Citation Nr: 1307953 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-13 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a sleep disturbance, claimed as insomnia. 2. Entitlement to an initial compensable evaluation for status post arthroscopic surgery of the right shoulder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 2004 to May 2006. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran did not sustain an injury or disease manifesting in a sleep disturbance during active service; symptoms of a sleep disturbance were not chronic in service; symptoms of a sleep disturbance have not been continuous since service separation; and the Veteran does not have a currently diagnosed sleep disorder. 2. Throughout the initial rating period on appeal, the Veteran's right shoulder disability has manifested nearly constant pain at a level of 8 out of 10 in severity; painful movement, especially on abduction; abduction to 130 degrees, adduction to 30 degrees, forward flexion to 140 degrees, internal rotation to 40 degrees, and external rotation to 80 degrees; objective evidence of limited motion confirmed by pain, and x-ray evidence of sclerotic changes of the right shoulder. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disturbance have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial evaluation of 10 percent, but no higher, for status post arthroscopic surgery of the right shoulder have been met for entire initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Sleep Disturbance Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 a 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 claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends that he began having difficulty sleeping during basic training in active service, and that he has continued to experience insomnia since service separation. Specifically, he avers that he goes to bed at 10 p.m., but does not fall asleep until 2 or 3 a.m., and then gets up at 8 a.m. Consequently, he says he does not feel fully awake or "fresh" upon awakening. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during active service, and that symptoms of a sleep disturbance were not chronic in service. While the separation examination report appears to be unavailable, the remainder of the Veteran's service treatment records, including his enlistment examination report, are silent as to any symptoms, complaints, history, treatment, or diagnosis of a sleep disturbance. Therefore, the Board finds that the weight of the evidence demonstrates that no relevant disease or injury occurred during active service, and that symptoms of a sleep disturbance were not chronic in service. The Board next finds that the weight of the evidence demonstrates that symptoms of a sleep disturbance have not been continuous since separation from active service in May 2006. Following service separation in May 2006, the evidence of record does not show any complaints, diagnosis, or treatment for a sleep disturbance until June 2007, when the Veteran filed his claim for service connection. Moreover, there is no documentation of post-service treatment for a sleep disturbance, nor has the Veteran contended that he has ever sought treatment for a sleep disturbance. At this point, even if the Veteran has had trouble sleeping at some points, it is very unclear from this record if the Veteran actually has a "disability" for VA purposes. In any event, the absence of post-service complaints, findings, diagnosis, or treatment after service separation is one factor that tends to weigh against a finding of continuous symptoms of a sleep disturbance after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had symptoms of a sleep disturbance since separation from service in May 2006, the Board finds that, while the Veteran is competent to report the onset of sleep problems, his recent report of continuous sleep disturbance symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to continuous sleep disturbance symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any complaints, findings or diagnoses of a sleep disturbance, and the lack of any post-service documentation of treatment or diagnoses of a sleep disturbance. The Board further finds that the greater weight of the probative evidence is against finding that the Veteran has a currently diagnosed sleep disturbance. He was afforded a VA examination in September 2007. He reported that he usually got only 3 or 4 hours of sleep per night, despite the fact that he said he usually fell asleep around 2 or 3 a.m. and woke up at 8 a.m. (giving him 5 or 6 hours of sleep per night - another basis for the findings of the Board). He denied any apneic breathing periods, snoring, daytime naps, sleep apnea, or use of a CPAP machine. He stated he used to take medications like Ambien and antidepressant medications in 2005 and 2006, but without much improvement in his sleep problems. The VA examiner assessed insomnia by history since 2004, of unknown etiology. Objective evidence was not indicated of a chronic sleep problem. The Veteran, who is the Appellant in this case, had active service from March 2004 to May 2006. The indication of "insomnia by history since 2004" is clearly based on the Veteran's "history" which, as noted above, is simply found not to be accurate. In this regard, the Board has reviewed the Veteran's case in great detailed: The Veteran has indicated he has had a sleeping problem since 2004. However, in his service treatment records, in which the Veteran did seek treatment for several small problems, he made no reference to a chronic sleep issue that existed from 2004 to 2006. The Veteran has never explained this discrepancy. In this regard, the Veteran in his claim to VA noted the problem began in 2006. However, at the VAX, he indicated to the doctor that it began in 2004. In light of the lack of any post-service treatment or diagnosis of a sleep disorder as well as the VA examiner's finding of insomnia by history only, the weight of the probative evidence is against a finding of a current diagnosis of a sleep disturbance. As a result, the claim must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. In this case, the record of evidence indicates that the Veteran did not incur a sleep disturbance during service, has not experienced continuous sleep disturbance symptomatology since service, and that, in fact, he does not have a currently diagnosed sleep disturbance. For these reasons, service connection for a sleep disturbance must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for a sleep disturbance, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Right Shoulder Disability Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's shoulder disability has been evaluated under Diagnostic Code 5202, found in the Schedule of Ratings for the Musculoskeletal System. 38 C.F.R. § 4.71a. Diagnostic Code 5202 contemplates disability of the arm manifested by impairment of the humerus. Under this code, a 20 percent evaluation is assigned when there is malunion of the humerus with moderate deformity on either the major or minor side; a 30 or 20 percent evaluation is assigned when there is malunion with marked deformity of the major or minor side, respectively; a 20 percent evaluation is assigned when there is recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level on either the major or minor side; a 30 or 20 percent evaluation is assigned when there is recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements of the major or minor side, respectively; a 50 or 40 percent evaluation is assigned when there is fibrous union of the humerus of the major or minor side, respectively; a 60 or 50 percent evaluation is assigned when there is nonunion of the humerus (false flail joint) of the major or minor side, respectively; an 80 or 70 percent evaluation is assigned when there is loss of the head of the humerus (flail shoulder) of the major or minor side, respectively. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. As above, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. 67; Layno, 6 Vet. App. 465; Cartwright, 2 Vet. App. 24 (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). 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 a 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 claim. See Gonzales, 218 F.3d at 1380-81; Timberlake, 14 Vet. App. at 128-30. In this case, the Veteran contends that his right shoulder disability warrants an initial compensable rating. Specifically, he contends that his right shoulder pain is almost constant and at a level of 8 out of 10 in severity. Moreover, his pain is greater with activities involving the right arm, including raising the arm above shoulder level and during extreme abduction. He also avers that he experiences frequent popping sounds in the shoulder joint, which is an indicator that there is something not working properly in the joint. Given the joint damage and pain on movement, he contends that a compensable evaluation is warranted. Service connection was granted for status post arthroscopic surgery of the right shoulder in the August 2008 rating decision that is the subject of this appeal, and the RO assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5202. After reviewing all the lay and medical evidence of record, the Board finds that the criteria for a higher initial evaluation of 10 percent, but no higher, have been more nearly approximated for the entire initial rating period on appeal. The evidence shows that the Veteran's right shoulder disability was productive of painful motion, especially abduction, with nearly constant pain at a level of 8 out of 10, and frequent popping sensations, which more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 5003, discussed below. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in September 2007. He reported that he had injured his right shoulder during basic training, and underwent surgery during active service. Currently, he reported almost constant right shoulder pain, at a level of 8 out of 10 in severity. He stated that pain increased during activities involving the right arm, especially when raising his arm above shoulder level and during extreme abduction. He stated the pain was worse in the morning. He did not currently take any pain medications. He also stated he experienced a frequent popping sensation. He denied any subsequent dislocations, septic arthritis, swelling, or constitutional symptoms. He stated he could lift about 25 to 30 pounds with his right hand, and that there was no restriction on his daily activities. On physical examination in September 2007, there was no swelling, tenderness, redness, or warmth of the right shoulder joint. There was no obvious deformity and no drooping. There were two well-healed surgical scars related to the arthroscopic surgery, with no keloid changes. There were no signs of inflammation. The VA examiner noted that movement of the right shoulder joint was essentially within normal range, with abduction to 130 degrees, adduction to 30 degrees, forward elevation to 140 degrees, internal rotation to 40 degrees, and external rotation to 80 degrees. There was slight pain at the extreme end of abduction, but the other movements were not painful. Repetitive movements were normal. There was no obvious wasting of the muscles around the joint, and muscle power was normal. An x-ray study showed a mild degree of sclerotic changes along the glenoid labrum. The VA examiner assessed status post arthroscopic surgery of the right shoulder, and noted that joint function was not additionally limited by pain, weakness, fatigue, or lack of endurance after repetitive use. The examiner further opined that the shoulder condition was not preventing the Veteran from performing daily routine activities or sedentary jobs. As mentioned above, the Veteran's right shoulder disability was evaluated under Diagnostic Code 5202. The evidence in this case does not demonstrate malunion of the humerus, even when considering the Veteran's complaints of nearly constant pain. Thus, he does not meet the criteria for a compensable evaluation under Diagnostic Code 5202. 38 C.F.R. § 4.71a. However, the Board has considered whether any alternative Diagnostic Codes would allow for a higher initial evaluation, and finds that the evidence is at least in equipoise as to whether a 10 percent evaluation is warranted under Diagnostic Code 5003. Diagnostic Code 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Code 5201), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. The Diagnostic Code specifies that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In this case, although there is x-ray evidence of sclerotic changes in the shoulder, the evidence does not demonstrate compensable limitation of motion. Under Diagnostic Code 5201, which contemplates limitation of motion of the arm, a 20 percent evaluation is assigned for either the major or minor extremity when motion is limited to shoulder level (abduction limited to 90 degrees). A 20 percent evaluation is also assigned for the minor extremity when motion is limited to midway between the side and shoulder level (abduction limited to 45 degrees); a 30 percent evaluation is assigned when the major extremity is involved. Finally, a 30 percent evaluation is assigned when motion of the minor extremity is limited to 25 degrees from the side; a 40 percent evaluation is assigned when the major extremity is involved. 38 C.F.R. § 4.71a. Even if limited motion due to pain and stiffness, based on the Veteran's subjective complaints, or other factors, such as weakness, is taken into consideration, the right shoulder range of motion, as demonstrated throughout the rating period on appeal, does not meet the criteria for a compensable evaluation (which requires motion limited to shoulder level, or abduction limited to 90 degrees) under Diagnostic Code 5201. 38 C.F.R. § 4.71a. Indeed, the 2007 VA examiner observed abduction to 130 degrees, well above shoulder level, with slight pain at the end of abduction. Therefore, the Board finds that, for the entire rating period, the Veteran's right shoulder disability has not manifested limited function that more nearly approximates the criteria for a compensable evaluation under Diagnostic Code 5201. 38 C.F.R. § 4.71a. See also 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca, 8 Vet. App. at 204-7. In so finding, the Board has taken into account the Veteran's assertion that his right shoulder disability manifests painful motion and frequent popping sensations, as mentioned above; however, the Board finds the probative value of his general statements as to the functional limitation of his shoulder to be outweighed by the more specific, measured findings on the VA examination of record, which include notations of pain and limiting factors, which shows less limitation in motion than is warranted for a compensable evaluation under Diagnostic Code 5201. Although compensable limitation of motion of the right shoulder has not been demonstrated by the evidence, the Board finds that there is objective evidence of noncompensable limitation of motion such that a 10 percent initial evaluation is warranted under Diagnostic Code 5003. Specifically, the Board notes the Veteran's report of nearly constant pain at a level of 8 out of 10 in severity, with increased pain on abduction of the shoulder. The Board finds the Veteran's report of pain to be credible in light of the VA examiner's notation of pain at the end of abduction on range of motion testing. Moreover, although the VA examiner concluded that the Veteran's shoulder had essentially normal motion, the Board notes that abduction, which was measured at 130 degrees, was limited by 50 degrees (where full abduction is to 180 degrees); forward elevation, measured at 140 degrees, was limited by 40 degrees (where full forward elevation is to 180 degrees); internal rotation, measured at 40 degrees, was limited by 50 degrees (where full internal rotation is to 90 degrees); and external rotation, measured at 80 degrees, was limited by 10 degrees (where full external rotation is to 90 degrees). Resolving reasonable doubt in the Veteran's favor, the Board finds that an initial 10 percent rating is warranted under Diagnostic Code 5003 for the entire rating period on appeal. The Board has considered whether any other diagnostic codes would allow for an even higher initial rating. The evidence does not show, and the Veteran does not contend, that his right shoulder is ankylosed, that there is a flail joint, fibrous union, recurrent dislocation, or malunion of the scapulohumeral joint, of dislocation, nonunion, or malunion of the clavicle or scapula. In fact, the VA examiner found ankylosis, a flail joint, dislocation, malunion, or nonunion. For these reasons, the Board finds that an initial rating in excess of 10 percent under Diagnostic Codes 5200, 5202, or 5203 (2012) is not warranted by the evidence, even with considerations of additional limitations of motion and function due to such factors outlined in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca. The Board also finds that the weight of the evidence is against a grant of any separate ratings related to the right shoulder disability. The Veteran has not reported, nor does the evidence demonstrate, any neurological or other symptoms related to the right shoulder disability. In sum, the evidence is at least in equipoise as to whether the degree of right shoulder impairment demonstrated by the evidence is more nearly approximated by a 10 percent rating, as described above. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 10 percent initial evaluation for the right shoulder disability have been more nearly approximated for the entire initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5003. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's right shoulder disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's right shoulder disability has manifested in sclerotic changes, nearly constant pain, and limitation of motion, including due to pain. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for noncompensable limitation of motion due to painful arthritis (DC 5003, 38 C.F.R. § 4.59), and contemplate ratings based on compensable limitation of motion (Diagnostic Code 5201), including motion limited due to orthopedic factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the right shoulder to the rating schedule, the degree of disability of the right shoulder throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the right shoulder disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of 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. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. The notice included provisions for disability ratings and for the effective date of the claim. Because the current appeal as to the appropriate rating for the right shoulder disability arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a right shoulder disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the sleep disturbance claim, in a timely August 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, a VA examination report, and the Veteran's statements. The Veteran has been afforded an adequate examination on the issue of rating the right shoulder disability. VA provided the Veteran with an examination in September 2007. The Veteran's history was taken, and a complete examination with clinical measures was conducted, to include review of an x-ray study. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. Therefore, the Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's contention that the VA examiner did not adequately take his complaints of pain and functional limitations into account. However, the VA examiner specifically commented on painful motion and whether there was additional functional limitation due to pain or other factors. Thus, the Board finds that the VA examination is adequate. The Veteran was afforded a VA examination with regard to the sleep disturbance claim in September 2007. In that regard, the Board acknowledges that the VA examiner did not provide a nexus opinion with regard to whether there is a relationship between the claimed insomnia and active service; however, the Board finds that a VA nexus opinion is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for a sleep disorder. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to a sleep disturbance in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no chronic symptoms of a sleep disturbance in service, no continuity of symptoms of a sleep disturbance since service separation, and no currently diagnosed sleep disorder. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability (and, in fact, no currently diagnosed disability), there is no reasonable possibility that a VA nexus opinion could aid in substantiating the current claim for service connection for a sleep disturbance. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an opinion as to the etiology of the Veteran's sleep disturbance would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's sleep disturbance and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). ORDER Service connection for a sleep disturbance is denied. An initial 10 percent evaluation for status post arthroscopic surgery of the right shoulder, but no higher, is granted for the entire initial rating period on appeal. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs