Citation Nr: 1037577 Decision Date: 10/05/10 Archive Date: 10/12/10 DOCKET NO. 06-01 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for right shoulder impingement with degenerative changes, evaluated as 20 percent disabling. 2. Entitlement to an increased rating for fracture, third distal interphalangeal joint, right hand, evaluated as noncompensably disabling. 3. Entitlement to an increased rating for left ankle sprain, evaluated as 10 percent disabling. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for pain associated with dyspepsia and disorders of the stomach. 6. Entitlement to an increased rating for fracture, fifth proximal interphalagneal joint, left hand, evaluated as noncompensably disabling. 7. Entitlement to an increased rating for allergic rhinitis, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from November 1985 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of November 2004, September 2005, and December 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before a decision review officer (DRO) at a hearing in March 2009 and before the undersigned Acting Veterans Law Judge at a hearing in August 2009. Transcripts of both hearings are of record. The issues of service connection for sleep apnea and pain associated with dyspepsia and disorders of the stomach being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Although the Veteran has submitted evidence of medical disabilities, and made claims for the highest ratings possible for his right shoulder, right third distal interphalangeal joint, and left ankle, he has not submitted evidence of unemployability as the record shows that he is a full-time college student; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). FINDINGS OF FACT 1. Prior to February 24, 2007, the Veteran's service-connected right shoulder disability was manifested by disability tantamount to limitation of motion in the arm to the shoulder level (90 degrees). 2. For the period from February 24, 2007, to April 19, 2009, the Veteran's service-connected right shoulder disability was manifested by disability tantamount to limitation of motion to midway between the side and shoulder level (45 degrees). 3. Since April 20, 2009, the Veteran's service-connected right shoulder disability is manifested by disability tantamount to limitation of motion to 25 degrees from the side. 4. The Veteran's service-connected right middle finger disability is manifested by disability tantamount to extension limited by more than 30 degrees. 5. Prior to February 24, 2007, the Veteran's service-connected left ankle disability was manifested by disability tantamount to moderate limitation of motion. 6. Since February 24, 2007, the Veteran's service-connected left ankle disability is manifested by disability tantamount to marked limitation of motion. 7. In a written statement received at the DRO hearing in March 2009, the Veteran indicated that he did not want to pursue his perfected appeal of the issue of entitlement to an increased rating for fracture, fifth proximal interphalagneal joint, left hand. 8. In a written statement received at the DRO hearing in March 2009, the Veteran indicated that he did not want to pursue his perfected appeal of the issue of entitlement to an increased rating for allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder impingement with degenerative changes for the period prior to February 24, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5201 (2009). 2. The criteria for a rating of 30 percent for right shoulder impingement with degenerative changes for the period from February 24, 2007, to April 19, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5201 (2009). 3. The criteria for a rating of 40 percent for right shoulder impingement with degenerative changes since April 20, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5201 (2009). 4. The criteria for a rating of 10 percent for fracture of the right third distal interphalangeal joint have been met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5226- 5229 (2009). 5. The criteria for a rating in excess of 10 percent for left ankle sprain for the period prior to February 24, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271 (2009). 6. The criteria for a rating of 20 percent for left ankle sprain since February 24, 2007, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271 (2009). 7. The criteria for withdrawal of a Substantive Appeal on the issue of entitlement to an increased rating for fracture, fifth proximal interphalagneal joint, left hand have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 8. The criteria for withdrawal of a Substantive Appeal on the issue of entitlement to an increased rating for allergic rhinitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in August 2004 and May 2005 letters, issued prior to the respective decisions on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. March 2006 and February 2009 letters advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claims were last readjudicated in July 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and VA examination reports. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, submitting medical release forms and evidence, as well as describing the impact his service-connected disabilities had on his functioning. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman, supra, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA opinions with respect to the rating question issues on appeal were obtained in September 2004, August 2005, February 2007, and April 2009. 38 U.S.C.A. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate for rating purposes, as they consider the pertinent evidence of record, to include the Veteran's statements, and provide the medical information necessary to apply the appropriate rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the rating question issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Increased Evaluation The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. § 4.45 (2009). 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Right shoulder In a July 1995 rating decision, the RO granted service connection for impingement syndrome, right shoulder, and assigned a noncompensable percent rating under Diagnostic Codes 5299-5201. The Veteran filed the present claim for an increased rating in August 2004. In the appealed November 2004 rating decision, the RO expanded service connection to include degenerative arthritis under Diagnostic Codes 5010-5201. In an April 2006 rating decision, the RO increased the evaluation to 20 percent, effective May 19, 2004, the date of a VA treatment record showing painful and limited motion. Diagnostic Code 5010 provides that traumatic arthritis is to be evaluated under Diagnostic Code 5003 (degenerative arthritis- hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2009). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2009). Limitation of motion of the arm is evaluated under Diagnostic Code 5201. Under Diagnostic Code 5201, a 20 percent rating is assigned where motion in the arm is limited to the shoulder level (90 degrees) for both the minor extremity and major extremity. 38 C.F.R. § 4.71a, Plate I, Diagnostic Code 5201 (2009). Where motion is limited to midway between the side and shoulder level (45 degrees), a 20 percent rating is assigned for the minor extremity and a 30 percent rating is assigned for the major extremity. Id. Where motion is limited to 25 degrees from the side, a 30 percent rating is assigned for the minor extremity and a 40 percent rating is assigned for the major extremity. Id. Full range of motion of the shoulder is zero degrees to 180 degrees on forward elevation (flexion), zero degrees to 180 degrees on abduction, and zero degrees to 90 degrees on both external and internal rotation. 38 C.F.R. § 4.71, Plate I (2009). VA treatment records show the Veteran's complaints of right shoulder pain and that he has received injections to ease the pain. He had decreased painful range of motion in May 2004. The Veteran was afforded a VA examination in September 2004. He reported pain that he rated at ten on a scale of one to ten (10/10). He denied any weakness of the arm. He was right hand dominant. Physical examination revealed no tenderness. On range of motion, he had 170 degrees of active and passive forward flexion, 150 degrees of active abduction and 170 degrees of passive abduction, 40 degrees of extension, 90 degrees of external rotation, and 70 degrees of internal rotation. The Veteran had mild discomfort at 150 degrees of active abduction, and repetitive range of abduction remained the same both actively and passively with complaints of mild pain at 150 degrees. He had no complaints of pain or discomfort with flexion or extension. He had mild discomfort at 80 degrees of passive internal rotation. Repetitive range of motion did not show any changes. Manual muscle strength was normal, drop-arm test was negative, and no atrophy of the muscles was noted. X-rays showed probable mild anterior hooking of acromion, otherwise unremarkable. The Veteran was afforded a second VA examination in February 2007. He reported pain of 8/10, and weakness in lifting objects over his head. He denied stiffness, swelling, calor, erythema, instability, and locking. He also reported that he had fatigue and did not have much endurance for lifting or carrying objects. He did not use any assistive devices for his shoulder. Physical examination showed no ecchymosis, calor, muscular atrophy, or infection. On range of motion, he had 150 degrees of active forward flexion and 95 degrees of passive forward flexion, 85 degrees of active abduction and 80 degrees of passive abduction, 35 degrees of active external rotation and 40 degrees of passive external rotation, and 35 degrees of active internal rotation and 30 degrees of passive internal rotation. The examiner noted that the Veteran had pain starting at approximately 60 degrees of flexion and abduction. He had decreased strength of 4+/5 in forward flexion and 4+/5 in abduction. His sensation was intact to light touch, and he had a 2+ radial pulse. X-rays showed no gross abnormality, no evidence of fracture or dislocation of the shoulder. The examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance with repetition of motion. His range of motion remained stable with repeated range of motion exercise and with strength testing. The Veteran had constant pain. With repetitive testing, it did not increase with repetitions. The examiner provided a diagnosis of right shoulder subacromial impingement with supraspinatus tendinitis. The Veteran was afforded a third VA examination in April 2009. The Veteran reported that his right shoulder remained symptomatic. He reported that his condition progressively worsened with time. He had a sharp sticking pain in the shoulder. The Veteran reported that he had difficulty with any attempts at use of his arm at shoulder level or above; in fact, he had difficulty with even elevating his arm to shoulder level. The pain was reported to be constant, and worsened with use. He was unable to sleep on his right side and was no longer able to clean himself at the toilet with his right hand. He reported a locking sensation of the shoulder at times. He had rather significant pain with just resting his arm on an arm rest while seated. On range of motion, he had 70 degrees of flexion, 60 degrees of abduction, 50 degrees of internal rotation, 35 degrees of external rotation, 30 degrees of extension, and 15 degrees of adduction. He had pain throughout all range of motion testing. There was no additional limitation of motion after repetitive motion. There was tenderness over the anterior aspect of the shoulder, a positive supraspinatus stress test, and a positive Hawkins impingement sign. Regarding functional status, the Veteran was independent of his activities of daily living, and was a full time college student. Regarding work restrictions, there would be restrictions involving lifting, carrying, and overhead use of the right arm. The Veteran was diagnosed with impingement syndrome. The Veteran testified in August 2009 of his limited range of motion, pain, and the effect that his disability had on his daily life. Here, based on a review of the evidence, the Board finds that a 20 percent rating is not warranted earlier than May 19, 2004, a 30 percent rating is warranted, effective February 24, 2007, the date of a VA examination, and a 40 percent rating is warranted, effective April 20, 2009, the date of a VA examination. Prior to February 24, 2007, the earliest VA treatment record showing findings warranting a 20 percent rating were in May 2004. As noted above, the Veteran had decreased painful range of motion at that time. There are no earlier records showing treatment for the Veteran's right shoulder than that record. Therefore, a rating of 20 percent is not warranted prior to May 19, 2004. A 30 percent rating is not warranted prior to February 24, 2007. The VA examination in September 2004 revealed that the Veteran had 170 degrees of active and passive forward flexion, 150 degrees of active abduction and 170 degrees of passive abduction. No pain was noted on range of motion testing. Additionally, repetitive range of motion did not show any changes. Manual muscle strength was normal, drop-arm test was negative, and no atrophy of the muscles was noted. As noted above, a 30 percent rating requires limitation of motion to or more nearly approximate midway between the side and shoulder level; the competent medical evidence of record does not show that the Veteran's right shoulder disability limited his motion to that extent prior to February 24, 2007. Therefore, a rating higher than 30 percent prior to February 24, 2007, is not warranted. At the February 2007 examination, the Veteran had 150 degrees of active forward flexion, 95 degrees of passive forward flexion, 85 degrees of active shoulder abduction, and 80 degrees of passive shoulder abduction, with pain starting at approximately 60 degrees of flexion and abduction. As noted above, a 30 percent for the major extremity (the Veteran is right-handed) rating requires motion to be limited to midway between the side and shoulder level (45 degrees). When taking into account the Veteran's pain on motion, the Board finds that his right shoulder disability more nearly approximates the criteria for a 30 percent rating from February 24, 2007. Based on the Veteran's testimony and treatment records, with consideration of additional functional loss due to pain, and when resolving reasonable doubt in favor of the Veteran, his right shoulder disability may be viewed as equating to limitation of motion to midway between the side and shoulder level (45 degrees). See 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201, DeLuca, supra. The Board also finds that a 40 percent rating is warranted from April 20, 2009. At the April 2009 VA examination, the Veteran had 70 degrees of flexion and 60 degrees of abduction, with pain throughout all range of motion testing. The Veteran reported difficulty with any attempts at use of his arm at shoulder level or above, and difficulty with even elevating his arm to shoulder level. As noted above, a 40 percent rating requires that motion be limited to 25 degrees from the side. When taking into account the Veteran's pain throughout all range of motion, the Board finds that his right shoulder disability more nearly approximates the criteria for a 40 percent rating from April 20, 2009. Based on the Veteran's testimony and treatment records, with consideration of additional functional loss due to pain, and his need to limit his activities, and when resolving reasonable doubt in favor of the Veteran, his right shoulder disability may be viewed as equating to limitation of motion to 25 degrees from the side. See 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201, DeLuca, supra. Therefore, a 40 percent rating is warranted from April 20, 2009. A 40 percent rating is the highest rating available under Diagnostic Code 5201. The Board also considered whether other potentially applicable diagnostic codes would allow for higher ratings, but finds that none apply. Diagnostic Code 5200 is for application when there is ankylosis, which has never been shown. Diagnostic Code 5202 is also inapplicable as the evidence does not show that the Veteran's disability was productive of fibrous union, nonunion, or loss of head of the humerus so a rating in excess of 20 percent is not warranted under this diagnostic code. Diagnostic Code 5203 only provides for a rating as high as 20 percent. Accordingly, the Board concludes that a 30 percent rating is warranted for the period of February 24, 2007, to April 19, 2009, and a 40 percent rating is warranted since April 20, 2009. 2. Right third finger In an April 1995 rating decision, the RO granted service connection for fracture of the third distal interphalangeal joint on the right hand and assigned a noncompensable rating under Diagnostic Code 5227. The Veteran filed the present claim for an increased rating in November 2005. In the appealed December 2005 rating decision, the RO continued the assigned noncompensable rating, but rated it under Diagnostic Codes 5226-5229. Under Diagnostic Code 5229, a noncompensable rating is assigned when there is a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than thirty degrees for both major and minor extremities. 38 C.F.R. § 4.71a, Plate III, Diagnostic Code 5229 (2009). A 10 percent rating is assigned when there is a gap of one inch (2.5 cm.) or more between the fingertip and the transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees for both major and minor extremities. Id. The Veteran was afforded a VA examination in August 2005. The Veteran reported that his finger was sensitive to cold temperatures. His current symptoms included "spasms" or extreme stiffness, more in the morning. He reported an increase in symptoms of pain and stiffness after 5-15 minutes of activity, which caused him to stop the activity. He had decreased grip strength, but was functional. His fine motor coordination and abilities were affected. There was no gap between the fingertip and the proximal transverse crease of the palm. On range of motion, he had 71 degrees of flexion and 32 degrees of extension. Range of motion was limited by pain and stiffness. The Veteran was afforded a second VA examination in February 2007. He complained of pain rated as 5/10, which was worsened with activity. He could not grip tools to use, which were part of his previous profession as a mechanic. He also reported that he could not open jars. On examination, there were no scars, signs of trauma, or open wounds. There was no ecchymosis, erythema, or calor. He had a 30 degree flexion deformity of the third distal interphalangeal joint. On range of motion, he had 30-90 degrees both active and passive. There was a gap of one cm. between the tip of the middle finger and the proximal transverse crease. The middle finger to thumb had a gap of zero cm. The middle finger to the thenar eminence had a gap of one cm. The Veteran had normal grip strength, but could not completely extend the finger. There was an obvious cosmetic deformity of the right middle finger. The examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance with repetitive testing. X-rays showed deformity and degenerative changes. The Veteran was diagnosed with right middle finger distal interphalangeal joint degenerative joint disease with flexion contracture. The Veteran was afforded a third VA examination in April 2009. He reported a constant pain, with increased pain during periods of cold weather. He was a full time college student, so his disability had no affect on his occupation. Physical examination revealed enlargement of the distal interphalangeal joint. On range of motion, he had -40 degrees of extension and 40 to 75 degrees of flexion. Pain on motion noted. There was no additional limitation of motion after repetition. There was tenderness of the joint. He could oppose the thumb to the fingertips. Grip strength was 4/5. He was diagnosed with residuals of fracture of the distal interphalangeal joint of right long finger. The Veteran testified at his hearing in August 2009 about his trouble gripping items, and a loss of strength. He also testified that he was told that the only treatment is amputation. Here, the evidence shows that the Veteran's fracture of the third distal interphalangeal joint of the right hand more nearly approximates the criteria required for a 10 percent rating for the duration of the appeal. As discussed above, at the August 2005 examination, he had 32 degrees of extension, limited by pain and stiffness. The 2007 VA examiner noted the presence of a 30 degree flexion contracture [30 degrees extension, 90 degrees flexion]. The April 2009 VA examiner noted extension limited to 40 degrees. The Board finds that based on the Veteran's testimony and treatment records, with consideration of additional functional loss due to pain, and when resolving reasonable doubt in favor of the Veteran, his right middle finger disability may be viewed as equating to a 10 percent rating for the duration of the appeal. See 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229, DeLuca, supra. A 10 percent rating is the highest rating available under Diagnostic Code 5229. The Board also considered whether other potentially applicable diagnostic codes would allow for a higher rating, but finds that none apply. The only rating higher than 10 percent is for application when there has been amputation under Diagnostic Code 5154. No part of the Veteran's third distal interphalangeal has been amputated. The Board acknowledges that the Veteran testified that amputation is the only treatment available. However, the evidence does not show that his disability is of the severity to be considered analogous to amputation. Additionally, Diagnostic Code 5226 for ankylosis of the long finger also provides for the disability to be rated as amputation if warranted. Here, ankylosis has never been shown. Therefore, a higher rating than 10 percent is not warranted at any time during the pendency of this appeal. Accordingly, the Board concludes that a 10 percent rating is warranted for the duration of the appeal. 3. Left Ankle In a March 2002 rating decision, the RO granted service connection for left ankle sprain and assigned a 10 percent rating under Diagnostic Codes 5024-5271. The Veteran filed the present claim for an increased rating in August 2004. In the appealed November 2004 rating decision, the RO continued the assigned 10 percent rating under Diagnostic Codes 5024-5271. Under Diagnostic Code 5271, a 10 percent rating is for application with moderate limitation of motion. 38 C.F.R. § 4.71a, Plate II, Diagnostic Code 5271 (2009). A 20 percent rating is for application with marked limitation of motion. Id. Full range of motion of the ankle is to 20 degrees on dorsiflexion, and to 45 degrees on plantar flexion. 38 C.F.R. § 4.71, Plate II (2009). The Veteran was afforded a VA examination in September 2004. The Veteran wore an elastic left ankle support. Examination showed no swelling, but mild tenderness on medial and lateral aspect of the ankle. Inversion/eversion stress test did not show any instability; however, he complained of moderate to severe pain. On range of motion, he had 15 degrees of active dorsiflexion and 20 degrees of passive dorsiflexion, and 35 degrees of active and passive plantar flexion. The Veteran complained of moderate to severe pain between 15 degrees and 20 degrees of dorsiflexion; repetitive range of motion did not show any changes either in the level of pain or the range of motion. Repetitive range of motion remained the same on plantar flexion without any complaints of additional pain. He had 20 degrees of inversion, and 10 degrees of eversion without any complaints of pain or discomfort. Repetitive range of motion remained the same. No plantar calluses or warts were noted. No tenderness on the plantar surface was noted. Achilles tendon was in midline. No deformity was noted. No tightness noted. Inspection of the shoes did not reveal any uneven wear or tear. The Veteran was diagnosed with degenerative joint disease of left ankle. The Veteran was afforded a second VA examination in February 2007. He complained of sharp pain rated as 8/10, which he experienced constantly. He was required to wear a brace and shoe inserts. He reported that his left foot was swollen every day. The Veteran denied any catching or locking. He also denied any erythema or calor. He did report that his left ankle became fatigued and that he had little endurance. He reported flare-ups of pain that went up to 10/10 that occurred four to five times per day. The flare-ups occurred with exertion of the ankle, walking more than 15-20 minutes. The Veteran was able to walk approximately 15 minutes without any severe pain. If he walked for more than one hour, he would have a severe flare-up and be unable to walk for approximately 24 hours because of pain. He was currently in school and not working. He reported that if not in school, he would be unable to work due to the severe ankle pain. Physical examination showed no visible edema or joint effusion. There was no visual varus or valgus deformity. He had a negative drawer examination. He did have pes planus. His ankle was grossly stable. He had tenderness to palpation over the lateral malleolus. He had a significant callus over the bottom of his foot. He had a 2+ dorsalis pedis and 2+ posterior tibial pulse in the left too. His sensation was intact to light touch. He had 5/5 strength of dorsiflexion and plantar flexion. He was able to flex and extend the hallux with normal strength. On range of motion, he had 5 degrees of passive and active dorsiflexion, and 15 degrees of active and passive plantar flexion. There was no palpable crepitance with range of motion. He was able to invert and evert without difficulty. He did have tenderness over the anterior talus. There was no erythema or ecchymoses, and no palpable bony deformity. The examiner found that there was no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance with repetitive motion. The Veteran was diagnosed with left ankle sprain and left talar osteochondral defect. The Veteran was afforded a third VA examination in April 2009. He reported constant pain. Weightbearing was painful, particularly if he had been on his feet for over 30 minutes or so. He had to stop and rest during weightbearing and literally lift his foot off the ground to alleviate some of the ankle pain. He reported that he had fallen on several occasions secondary to the severity of the ankle pain. The Veteran was a full-time college student. His ankle did not prevent him from pursuing his studies. Physical examination showed swelling. On range of motion, he had 0 degrees of dorsiflexion and 40 degrees of plantar flexion. There was pain on motion, but no additional limitation of motion after repetitive motion throughout motion. There was tenderness over the lateral aspect of the ankle. Drawer sign was negative. He was diagnosed with residuals of left ankle sprain with subchondral cystic changes in the lateral talar dome. The Veteran testified at his hearing in August 2009 about his need to wear a brace, his ankle giving out on him, and his limited range of motion. Here, the Board finds that prior to February 24, 2007, the Veteran's service-connected left ankle sprain more nearly approximates the criteria for a 10 percent rating, but that since February 24, 2007, it more nearly approximates the criteria for a 20 percent rating. Prior to February 24, 2007, the Veteran's range of motion was shown to be limited to 15 degrees of active dorsiflexion and 20 degrees of passive dorsiflexion, and 35 degrees of active and passive plantar flexion, with moderate to severe pain between 15 degrees and 20 degrees of dorsiflexion. As noted above, full range of motion of the ankle is to 20 degrees on dorsiflexion, and to 45 degrees on plantar flexion. Even when taking into account the Veteran's complaints of moderate to severe pain between 15 degrees and 20 degrees of dorsiflexion, the Veteran's left ankle disability cannot be said to equate to "marked" limitation of motion, as required for a 20 percent rating. Rather, the Veteran's limitation of motion was better characterized as moderate. At the February 24, 2007, examination, the Veteran's range of motion was shown to be limited to 5 degrees of passive and active dorsiflexion, and 15 degrees of active and passive plantar flexion. The April 2009 examination revealed that the Veteran's range of motion was limited to 0 degrees of dorsiflexion and 40 degrees of plantar flexion, with pain on motion. Based on the Veteran's testimony and treatment records, with consideration of additional functional loss due to pain, and his need to limit his activities, and when resolving reasonable doubt in favor of the Veteran, his left ankle disability may be viewed as equating to marked limitation since February 24, 2007. See 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201, DeLuca, supra. A 20 percent rating is the highest rating available under Diagnostic Code 5271. The Board also considered whether other potentially applicable diagnostic codes would allow for higher ratings, but finds that none apply. The only rating higher than 20 percent is for application when there is ankylosis of the ankle under Diagnostic Code 5270. In this case, none of the VA treatment records, or the VA examinations showed any ankylosis of the left ankle. Accordingly, the Board concludes that a 10 percent rating is warranted for the period prior to February 24, 2007, and that a 20 percent rating is warranted thereafter. 4. Other Considerations As discussed in detail above, the Board has assigned staged ratings for the right shoulder and left ankle disabilities as the factual findings show distinct time periods where the disabilities exhibited symptoms that warranted different ratings. See Hart, supra. No stage rating is warranted for the Veteran's right finger disability, as the factual findings do not show distinct time periods where the disability exhibited symptoms that warranted different ratings. The Board has also considered whether the Veteran's right shoulder, right finger, and left ankle disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology due to his right shoulder, right finger, and left ankle disabilities, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Withdrawal of Substantive Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2009). The Veteran perfected an appeal of the issues of entitlement to increased ratings for fifth proximal interphalangeal joint, left hand, and allergic rhinitis in November 2005. At a hearing before a DRO in March 2009, the Veteran submitted written correspondence that he wished to withdraw his appeal for those issues. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to the fifth proximal interphalangeal joint, left hand, and allergic rhinitis issues. Accordingly, the Board does not have jurisdiction to review the appeal on these issues. ORDER Entitlement to an increased rating for right shoulder impingement with degenerative changes prior to February 24, 2007, is denied. Entitlement to a 30 percent rating for right shoulder impingement with degenerative changes for the period from February 24, 2007, to April 19, 2009, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 40 percent rating for right shoulder impingement with degenerative changes from April 20, 2009, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating for fracture, third distal interphalangeal joint, right hand for the entire appeal period is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an increased rating for left ankle sprain prior to February 24, 2007, is denied. Entitlement to a 20 percent rating for left ankle sprain from February 24, 2007, is granted, subject to the law and regulations governing the payment of monetary benefits. The appeal is dismissed on the issue of entitlement to an increased rating for fifth proximal interphalangeal joint, left hand. The appeal is dismissed on the issue of entitlement to an increased rating for allergic rhinitis. REMAND The Board finds that further development is needed on the issues of service connection for sleep apnea and for pain associated with dyspepsia and disorders of the stomach. With regards to the Veteran's sleep apnea, the Veteran credibly testified regarding first experiencing sleep apnea in 1992, following an in-service motor vehicle accident. The Veteran is competent to testify regarding his symptomatology. Competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). The undersigned found the Veteran to be credible regarding his in-service symptoms and his continuity of symptomatology. Post-service medical records confirm that the Veteran has been diagnosed with sleep apnea since at least 2002. The Veteran has not been afforded a VA examination to determine the etiology of his sleep apnea. Since the Veteran has a current diagnosis of sleep apnea, and credibly testified regarding his continuity of symptomatology since service, the Board finds that a VA examination is necessary to determine whether his sleep apnea is related to his military service. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet App 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Turning to the Veteran's pain associated with dyspepsia and disorders of the stomach, the Veteran's STRs show several complaints related to his stomach and digestive system. In September 1991 he was diagnosed with acute diarrhea; in August 1992 he was diagnosed with viral acute gastroenteritis; and in August 1993 he was diagnosed with gastritis. The Veteran also complained of cramping in September 1993 and of stomach pain in October 1993. VA treatment records show a diagnosis of gastritis. The Veteran was afforded a VA examination in April 2009 and was diagnosed with gastroesophageal reflux disease (GERD). Although the examiner opined that the Veteran's GERD was not related to NSAIDS taken for service-connected disabilities, the examiner did not provide an opinion as to whether the Veteran's current GERD was attributable to his documented in- service complaints. The Veteran credibly testified regarding a continuity of symptomatology of his in-service stomach complaints to the present. Therefore, the Board finds that a new VA examination is necessary to determine if the Veteran has a stomach disorder that is related to his military service. See 38 U.S.C.A. § 5103A(d); Barr, supra; McLendon, supra. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature of the Veteran's sleep apnea and to provide an opinion as to its possible relationship to service. The claims file should be provided to and reviewed by the examiner. All tests deemed necessary should be conducted and the results reported. Following examination of the Veteran and review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is related to an incident of the Veteran's active military service. (The examiner is to accept as fact that the Veteran experienced problematic breathing during sleep, he snored loud, and he had episodes of waking up choking in service and after service.) The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the VA examiner is of the opinion that an opinion cannot be provided without resorting to speculation then he/she must provide a detailed medical explanation as to why this is so. 2. Schedule the Veteran for an appropriate VA examination to determine the nature of any current stomach disorder and to provide an opinion as to its possible relationship to service. The claims file should be provided to and reviewed by the examiner. All tests deemed necessary should be conduced and the results reported. Following examination of the Veteran and review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current stomach disorder is related to an incident of the Veteran's active military service, including his multiple stomach complaints in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any ulcers the Veteran had in the past are related to NSAIDS he took in the past. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the VA examiner is of the opinion that an opinion cannot be provided without resorting to speculation then he/she must provide a detailed medical explanation as to why this is so. 3. Thereafter, please readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. (CONTINUED ON NEXT PAGE) 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs