evaluation for that
segment.

Irritable bowel syndrome

A zero percent rating is assigned for mild disturbances of
bowel function with occasional episodes of abdominal
distress. Moderate disability due to irritable bowel
syndrome manifested by frequent episodes of bowel disturbance
with abdominal distress warrants a 10 percent disability
rating. A 30 percent rating for irritable bowel syndrome
requires severe disability manifested by diarrhea or
alternating diarrhea and constipation with more or less
constant abdominal distress. 38 C.F.R. § 4.114, Code 7319.

III. Analysis

Spina bifida, discogenic low back pain, and lumbosacral
strain

In January 2007, the Veteran's attorney wrote that the
Veteran was seeking an increased rating in his service-
connected disabilities, indicating that each of the
disabilities had become more severe. A 20 percent rating is
currently in effect for the Veteran's service-connected low
back disability.

VA clinic records dated from May 2006 through March 2009
reflect the Veteran's periodic complaints of chronic low back
pain. One note in November 2007 indicates that he underwent
an epidural block in October 2007, and that his low back pain
had subsequently shown significant improvement, although the
pain had recently started increasing again.

A VA compensation examiner in February 2007 noted the
Veteran's complaint that "my whole spine seems to hurt" and
that "my whole spine feels like something is grabbing
(spine) and twisting it," with the pain intensity varying
from 7-10/10. the Veteran indicated that the pain was worse
with heavy lifting, walking, and working, and was helped by
hot baths, heating pad, massage, sports cremes, and
stretching. He denied any other pain or radiation,
paresthesia, weakness, bowel or bladder complaints.

The examiner stated that the Veteran could not relate any
changes of pain or other symptoms over the previous several
years. The Veteran stated that he would get "used to [the
pain] after awhile" and that "I really don't pay that much
attention to it anymore." He indicated that he would use a
cane whenever he would leave the house, typically once a day,
and that he could walk 2-3 blocks. The Veteran stated that
he could manage his activities of daily living and normal
household duties, but could not work, since he couldn't do
any heavy lifting or walk long distances. On examination,
there was no spinal deformity or asymmetry, muscle spasm,
tenderness to palpation, heat, redness, or swelling. There
was no evidence of abnormal weight-bearing. The examiner
indicated that inspection of the tip of the Veteran's cane
revealed almost no wear. Tested range of motion of the
thoracolumbar spine revealed forward flexion to 30 degrees,
extension to 30 degrees, lateral flexion to 20 degrees
bilaterally, and lateral rotation to 30 degrees bilaterally.
The Veteran reported that pain began at the stated limits of
range of motion. The examiner noted that, while sitting in
the examination room and other topics were being discussed,
the Veteran was noted to spontaneously flex forward as much
as 90 degrees without apparent pain or difficulty. There was
no evidence of increased pain, fatigue, weakness, lack of
endurance, or incoordination on repeated use, and no change
in range of motion. The examiner stated that there was no
objective or clinical evidence of additional limitation due
to claimed flare-ups beyond the measured and reported ranges.

The Veteran reported to an August 2007 VA compensation
examiner that he had generalized muscle pain "from my feet
to the top of my head" since his separation from service.
He indicated that he could not work because of the pain and
because he had difficulty sitting/standing more than 30-60
minutes or walking more than a couple blocks. The Veteran
reported that he had had no specific evaluations or
treatment. No lower extremity neurological complaints were
voiced. The examiner noted only that range of motion testing
was without pain or crepitation. She stated, however, that
the Veteran was able to squat to the ground and could duck
walk and recover. No abnormal neurological clinical findings
were recorded. The examiner indicated that she found no
objective evidence of low back pain, lumbosacral strain, or
any sequelae of spina bifida occulta. There were no clinical
findings to support the Veteran's claim of severe and unusual
daily low back pain and bilateral lower extremity symptoms.
The examiner stated that she found no objective findings that
would indicate that the Veteran was disabled by low back
pain, that he was unemployable, or that his low back
disability had become more severe over time. She further
commented that the Veteran's subjective history was vague and
inconsistent, and on multiple occasions during the interview
and examination that his response changed when a question was
repeated later.

At the time of an October 2008 VA compensation examination,
the Veteran again described his low back pain as constant,
with an intensity of 7/10. He indicated that flares would be
precipitated by sneezing and lifting, although he could not
say how much he could lift. The Veteran described the pain
during a flare as 9/10, with a variable duration. He
indicated that hydrocodone provided good relief. The Veteran
denied any associated symptoms of numbness, weakness, bladder
complaints, bowel complaints due to the low back pain, or
erectile dysfunction. The examiner stated that the Veteran
presented with a walking stick in hand, but noted that he was
able to walk safely without the benefit of the cane. The
Veteran reported that he could walk two blocks, and could
stand for 15 minutes, sit 20 minutes; he denied any problem
with balance or frequent falls. The examiner noted that
there was no report of any incapacitating events in the
previous 12 months.

The examiner indicated that the Veteran presented leaning
heavily on a walking stick, although during the examination
his gait was even, his posture was erect, and his ambulation
balance was steady. The Veteran was able to sit comfortably
during the 30 minute examination, with few position changes
for comfort. The examiner stated that range of motion
measurements failed to match the known pathology. The
Veteran demonstrated forward flexion to 30 degrees, but he
was later able to bend over to put on his socks. The
examiner also noted that seated straight leg raise testing
yielded no complaints of pain. She indicated that, based on
that information, she estimated the Veteran's true forward
flexion to be 65-70 degrees at a minimum, extension to 30
degrees with pain, left lateral flexion to 30 degrees without
pain, right lateral flexion to 25 degrees with pain, and
lateral rotation to 30 degrees bilaterally without pain. The
examiner stated that range of motion was partially limited by
complaints of pain, but that there was no objective evidence
of fatigue, spasms, weakness, or lack of endurance following
repetitive use. She indicated that complaints of fatigue,
weakness, and lack of endurance did not limit spine function
any further than previously documented. There was no
clinical or objective evidence of additional limitation due
to claimed flare-ups beyond the measured and reported range.
The Veteran also complained of localized tenderness on
palpation of the low back and sacroiliac joints. But there
was no guarding, and spinal contour was normal. Straight leg
raise testing was negative. The neurological examination was
essentially normal. Moreover, the examiner noted that the
Veteran demonstrated good coordination during heel/toe and
tandem walking, and was able to stand on one leg (right and
left) while doing shallow knee bends, all without the use of
his cane. The examiner's assessment was of mild degenerative
joint disease and minimal degenerative disc disease of the
lumbar spine that was unchanged since 2004.

Because the record shows that the Veteran has not experienced
any incapacitating episodes due to the low back disability, a
separate rating under Code 5243 is not warranted. Similarly,
because no examiner has reported any associated objective
neurologic abnormalities, including bowel or bladder
impairment, that are due to the low back disability, a
separate rating is also not warranted on that basis.

The Board observes that both the February 2007 and October
2008 VA compensation examiners initially reported measured
forward flexion of the thoracolumbar spine to 30 degrees, at
which point he complained of pain. However, both examiners
also noted that, during other parts of the interview, the
Veteran was able to flex much farther without difficulty or
evidence of pain. Both of those examiners, as well as the
August 2007 VA examiner, clearly seemed to indicate that the
observed clinical findings did not support the Veteran's
claim of severe low back pain. They felt that the amount of
pain reported by the Veteran was out of proportion to the
documented pathology. Put another way, all three examiners
observed the Veteran to be exaggerating his symptoms during
his physical examinations. He is being disingenuous during
his examinations. The Board therefore chooses to focus on
the range of motion findings that were casually observed or
estimated as the true indication of his level disability.

Because the February 2007 examiner noted that the Veteran was
observed to flex as much as 90 degrees without pain and
because the October 2008 examiner estimated the Veteran's
true forward flexion to at least 65-70 degrees, the Board
finds that the criteria are not met for a 40 percent rating
under the provisions of the General Rating Formula.

In addition, both the February 2007 and October 2008
examiners stated that there was no objective evidence of
increased limitation of motion or function on repeated use or
during flare-ups. Accordingly, no higher rating is warranted
on that basis. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca
v. Brown, 8 Vet. App. 202 (1995).

For all the foregoing reasons, the claim for an increased
rating for spina bifida occulta with discogenic low back pain
and lumbosacral strain must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the appellant's claim, that
doctrine is not applicable in the current appeal. 38
U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Irritable bowel syndrome

In January 2007, the Veteran's attorney wrote that the
Veteran was seeking an increased rating in his service-
connected disabilities, indicating that each of the
disabilities had become more severe. A zero percent rating
is currently in effect for the service-connected irritable
bowel syndrome.

VA clinic records dated from May 2006 through March 2009 are
generally silent for any complaints referable to irritable
bowel syndrome. A report in November 2007 noted that the
Veteran had had some diarrhea on several occasions. However,
the diarrhea had disappeared after he stopping taking
Cymbalta, a psychotropic medication.

The Veteran reported to the February 2007 VA examiner that he
had constant diarrhea ("loose stools) daily, two to three
times per day, with occasional urgency. He stated that he
felt like he may be "leaking" between bowel movements. He
denied using pads or absorbent pants. The Veteran reported
that he had epigastric pain lasting seconds three times a
month or less, but he denied any other abdominal or pelvic
pain. He denied passing any mucus or blood. The Veteran did
not indicate that the disability had any effect on his daily
activities. On examination, bowel sounds were normal.
Epigastric tenderness was noted, but the abdomen was
otherwise nontender to palpation and percussion. Rectal
sphincter tone was normal and the perianal skin was entirely
normal, with no dermatitis or irritation or other evidence of
incontinence or chronic diarrhea. The examiner stated that
she found no objective evidence of irritable bowel syndrome,
reported diarrhea or associated fecal incontinence. She
added that, although the Veteran had a history of epigastric
pain most likely to due his non-service-connected
gastroesophageal reflux disease (GERD), irritable bowel
syndrome tends to present with lower abdominal tenderness.
The examiner stated that she found no objective findings that
would indicate that the Veteran was disabled by a bowel
condition, that he was unemployable, or that his bowel
disability had become more severe over time.

The August 2007 VA examiner noted that the Veteran denied any
melena, constipation, or diarrhea. She noted his previous
diagnosis with GERD, with epigastric pain and treatment with
Prilosec. On examination, the abdomen was nontender; no
abnormal clinical findings were noted. The examiner's
assessment did not include irritable bowel syndrome.

The October 2008 VA compensation examiner noted that the
Veteran couldn't say if he had lost any weight. There was no
reported nausea or vomiting. The Veteran indicated that he
had intermittent constipation when on narcotics for a long
period. When asked if he ever had a normal stool, he
replied, "I guess maybe once a week." He claimed diarrhea,
but couldn't say how often during the day, noting that it was
"variable." When asked whether he experienced incontinence
episodes, he indicated that he did, and when asked how often,
he couldn't say, maybe five times a month. The Veteran
denied using pads and denied receiving any treatment for his
claimed chronic diarrhea. When asked if he ever had
abdominal pain, distress, or cramps, he replied,
"sometimes." On examination, there was no evidence of
malnutrition or other debility. The Veteran weighed 202
pounds; there was no evidence of weight loss. Bowel sounds
were not hyperactive. There were no anal fissures, fistulas,
hemorrhoids, or lesions in the perianal area. Sphincter tone
was good; the rectal wall was smooth and nontender. The
examiner noted that, of 255 entries in VA medical records,
only two referred to diarrhea, and the only two notations of
irritable bowel syndrome were the last two compensation
examinations where irritable bowel syndrome was claimed.

Although the Veteran has claimed that he has chronic
diarrhea, up to three times per day, there is no evidence
that he had ever received any treatment for chronic diarrhea.
Nor is there any medical evidence of residuals of chronic
diarrhea, such as weight loss or malnutrition. Moreover,
each of the VA compensation examiners noted that there was no
clinical evidence of any anal irritation, as would be
expected in the case of chronic diarrhea. Further, the
Veteran denied any other abdominal complaints, and the
examiners also noted the absence of lower abdominal
tenderness, as would be expected in irritable bowel syndrome.
Indeed, given his proclivity to exaggerate his symptoms
during his orthopedic examination, the Board has little doubt
that the Veteran exaggerates his irritable bowel syndrome
symptoms as well. Simply put, when considering the
essentially asymptomatic findings of the examinations and
virtually silent outpatient treatment records, the Board does
not the Veteran to be truthful in his complaints.

Accordingly, as suggested by the comments of each of the VA
compensation examiners, the Board finds the Veteran's reports
of chronic severe diarrhea not to be credible. There is no
objective evidence of more than mild disability due to
irritable bowel syndrome at any time during the appeal period
as to warrant a 10 percent disability rating.

For all the foregoing reasons, the claim for an increased
rating for irritable bowel syndrome must be denied. In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the
appellant's claim, that doctrine is not applicable in the
current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519
(1996).

Extraschedular consideration

In denying the claim for higher ratings, the Board also has
considered whether the veteran is entitled to a greater level
of compensation on an extra-schedular basis. Ordinarily, the
VA Schedule will apply unless there are exceptional or
unusual factors which would render application of the
schedule impractical. See Fisher v. Principi, 4 Vet. App.
57, 60 (1993).

According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1) (2009). An
exceptional case is said to include such factors as marked
interference with employment or frequent periods of
hospitalization as to render impracticable the application of
the regular schedular standards. See Fanning v. Brown, 4
Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a veteran is entitled to
an extraschedular rating. First, the Board must first
determine whether the evidence presents such an exceptional
disability picture that the available schedular evaluations
for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology and is
found inadequate, the Board must determine whether the
claimant's disability picture exhibits other related factors
such as those provided by the regulation as "governing
norms." Third, if the rating schedule is inadequate to
evaluate a veteran's disability picture and that picture has
attendant thereto related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service to
determine whether, to accord justice, the Veteran's
disability picture requires the assignment of an
extraschedular rating.

With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected low back disability or irritable bowel syndrome is
inadequate. A comparison between the level of severity and
symptomatology of the Veteran's low back disability and
irritable bowel syndrome with the established criteria found
in the rating schedule shows that the rating criteria
reasonably describe the Veteran's disability level and
symptomatology.

The Board further observes that, even if the available
schedular evaluation for the disability is inadequate (which
it manifestly is not), the Veteran does not exhibit other
related factors such as those provided by the regulation as
"governing norms." The record does not show that the
Veteran has required frequent hospitalizations for his back
or bowel disabilities. Indeed, it does not appear from the
record that he has been hospitalized at all for those
disabilities. Additionally, there is not shown to be
evidence of marked interference with employment due to those
disabilities. The record does show that the Veteran has been
found to be totally disabled by the Social Security
Administration (SSA), due to the effects of chronic pain
syndrome, status post right shoulder rotator cuff repair,
bipolar disorder, a generalized anxiety disorder, and
posttraumatic stress disorder. The SSA decision notes,
however, that the Veteran's mental condition appeared to be
the source of his most serious and debilitating limitations.
There is nothing in the record which suggests that the
disabilities of the low back and bowel in and of themselves
markedly impacted his ability to perform his job. Moreover,
there is no evidence in the medical records of an exceptional
or unusual clinical picture.

In short, there is nothing in the record to indicate that the
service-connected disabilities on appeal cause impairment
with employment over and above that which is contemplated in
the assigned schedular ratings. See Van Hoose v. Brown, 4
Vet. App. 361, 363 (1993) [noting that the disability rating
itself is recognition that industrial capabilities are
impaired]. The Board therefore has determined that referral
of this case for extra-schedular consideration pursuant to 38
C.F.R. 3.321(b)(1) is not warranted.

ORDER

An increased rating for spina bifida occulta, currently rated
20 percent disabling, is denied.

An increased rating for irritable bowel syndrome, currently
rated 0 percent disabling, is denied.

REMAND

In October 2008, the Veteran was afforded a VA compensation
examination regarding his service-connected dysthymic
disorder. That examiner, who had previously examined the
Veteran for VA compensation purposes in September 2006 and
January 2007, noted that there "appear[s] to be a number of
different diagnoses suggested by different examining and
treating sources," including bipolar II disorder,
posttraumatic stress disorder (PTSD), and generalized anxiety
disorder. The examiner indicated that those diagnoses did
not appear to be supported by current signs and symptoms. He
noted, however, that the Veteran had significant
medical/physical complaints and that it was difficult to
ascertain the degree to which his daily functioning was
limited based solely on psychological factors. The examiner
stated that the Veteran presented with a complex clinical
picture and that, given the complexities of his complaints,
as well as some conflict in the records, he suggested that an
examination be conducted by a board of three examiners to
resolve these conflicts. The examiner noted that the Veteran
concurred with the suggestion and agreed to comply with
another examination.

The record indicates that a psychiatric examination by a
board of three examiners was scheduled in June 2009.
However, the Veteran canceled the examination, requesting
that the location be transferred; he had apparently moved
from Montana to North Dakota. In July 2009, the Veteran's
file was transferred to the Fargo, North Dakota, RO, with the
notation that an examination was needed. The record does not
reflect that an examination by a board of three examiners has
been rescheduled.

In light of the statements by the October 2008 VA examiner,
the Board finds that VA's duty to assist requires that
another examination be scheduled. See 38 C.F.R.
§ 3.159(c)(4) (2009).

The Court has held that when a determination on one issue
could have a significant impact on the outcome of another
issue, such issues are considered inextricably intertwined
and VA is required to decide those issues together. Harris
v. Derwinski, 1 Vet. App. 180 (1991). The claim of
entitlement to a TDIU requires consideration of the effect on
employability of all service-connected disabilities. The
determination regarding the remanded issue of entitlement to
an increased rating for the Veteran's service-connected
dysthymic disorder could impact the Veteran's TDIU claim.
See also Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The
Board therefore finds these issues to be inextricably
intertwined.

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a
psychiatric examination by a board of
three examiners. The claims file,
including a copy of this remand, must be
reviewed by the examiners in conjunction
with their examination. All testing
found to be necessary by the examiners
should be completed. The examiners'
report should set forth in detail all
current psychiatric symptoms, clinical
findings, and diagnoses. Ask the
examiners to provide the following
medical opinions:

a. For any diagnosis other than
dysthymic disorder (for which
service connection has been
established), indicate whether that
diagnosis represents a progression
of the prior diagnosis, a correction
of an error in the prior diagnosis,
or the development a new and
separate condition.

b. For any disorder which is felt
to constitute a new and separate
condition, indicate the likelihood
(i.e., 50 percent probability or
greater) that that disorder is due
to service or to a service-connected
disability.

c. Describe the effects that the
service-connected psychiatric
disability(ies) have on the
Veteran's daily activities and on
his ability to work.

All opinions should be supported by
adequate rationale.

2. Upon completion of the requested
development, again consider the Veteran's
claims for an increased rating for his
dysthymic disorder and for a TDIU. If
the claims are not granted to his
satisfaction, furnish the Veteran and his
attorney with a supplemental statement of
the case (SSOC) and give them an
opportunity to respond before returning
the case to the Board.

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs