Citation Nr: 0812331 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 03-20 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to an initial rating higher than 20 percent for a left shoulder disability. 3. Entitlement to an initial rating higher than 10 percent for a right shoulder disability. 4. Entitlement to an initial rating higher than 10 percent for a right ankle disability. 5. Entitlement to an initial compensable rating for residuals of the resection of the proximal phalanx of the left fifth toe. REPRESENTATION The veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. A. Mishalanie, Counsel INTRODUCTION The veteran served on active duty in the military from October 1979 to October 2001. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2001 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for bilateral knee and thoracic spine disabilities, but granted service connection for right and left shoulder, right ankle, and left fifth toe disabilities. The RO assigned a 10 percent rating for degenerative arthritis of right ankle and bilateral shoulders, and a 0 percent rating for the left fifth toe. In October 2004, the RO granted separate ratings for each shoulder and the right ankle effective from November 2001. The RO assigned a 20 percent rating for the left shoulder, a 0 percent rating for the right shoulder, and a 10 percent rating for the right ankle. In August 2001, the rating for the right shoulder was increased to 10 percent effective from November 2001. The veteran has continued the appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise). In July 2005, the veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. In December 2005, the Board remanded the claims to the Appeals Management Center (AMC) for additional development. Prior to returning this case to the Board, in an August 2007 rating decision, the AMC granted the claim for service connection for a thoracic spine disability. That decision is considered a full grant of the benefits requested. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (increased rating issues are separate from service connection issues). Accordingly, this claim is no longer before the Board. FINDINGS OF FACT 1. The medical evidence of record indicates the veteran's bilateral knee disability is not related to his military service and did not manifest to a compensable degree within one year following his separation from service. 2. X-rays taken in May 2001 confirmed degenerative joint disease (DJD) of the acromioclavicular joint of the left shoulder; in February 2004, flexion and abduction were limited to 40 degrees; in August 2006, active flexion was limited to 90 degrees (passive flexion to 110 degrees) and active abduction was limited to 70 degrees (passive abduction to 102 degrees). 3. X-rays taken in May 2001 confirmed DJD of the acromioclavicular joint of the right shoulder; in August 2006, range of motion was pain-free to 170 degrees of flexion and abduction. 4. X-rays taken in May 2001 confirmed DJD in the tibiotalar joint of the right ankle; in September 2002, range of motion was from 20 degrees of dorsiflexion to 40 degrees of plantar flexion; in August 2006, range of motion was from 10 degrees of dorsiflexion to 26 degrees of plantar flexion. 5. The veteran underwent surgical resection of the proximal phalanx of the left fifth toe to correct an abducto varus rotation; post-surgery, he has a well-healed scar of the left fifth toe and a moderate hammertoe deformity that is painful when he wears shoes but does not result in an abnormal gait. CONCLUSIONS OF LAW 1. The veteran's bilateral knee disability was not incurred or aggravated during service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.307, 3.309 (2007). 2. The criteria are not met for an initial rating higher than 20 percent for a left shoulder disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes (DCs) 5003, 5201 (2007). 3. The criteria are not met for an initial rating higher than 10 percent for a right shoulder disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, DCs 5003, 5201. 4. The criteria are not met for an initial rating higher than 10 percent for a right ankle disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, DCs 5003, 5271 (2007). 5. The criteria are not met for a compensable initial rating for residuals of the resection of the proximal phalanx of the left fifth toe. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.68, 4.71a, DCs 5172, 5282, 5283, 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Pursuant to the VCAA, upon receipt of complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). With regard to the veteran's claim for service connection for a bilateral knee disability, he was sent VCAA notice letters in March and December 2005. The letters provided him with notice of the evidence necessary to substantiate his claim, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The letters also specifically requested that he submit any evidence in his possession pertaining to his claims. Thus, the content of the letter provided satisfactory VCAA notice in accordance with § 5103(a) and § 3.159(b)(1) as specified in Pelegrini II. With regard to the initial ratings for right and left shoulder, right ankle, and left fifth toe disabilities, this appeal arises from disagreement with the initial evaluation following the grant of service connection. In a precedent decision issued during the pendency of this appeal, on March 3, 2006, the U.S. Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-486 (2006). The Court indicated that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated - it has been proven." The Court further held that when a claim has been proven, the purpose of section 5103(a) has been satisfied and notice under its provision is no longer applicable. In an even more recent precedent case, the Court pointed out an important distinction between a situation like in Dingess where the RO granted service connection and assigned an initial disability rating and effective date prior to the enactment of the VCAA in November 2000, versus granting service connection and assigning an initial disability rating and effective after the passage of the VCAA. See Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007). In the latter situation, the Court clarified that under § 5103(a) the veteran is entitled to VCAA notice - before deciding the claim, addressing all five of the Dingess elements of the claim, so including the downstream degree-of-disability and effective date elements. Furthermore, where VA did not provide this pre-decisional notice addressing all elements of the claim, there needs to be a discussion of whether this was prejudicial to the veteran. The Court went on to indicate in Dunlap that a procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regulatory provision was designed to protect. Such an error affects the essential fairness of the adjudication. Therefore, in order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. In other words, the Court must be persuaded that the error did not render the claimant without a meaningful opportunity to participate effectively in the processing of his or her claim. With respect to notice errors, the burden is generally on the claimant to assert with specificity how she or he was prejudiced by any notification error. For notice errors involving the first element - notification as to the evidence or information necessary to substantiate a claim - such errors are presumptively prejudicial and the burden is on the Secretary of VA to demonstrate there was no error or that the appellant was not prejudiced by any failure to give notice as to this element. However, in those situations where a first element notice error occurs and the claim is subsequently substantiated, i.e., service connection is awarded, and an initial rating and effective date are assigned, the Court holds that it will not presume prejudice. In these types of situations, the burden will be on the appellant to demonstrate how the notification error affected the essential fairness of the adjudication. Only then will the Secretary of VA have the burden of demonstrating no prejudice. The circumstances of this particular case are like those in Dunlap, not Dingess, since the RO granted service connection in October 2001- so after the enactment of the VCAA in November 2000. VCAA notice was provided in March and December 2005. The claims were readjudicated in an August 2007 supplemental statement of the case (SSOC) based on any evidence that had been received since the initial October 2001 rating decision at issue and the April 2003 statement of the case (SOC). So although he did not receive VCAA notice prior to the initial adjudication of his claims, this timing error since has been rectified such that it is not prejudicial. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328 (Fed. Cir. 2006), affirmed, No. 02-1077 (December 21, 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Furthermore, with regard to the initial evaluations, the veteran demonstrated actual knowledge of applicable DCs in the February 2008 Appellant's Post-Remand Brief. At the July 2005 hearing, he provided testimony as to the effect his service-connected disabilities had on his employment and daily life. Therefore, the Board finds that any notice deficiency with regard to the initial evaluations did not affect the essential fairness of the adjudication. In developing his claims, VA obtained the veteran's service treatment records. He also submitted records from Moncreif Army Hospital. In addition, VA examinations were provided in September 2002, February 2004, and August 2006, and a VA medical opinion was obtained in July 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no reported evidence that has not been obtained. No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claims. Service Connection for a Bilateral Knee Disability Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption, however, is rebuttable by probative evidence to the contrary. The veteran's service treatment records indicate he complained of right knee tenderness in June 1982 after a football injury. The patella was tender, but there were no ligament tears or ruptures. In February 1984, he injured the same knee playing basketball. The X-ray was within normal limits and the diagnosis was a contusion. In September 1985, he hit his right knee on the end of a bed and sustained a contusion. In March 1989, he complained of right knee pain after playing basketball; the diagnosis was patella femoral contusion. The veteran's treatment records indicate he injured his left knee while playing basketball in August 1984. An X-ray was within normal limits and the diagnosis was a left knee sprain. In March 1989, he complained of left knee pain after a fall playing basketball. An X-ray was within normal limits, but there was mild ligament laxity on anterior drawer sign when compared to the right knee. In April 1989, he complained of left knee pain and a note was made to rule out a lateral meniscus tear. A May 1989 magnetic reasoning imaging (MRI) indicated there was no tear in the menisci and ligaments. It was noted that the beginning of degenerative meniscopathy could be assumed. A January 1991 X-ray showed what appeared to be a subacute partial tear or degeneration of the quadriceps muscle. He was given a left knee brace and the diagnosis was left quadriceps tendonitis. In August 2000, the diagnosis was a mild sprain. An X-ray revealed no degenerative changes. On a March 2001 Report of Medical History, the veteran reported having problems with "trick" or locked knees. A May 2001 VA X-ray indicates frontal and lateral views of the knees were negative. The report of the February 2004 VA examination for the joints indicates the veteran did not complain of any knee pain. The report of the August 2006 VA examination indicates the veteran denied constant pain, stiffness, swelling, heat or locking, but said he had the sensation of instability while walking and that this caused pain on occasion. On physical examination, he had limitation of motion and crepitus in both knees, but no instability. An X-ray revealed very mild DJD at the patella femoral joint of each knee. The diagnosis was bilateral chondromalacia. In a July 2007 addendum to the report, the examiner opined that the veteran's bilateral knee disability was not incurred in or aggravated by military service. As already alluded to, competent medical evidence is required to establish a nexus between a current disability and military service. See Espiritu v Derwinski, 2 Vet. App. 492, 494 (1992); Layno v. Brown, 6 Vet. App. 465 (1994); Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); and Hasty v. Brown, 13 Vet. App. 230 (1999). As a layman, the veteran is not qualified to provide a competent medical opinion etiologically linking his bilateral knee disability to the injuries he sustained during military service. Id. And unfortunately, there is no competent medical evidence on record establishing this necessary link. Rather, the medical evidence on record establishes that bilateral knee disability is unrelated to his military service. The claim for service connection for a bilateral knee disability must be denied because the preponderance of the evidence is against the claim-meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. Disability Ratings - In General Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Not all cases will show all of the findings for a specific rating, especially in the more fully described grades of disabilities, but the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. §§ 4.7, 4.21 (2007). All reasonable doubt is resolved in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. 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. 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 (2007). In assessing the degree of disability caused by a service- connected condition, the disorder and reports of rating examinations are to be viewed in relation to the whole history. 38 C.F.R. §§ 4.1, 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When, as here, the veteran timely appeals the ratings initially assigned for his disabilities, VA must consider whether he is entitled to "staged" ratings to compensate him for times since the effective date of his award when his disabilities may have been more severe than at other times during the course of his appeal. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2007). Under 38 C.F.R. § 4.71a, DC 5003, degenerative or osteoarthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Initial Evaluation for Left and Right Shoulder Disabilities The veteran's left and right shoulder disabilities have been evaluated under DC 5201, the criteria for limitation of motion of the arm. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when the arm is limited to shoulder level (90 degrees). When the arm is limited to midway between the side and shoulder level (45 degrees), a 30 percent rating is warranted for the major extremity (dominant) and a 20 percent rating is warranted for the minor (nondominant) extremity. When the arm is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity. Normal limitation of the shoulder is from 0 to 180 degrees of flexion and abduction, and 0 to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I (2007). A May 2001 X-ray revealed DJD of the acromioclavicular joints of the shoulders. The report of the February 2004 VA examination indicates the veteran complained of increased left shoulder pain especially when raising his arm overhead. He said he had recently had a steroid injection, but that offered no relief. On physical examination there was no tenderness to palpation, but there was pain with crossover, Hawkins and Neer tests (indicative of impingment). The shoulder was stable without crepitus; strength measured 4/5. Range of motion was limited to 40 degrees of abduction, flexion, and internal and external rotation. He guarded his left arm and would not allow motion beyond 40 degrees. The diagnosis was subacromial bursitis and impingement syndrome. The report did not contain any mention of the right shoulder. The report of the August 2006 VA examination indicates the veteran complained of constant pain. Range of motion of the left shoulder was limited to 90 degrees of active flexion, 70 degrees of active abduction, 60 degrees of internal rotation, and 50 degrees of external rotation. Range of motion was limited by pain. Range of motion of the right shoulder was limited to 170 degrees of flexion and abduction without pain. He had full range of internal and external rotation of the right shoulder. The examiner opined that the veteran did not have significant additional function impairment caused by pain during flare-ups or resulting from repetitive use. The veteran's left arm was limited to 40 degrees in February 2004 and 90 degrees in August 2006. In February 2004, he complained of increased pain especially when moving his arm overhead. Therefore, his overall disability picture most closely approximates a 20 percent rating for limitation of the left arm (nondominant) to shoulder level or midway between the side and shoulder level. Range of motion of the right arm (dominant) was limited to 170 degrees in August 2006 - lacking only 10 degrees. This is equivalent to a noncompensable, 0 percent rating. Because the veteran has arthritis of the right shoulder and has noncompensable limitation of motion, a 10 percent rating is appropriate for the affected joint under DC 5003. For these reasons, the claim for increased initial ratings for left and right shoulder disabilities must be denied because the preponderance of the evidence is against the claims-meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. Initial Evaluation of the Right Ankle The veteran's right ankle has been evaluated under DC 5003, for arthritis, which is rated based on limitation of motion of the affected part. 38 C.F.R. § 4.71a. Under DC 5271, moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation warrants a 20 percent rating. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is considered from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II (2007). A May 2001 X-ray revealed mild DJD of the tibiotalar joint. The report of the September 2002 VA examination indicates range of motion of the veteran's right ankle was from 20 degrees of dorsiflexion to 40 degrees of plantar flexion. Strength measured 5/5 and there was tenderness along the anterior talofibular ligament. An X-ray did not show any arthritic changes. The report of a February 2004 VA examination indicates the veteran had full range of motion in his right ankle from 20 degrees of dorsiflexion to 50 degrees of plantar flexion. There was mild lateral joint tenderness; the ankle was stable; and strength measured 5/5. An X-ray showed very mild DJD of the tibiotalar joint. The report of the August 2006 VA examination indicates the veteran denied constant pain, but said that he had flare-ups after walking more than 2 miles. Range of motion of the right ankle was limited from 10 degrees of dorsiflexion to 26 degrees of plantar flexion. Prior to August 2006, the veteran had almost full range of motion of his right ankle, which warrants a noncompensable rating under DC 5271. Because X-rays confirmed DJD, a 10 percent rating is warranted under DC 5003. The August 2006 examination showed moderate limitation of motion, which warrants a 10 percent rating under DC 5271. A higher 20 percent rating is not warranted, however, because range of motion is not markedly limited. The evidence indicates the veteran has mild arthritis of the right ankle with moderate limitation of motion. Therefore, the claim for an increased initial rating for a right ankle disability must be denied because the preponderance of the evidence is against the claim-meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. Initial Evaluation of the Residuals of the Resection of the Proximal Phalanx of the Left Fifth Toe During service the veteran underwent surgical arthroplasty of the proximal interphalangeal (PIP) joint of the left fifth toe to correct an adducto varus rotation. A May 2001 X-ray showed the absence of the distal aspect of the proximal phalanx of the left fifth toe from a bone resection. The report of the September 2002 VA examination for the feet indicates the veteran said he had surgery to correct the internal rotation of the fifth toes. The surgical scars were well-healed. He had minimal pain, but some tingling in the area of the scars. On physical examination, he had no fixed deformities and no calluses on his feet. The April 2005 records from Moncreif Army Hospital indicate the veteran complained of pain in the fifth toes of both feet. He had hard corns on the fifth toes. He also had a flatfoot deformity, a hammertoe deformity of the fifth toe, a clawtoe deformity of fourth toe, and adducto varus angulation in all four toes. At the July 2005 hearing, the veteran said that his left fifth toe was painful when he wore shoes. The report of the August 2006 VA examination for the feet indicates the veteran complained of pain and said he avoided weightbearing activities and walking. On physical examination there were no corns, calluses, or edema. He had bilateral hallux deformities of the small toes at 52 degrees. Range of motion of the small toes lacked 10 degrees of active and passive dorsiflexion and plantar flexion at the metatarsal phalangeal (MTP) joints. There was also tenderness at the MTP joints. There was full reconstitution of his arches on nonweightbearing and minimal changes with weightbearing. His gait was normal and there was no pain on manipulation of the Achilles tendon. The examiner stated that the veteran had a moderate hallux valgus deformity of the fifth toe with decreased range of motion after surgical correction. The RO evaluated the residuals of the fifth toe arthroplasty by analogy using the criteria for malunion or nonunion of the tarsal or metatarsal bones under DC 5283. 38 C.F.R. § 4.71a. Under DC 5283, a 10 percent rating is warranted for moderate malunion or nonunion of the tarsal or metatarsal bones. The RO assigned a noncompensable rating because the veteran does not have malunion or nonunion of the tarsal or metatarsal bones of the fifth toe. The Board has also considered other potentially applicable diagnostic codes. Under DC 5282, a single hammertoe warrants a noncompensable rating. 38 C.F.R. § 4.71a. Under DC 5282, a 10 percent rating is warranted only when a hammertoe deformity affects all the toes of the foot. In this case, only the fifth and fourth toes are affected by hammertoe and clawtoe deformities. So a compensable rating under DC 5282 is not warranted. Under DC 5172, amputation of a toe (other than the great toe) without metatarsal involvement warrants a noncompensable rating (with metatarsal involvement warrants a 20 percent rating). 38 C.F.R. § 4.71a. In this case, the resection of the bone of the fifth toe involved the proximal phalanx and not the tarsal or metatarsal bones. So a noncompensable rating is warranted under DC 5172. Under DC 5284, a 10 percent rating is warranted for a moderate foot injury. 38 C.F.R. § 4.71a. The hallux valgus deformity of the fifth toe, however, is not analogous to a moderate foot deformity. While the veteran may experience pain in his fifth toe when he wears shoes, his gait is normal with only mild limitation of motion of the MTP joint of the fifth toe. For these reasons, the claim for an increased initial rating for residuals of resection of the proximal phalanx of the left fifth toe must be denied because the preponderance of the evidence is against the claim-meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Consideration In this case, there is no showing that the veteran's service- connected disabilities present such an exceptional or unusual disability picture so as to warrant the assignment of initial ratings on an extraschedular basis. See 38 C.F.R. § 3.321. At the July 2007 hearing, when asked how his disabilities affected his employment, the veteran said that he could not lift more than 10 pounds. He said that he generally worked from 3 to 7 p.m. and was not asked to do anything outside of his physical ability. Furthermore, his schedular evaluations are intended to compensate him for considerable time lost from employment consistent with those evaluations. 38 C.F.R. § 4.1. The medical evidence also does not show frequent periods of hospitalization or other evidence that would render impractical the application of the regular schedular standards. The degrees of disability specified under the rating schedule are generally considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.2. In the absence of evidence of exceptional factors for extraschedular ratings under 38 C.F.R. § 3.321(b)(1), the Board is not required to remand the claims for consideration of extraschedular ratings. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for service connection for a bilateral knee disability is denied. The claim for an initial rating higher than 20 percent for a left shoulder disability is denied. The claim for an initial rating higher than 10 percent for a right shoulder disability is denied. The claim for an initial rating higher than 10 percent for a right ankle disability is denied. The claim for a compensable initial rating for residuals of the resection of the proximal phalanx of the left fifth toe is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs