Citation Nr: 1304016 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-31 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a sleep disorder, claimed as insomnia. 2. Entitlement to service connection for the residuals of a concussion. 3. Entitlement to service connection for hypertension. 4. Entitlement to an initial compensable disability evaluation for status post right foot metatarsal fusion. 5. Entitlement to an initial compensable disability evaluation for left knee effusion. 6. Entitlement to an initial disability evaluation in excess of 10 percent for a right shoulder strain with internal derangement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from May 2003 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, UT. The Veteran's representative suggested in a September 2011 statement that the issue of entitlement to an increased disability evaluation for a right knee disability was presently before the Board. However, a review of the history of this case reveals that this issue was never appealed to the Board. A Statement of the Case was issued regarding the assigned disability rating for the Veteran's right knee disability in March 2010. VA did not receive an appeal to the Board (VA Form 9) until July 2010. Where a veteran files a notice of disagreement, but fails to perfect his appeal within 60 days of the date on which the Statement of the Case was mailed or within one year from the date of mailing the notice of the decision, the RO's determination becomes final. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 20.204(b), 20.302(b), 20.1103. Therefore, this issue is not before the Board, and if the Veteran wishes to file a claim for a higher rating for his right knee disability, he is free to do so with the RO. The issue of entitlement to an increased disability evaluation for seborrheic dermatitis was raised by the Veteran in November 2012, but this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not have a post-service diagnosis of any disability manifested by impaired sleep. 2. The record does not reflect that the Veteran suffered a concussion during active duty, nor does it reflect any current residuals associated with a concussion. 3. The Veteran has not been diagnosed with hypertension at any time during the pendency of this claim. 4. The Veteran's right shoulder disability is manifested by occasional pain and weakness with marked exertion; it is not manifested by limitation of motion of the arm to shoulder level. 5. The Veteran's right foot disability results in difficulty in balancing on the right foot; it does not result in pain, malunion of the tarsal or metatarsal bones or occupational impairment. 6. The Veteran's left knee disability is manifested by occasional pain; it is not manifested by limited motion, instability or other symptomatology. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a sleep disorder have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for establishing entitlement to service connection for a concussion or any associated residuals have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for establishing entitlement to an initial compensable disability evaluation for status post right foot metatarsal fusion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.45, 4.71a, Diagnostic Code 5283 (2012). 5. The criteria for establishing entitlement to an initial compensable disability evaluation for left knee effusion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.45, 4.71a, Diagnostic Code 5260 (2012). 6. The criteria for establishing entitlement to an initial disability evaluation in excess of 10 percent for a right shoulder strain with internal derangement have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.45, 4.71a, Diagnostic Codes 5024, 5201 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Regarding the Veteran's claims for increased initial disability evaluations, these claims arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As for the claims of entitlement to service connection, a letter sent to the Veteran in June 2008 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA incorporated the Veteran's service treatment records into his electronic file. Also, the Veteran received VA medical examinations in June 2008 and September 2010, and VA has incorporated these records into the electronic record. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. The Board recognizes that it has been more than 2 years since the Veteran's last VA examination regarding his claims for increased disability evaluations. However, the Veteran has not been prejudiced by this fact and a new examination is not required. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In the present case, neither the Veteran nor his representative has provided VA with any evidence or statements to suggest a change in the Veteran's disabilities. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Claims Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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 Shedden/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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Sleep Impairment The Veteran contends that he is entitled to service connection for sleep impairment. However, while the Veteran's service treatment records do reflect complaints involving sleep, the preponderance of the evidence of record demonstrates that the Veteran has not been diagnosed with any actual disability associated with impaired sleep since his separation from active duty. As such, service connection is not warranted. The Veteran's service treatment records reflect that he was seen on a number of occasions with complaints of impaired sleep. A November 2004 record reflects a history of sleep disorders. In December 2007, the Veteran was noted to have been suffering from insomnia off and on for a few years. This was related to an Axis I or Axis II mental disorder (nonorganic). It was noted that the Veteran did not meet the criteria for major depressive disorder, but he did meet the criteria for dysthymia. A January 2008 record reflects that the Veteran desired a sleep study. However, there is no evidence to suggest that this in fact ever occurred. Finally, a May 2008 problem list noted a history of non-organic sleep disorders, insomnia related to Axis I/II sleep disorders, and insomnia. While the above evidence certainly reflects a history of impaired sleep, post-service medical records fail to reflect any diagnosed disability associated with impaired sleep. The Veteran was afforded a VA examination for his claimed sleep disorder in June 2008. The Veteran reported that he suffered from insomnia that began in the summer of 1999 and had worsened since 2003. The Veteran denied receiving any treatment by a doctor for this condition and he did not take any medications for treatment. It was also noted that the Veteran did not receive any treatment for a psychiatric condition. The Veteran described symptomatology such as difficulty getting to sleep, awakening feeling very tired and having low energy despite getting 6 to 7 hours of sleep. Upon examination, it was determined that the Veteran did not suffer from any Axis I or Axis II psychiatric disability. The record contains no additional medical evidence of a diagnosis of, or treatment for, a sleep disorder or a psychiatric disorder. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a disability manifested by impaired sleep. While the Veteran was noted to be suffering from impaired sleep due to a mental disorder, post-service medical records fail to reflect a current diagnosis of any mental disorder. Therefore, any mental disorder suffered during active military service appears to have been acute and transitory, resolving prior to separation from active duty. The Board recognizes that the Veteran is competent to state that he has difficulty falling asleep and that he is tired during the day. However, these symptoms alone are not evidence of any actual disability. Without any diagnosed disability associated with impaired sleep since separation from active duty, service connection cannot be established. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of any disorder associated with impaired sleep, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a disability manifested by impaired sleep must be denied. Concussion The Veteran also contends that he is entitled to service connection for a concussion. However, as outlined below, the preponderance of the evidence reflects that the Veteran has not been diagnosed with a concussion or any residuals of a concussion since his separation from active duty. As such, service connection is not warranted. Service treatment records do not reflect that the Veteran suffered from a concussion at any time during his active military service. A November 2007 record does note that the Veteran reported suffering a concussion while playing football in college. However, service treatment records reflect no symptomatology associated with this condition. Post-service evidence further demonstrates that the Veteran does not suffer from any residuals of a concussion. The Veteran was afforded a VA examination in June 2008. The Veteran reported being diagnosed with a concussion in 2001. Examination revealed the cranial nerves to be normal with normal coordination. The remaining neurological examination was also deemed to be normal. An x-ray of the skull was also taken and deemed to be within normal limits. There were no problems with smell or taste. The examiner concluded that any symptoms associated with a concussion had resolved and there was no current diagnosis. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a concussion or any residuals. There is no evidence of treatment for a concussion or any residuals during active military service. Furthermore, the June 2008 VA examiner concluded that any and all residuals of a past concussion had resolved. As already noted, there must be a current diagnosis of a disorder for service connection to be granted. Hickson, 12 Vet. App. at 252. Without a medical diagnosis of a concussion or any residuals, the Board must deny the Veteran's claim. See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board recognizes that the Veteran believes he suffers from current residuals of a concussion. However, the Veteran has provided VA with no competent evidence to suggest that he does in fact suffer from any residual of a concussion that he incurred during military service. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. at 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Therefore, the Veteran's opinions regarding current residuals fail to demonstrate that service connection is warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a concussion must be denied. Hypertension The Veteran also contends that he is entitled to service connection for hypertension. However, the evidence of record demonstrates that the Veteran does not suffer from hypertension. As such, service connection is not warranted. The Veteran's service treatment records do not reflect that he suffered from hypertension during military service. According to a June 2004 service treatment record, the Veteran had a systolic blood pressure of 150 millimeters (mm) and a diastolic blood pressure of 92 mm (150/92). Hypertension is defined as diastolic blood pressure that is predominantly 90 mm or greater, or systolic blood pressure that is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. While the Veteran was noted to have a diastolic blood pressure over 90, to support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1) (2012). His blood pressure was again taken in November 2004 and found to be 123/71. His blood pressure was also noted to be 125/70 in October 2007, 149/84 in December 2007 and 147/91 in April 2008. Therefore, despite the occasional diastolic pressure in excess of 90, blood pressure readings fail to reflect a consistently elevated blood pressure. Following his separation from active duty, the Veteran was afforded a VA examination in June 2008. The examiner confirmed that the Veteran in fact did not suffer from hypertension. While the Veteran reported being diagnosed with hypertension in 2003, it was noted that he was not currently receiving any treatment for this condition. The Veteran's blood pressure was taken three times, and found to be 120/84, 120/80 and 122/82. The examiner concluded that there was no pathology to render a diagnosis of either hypertension or hypertensive heart disease. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for hypertension. Despite having the occasionally elevated diastolic blood pressure during service, in-service records failed to reflect consistent increases in blood pressure. The June 2008 VA examiner also concluded that the Veteran had no pathology to assign a diagnosis of hypertension. As already noted, there must be a current diagnosis of a disorder for service connection to be granted. Hickson, 12 Vet. App. at 252. Without a medical diagnosis of hypertension, the Board must deny the Veteran's claim. See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board recognizes that the Veteran has indicated that he was diagnosed with hypertension in 2003 and that he believes he still suffers from hypertension. However, as a lay person, the Veteran is not competent to provide a current diagnosis of hypertension. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. at 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). In addition, a reported diagnosis of hypertension in 2003 is of little consequence in the present case. The evidence of record demonstrates that the Veteran has not suffered from hypertension since his separation from active duty. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for hypertension must be denied. Increased Disability Evaluations Relevant Laws and Regulations Disability ratings 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 ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). 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). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). Right Shoulder Disability The Veteran contends that he is entitled to an increased disability evaluation for a right shoulder disability. For historical purposes, service connection for a right shoulder strain with internal derangement was granted in an October 2008 rating decision. A 10 percent disability evaluation was assigned under Diagnostic Code 5201-5024, effective as of August 24, 2008. In October 2009, VA received a timely notice of disagreement from the Veteran. The 10 percent disability evaluation was continued in a May 2010 statement of the case and the Veteran appealed this decision to the Board in July 2010. Following his separation from active duty, the Veteran was afforded a VA examination of the right shoulder in June 2008. The Veteran reported having degenerative joint disease of the right shoulder since 2003. The Veteran endorsed symptoms of weakness and stiffness, but denied symptoms such as swelling, heat, redness, giving way, lack of endurance, locking, fatigability or dislocation. The Veteran described constant pain that could be elicited by physical activity and relieved by rest. With medication, the Veteran could still function with his pain. The examiner noted that the Veteran's right upper extremity was his dominant extremity. Examination revealed tenderness but no signs of edema, effusion, weakness, redness, heat or guarding of movement. There was also no subluxation. Range of motion testing revealed flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. It was noted that this is considered a normal range of motion for the shoulder. It was noted that while the joint was additionally limited by pain, fatigue, weakness and lack of endurance following repetitive use, this did not result in any additional limitation of motion. X-rays were taken and deemed to be within normal limits. The examiner diagnosed the Veteran with degenerative arthritis of the right shoulder surgery joints. The subjective factors were pain to the shoulder and the objective factor was degenerative arthritis changes and pain on motion. The Veteran was afforded an additional VA examination of the right shoulder in September 2010. The Veteran reported some grinding and mild pain since his surgery of 2007. He avoided really heavy lifting, although he was still capable of exercising without difficulty. The Veteran denied any flare-ups of this condition and he used no assistive devices or braces. The Veteran reported occasional discomfort in the shoulder and some weakness with marked exertion such as heavy lifting. Examination revealed flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees and internal rotation from 0 to 90 degrees. Repetition caused no pain, fatigue, weakness or lack of endurance. The examiner diagnosed the Veteran with rotator cuff tear with corrective surgery, with residual myofascial syndrome of the right shoulder. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his right shoulder disability. The Veteran's disability is rated under Diagnostic Code 5201-5024. Diagnostic Code 5024 is used to rate tenosynovitis. See 38 C.F.R. § 4.71a. The rating schedule instructs the rater to rate disabilities under this code based on limitation of motion of the affected part(s) or as degenerative arthritis. Diagnostic Code 5201 is used to rate limitation of motion of the arm. Under this code, a 20 percent rating for the major upper extremity is warranted when motion is limited at shoulder level; a 30 percent rating is warranted when motion is limited midway between the side and shoulder level; and a 40 percent rating is warranted when motion is limited to 25 degrees from the side. Id. In the present case, the evidence of record demonstrates that the Veteran has maintained a full range of motion of the right shoulder throughout the pendency of his claim. As such, a higher disability evaluation of 20 percent is not warranted for limitation of motion of the right arm. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). Presently, the Veteran has already been assigned a 10 percent disability evaluation based on functional loss. The evidence fails to demonstrate that the right shoulder disability, even when contemplating functional loss due to repetition, is of such severity as to result in limitation of motion at shoulder level. The September 2010 VA examiner specifically concluded that repetition resulted in no pain, fatigue, weakness or lack of endurance. As such, a higher disability evaluation is not warranted under DeLuca. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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. The Veteran's symptoms associated with his service-connected right shoulder disability include occasional discomfort and weakness with heavy exertion. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5024, 5201. These codes allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation for his right shoulder disability. However, the Veteran has provided VA with no medical evidence or lay statement to suggest how he meets the criteria for a higher disability evaluation. The Veteran's representative noted in a September 2011 statement that the Veteran noted pain on certain movements of the shoulder. However, functional loss due to pain has already been considered in assigning the compensable 10 percent disability evaluation. Therefore, the statements offered by the Veteran and his representative fail to demonstrate that he is entitled to a higher disability evaluation at any time during the pendency of this claim. The Board has also considered whether a remand for consideration of total disability benefits based on individual unemployability is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the evidence of record demonstrates that the Veteran has maintained full-time employment in this case. Since the evidence establishes that the Veteran is not unemployable as a result of his service-connected right shoulder disability, further consideration of this matter is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent for a right shoulder disability must be denied. Right Foot Disability The Veteran contends that he is entitled to a compensable disability evaluation for a right foot disability. For historical purposes, service connection for a right foot disability was granted in an October 2008 rating decision. A noncompensable (0 percent) disability evaluation was assigned under Diagnostic Code 5283, effective as of August 24, 2008. In October 2009, VA received a timely notice of disagreement from the Veteran. The noncompenable disability evaluation was continued in a May 2010 statement of the case and the Veteran appealed this decision to the Board in July 2010. Following his separation from active duty, the Veteran was afforded a VA examination of the right foot in June 2008. The Veteran reported being diagnosed with a right foot 5th metatarsal fracture in 2002. At rest, standing or walking, the Veteran did not experience any pain, weakness, stiffness, swelling or fatigue. The Veteran denied any other residual symptoms and he denied any current treatment. The Veteran also denied any functional impairment resulting from this injury. Examination revealed no tenderness, painful motion, weakness, edema, atrophy or disturbed circulation. Gait was also deemed to be within normal limits and there was active motion in the metatarsophalangeal joint of the right great toe. X-rays were taken, revealing status post metatarsal fusion. The examiner diagnosed the Veteran as status post metatarsal surgery and noted that the subjective factors associated with this were pain to the foot. The Veteran was afforded an additional VA examination in September 2010. The Veteran denied any pain at this time or any flare-ups. However, he did note that when he tried to balance on the right foot, he had some incoordination to balance. It was noted that the Veteran's current occupation was retail store manager, and although he did a lot of standing and walking, he had no problems with his normal day to day duties. Physical examination revealed no abnormality of any of the toes. There was no functional loss and no tenderness. The Veteran's gait was normal and there were no unusual shoe wear patterns. There were also no skin or vascular changes, problems with the arch of the foot or toes or flat feet. There was also normal alignment of the Achilles tendon. There was no varus or valgus deformity, no misalignment of the foot, no hallux valgus and no abnormalities of the MP joints of the toes. X-rays were ordered but the Veteran did not report to this examination. The Veteran was diagnosed with a right foot metatarsal fracture with the only residual being an inability to balance on the right foot without difficulty. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a compensable disability evaluation for his right foot disability at any time during the pendency of this claim. The Veteran's right foot disability is presently rated under Diagnostic Code 5283. Under this code, a 10 percent disability evaluation is warranted when there is evidence of malunion or nonunion of the tarsal or metatarsal bones that is moderate in severity. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for moderately severe malunion or nonunion and a 30 percent rating is warranted when there is evidence of severe malunion or nonunion. Id. According to the VA examination reports of record, while there was X-ray evidence of surgical repair, physical examination revealed no abnormality of the metatarsophalangeal joints. The Veteran also denied any functional loss or tenderness upon examination in September 2010. As such, it would be inappropriate to characterize the Veteran's disability as being manifested by "moderate" malunion or nonunion of the tarsal or metatarsal bones, and a compensable disability evaluation under Diagnostic Code 5283 is not warranted. The Board has also considered whether there are any other applicable diagnostic criteria that might permit a higher disability evaluation in this case. However, there is no evidence of flatfoot, claw foot, Morton's disease, hallux valgus, hallux rigidus, or hammer toe. As such, higher ratings are not warranted for these conditions. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5278-82. The Board recognizes that the September 2010 VA examiner noted that the Veteran had difficulty balancing on his right foot, and that a 10 percent disability evaluation is warranted for weak foot under 38 C.F.R. § 4.71a, Diagnostic Code 5277. The Veteran's representative also alleged in a September 2011 statement that the Veteran reported the presence of a functional instability of the right foot. However, for a compensable disability evaluation to be warranted under this code, the condition must exist bilaterally (in both the right and left foot). Also, Diagnostic Code 5284 allows for a 10 percent disability evaluation when there is evidence of a foot injury resulting in moderate symptomatology. In the present case, the Veteran has denied pain or tenderness. He also has denied any functional loss as a result of this disability. Finally, although his job requires a lot of standing and walking, he denied any problems with his day to day activities. As such, there is no basis to characterize the Veteran's right foot disorder as "moderate." As such, a higher disability evaluation is not warranted under any applicable diagnostic criteria. The Board has again considered whether referral for extraschedular consideration is warranted in this case. See 38 C.F.R. § 3.321(b). However, the Veteran's right foot disability is presently not associated with any symptomatology aside from difficulty balancing on the right foot. The applicable rating criteria allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an initial compensable disability evaluation for status post right foot metatarsal fusion must be denied. Left Knee Disability The Veteran contends that he is entitled to a compensable disability evaluation for a left knee disability. For historical purposes, service connection for a left knee disability was granted in an October 2008 rating decision. A noncompensable disability evaluation was assigned under Diagnostic Code 5260, effective as of August 24, 2008. In October 2009, VA received a timely notice of disagreement from the Veteran. The noncompensable disability evaluation was continued in a May 2010 statement of the case and the Veteran appealed this decision to the Board in July 2010. Upon separation, the Veteran was afforded a VA examination of the left knee in June 2008. The Veteran reported that he was diagnosed with degenerative joint disease of the knees in 2003. The Veteran reported weakness in the knees, but denied stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. Examination revealed no weakness or subluxation and no locking pain, genu recurvatum or crepitus. Range of motion testing was flexion to 140 degrees and extension to 0 degrees. The joint was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Stability testing was also deemed to be within normal limits. The examiner diagnosed the Veteran with small joint effusion of the left knee. The Veteran was afforded an additional VA examination of the left knee in September 2010. The Veteran reported occasional discomfort in the left knee. He indicated that his main problem was with squatting or running long distances (5 miles). He denied any other functional limitations on standing and walking and there was no prosthesis. Examination revealed flexion to 140 degrees and extension to 0 degrees. There was no pain, fatigue, weakness, lack of endurance or incoordination with repetition. Lachman's and McMurray testing were negative and there was no varus or valgus looseness. No diagnosis was assigned regarding the left knee. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a compensable disability evaluation for his left knee disorder at any time during the pendency of this claim. The Veteran's left knee disorder is presently rated under Diagnostic Code 5260. Under this code, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. According to the VA examinations of record, the Veteran has maintained flexion of the left knee to 140 degrees. This is normal flexion for a knee. See 38 C.F.R. § 4.71a, Plate II. Likewise, the Board has considered whether a compensable evaluation may be warranted for limitation of extension under Diagnostic Code 5261. However, the evidence demonstrates that the Veteran has maintained extension to 0 degrees, which is also normal. See id. The Board has again considered whether the evidence suggests that a higher evaluation may be warranted based on functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, examination in 2008 and 2010 revealed no additional limitation of function due to symptomatology such as pain, fatigue, or incoordination upon repetitive motion. As such, a higher disability evaluation based on functional loss is not warranted. The Board has also considered whether there are any other applicable rating criteria that might permit a higher disability evaluation. A 10 percent disability evaluation is warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the knee that is slight. 38 C.F.R. § 4.71a. However, while the Veteran reported weakness in the knees in June 2008, objective examination revealed no weakness or subluxation. Stability testing was also normal upon examination in September 2010. As such, a compensable disability evaluation is not warranted under Diagnostic Code 5257. Finally, the September 2010 VA examiner noted that there was no evidence of genu recurvatum. There is also no evidence of dislocated or removed semilunar cartilage or the left knee or impairment of the tibia and fibula. As such, no other rating code permits a higher disability evaluation in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258-59, 5262-63. The Board has again considered whether referral for extraschedular consideration is warranted in this case. See 38 C.F.R. § 3.321(b). However, the Veteran's left knee symptomatology is occasional pain. This symptomatology is considered by the applicable rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The applicable rating criteria allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a compensable disability evaluation for left knee effusion must be denied. ORDER Service connection for a sleep disorder, claimed as insomnia is denied. Service connection for the residuals of a concussion is denied. Service connection for hypertension is denied. The claim of entitlement to an initial compensable disability evaluation for status post right foot metatarsal fusion is denied. The claim of entitlement to an initial compensable disability evaluation for left knee effusion is denied. The claim of entitlement to an initial disability evaluation in excess of 10 percent for a right shoulder strain with internal derangement is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs