Citation Nr: 1314593 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-34 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for a low back disability, characterized as degenerative disc disease of the lumbar spine. 2. Entitlement to an initial compensable rating for paresthesia of the right lower extremity. 3. Entitlement to an initial rating in excess of 10 percent for a right shoulder disability, characterized as arthritis of the acromioclavicular joint and bicep tendonitis. 4. Entitlement to an initial rating in excess of 10 percent for a left shoulder disability, characterized as bicep tendonitis. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for a right eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and family ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1975 and from August 1991 to May 2005. This matter is on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2006. The Veteran testified before the undersigned Veterans Law Judge in June 2012. A transcript of the hearing is of record. During the period on appeal, the Veteran's disability rating for his service-connected low back disability was increased from 10 to 40 percent. However, since the RO granted only a portion of the Veteran's increased rating claim, his appeal properly remains before the Board for review. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's low back disorder has been characterized by tightness, pain and limitation of motion; unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months have not been shown. 2. Throughout the course of the appeal, the Veteran's paresthesia of the right lower extremity has been characterized by "burning" and some diminished sensation; impairment to muscle functioning or paralysis to any level has not been shown. 3. Throughout the course of the appeal, the Veteran's left and right shoulder disabilities have been characterized by slight pain when raising the arms above the head and some limitation in carrying heavy objects; ankylosis of scapulohumeral articulation, manifested by favorable abduction to 60 degrees, allowing the mouth and head to be reached, limitation of motion of the arm at shoulder level, recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, malunion of the scapulohumeral joint with moderate deformity, or dislocation or nonunion with loose movement of the clavicle or scapula have not been shown. 4. Neither sensorineural hearing loss for VA purposes nor an eye disorder for which VA benefits may be granted have been clinically shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for a low back disability, characterized as degenerative disc disease of the lumbar spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5237, 5242, 5243 (2012). 2. The criteria for an initial compensable rating for paresthesia of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520 (2012). 3. The criteria for an initial rating in excess of 10 percent for a right shoulder disability, characterized as arthritis of the acromioclavicular joint and bicep tendonitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5200-5203 (2012). 4. The criteria for an initial rating in excess of 10 percent for a left shoulder disability, characterized as bicep tendonitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5200-5203 (2012). 5. Bilateral hearing loss was not incurred in or aggravated by service, is not related to service, and is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 6. A right eye disorder was not incurred in or aggravated by service, is not related to service, and is not currently shown. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. First, the Veteran's increased rating claims arise from his disagreement with the initial ratings following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, 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). Accordingly, no further notice is needed for those issues. With regard to the service-connection claims, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2005 that fully addressed all notice elements 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. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted his own statements in support of his claim. VA examinations with respect to the issues on appeal were also obtained in January 2006. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Recognition is given to the fact that the most recent VA examinations for the issues on appeal are now over six years old. However, in the context of increased rating claims, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since these VA examinations, and he has not contended otherwise. Finally, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in June 2012. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the nature of his eye disorder and his hearing symptoms. He was also able to specifically testify on the symptoms he experiences related to his low back and shoulder disabilities, as well as how these disabilities affect his daily living. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The United States Court of Appeals for Veterans Claims (CAVC) has held that the RO must analyze evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012). Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, since the period on appeal in this case began so shortly after he left active duty (i.e., the day following service separation), the Board may also consider relevant information in the service treatment records in order to determine the most appropriate disability rating. See Moore v. Shinseki, 555 F.3d 1369 (2009) (holding that records from other than a relevant period on appeal must nevertheless be considered, as 38 C.F.R. § 4.1 requires that "a veteran's disability must be evaluated in light of its whole recorded history"). Low Back Disability In this case, the Veteran's low back disorder is currently rated at 40 percent disabling under 38 C.F.R. § 4.71a, DC 5242 (addressing degenerative arthritis of the spine). Ratings under this diagnostic code are based on the General Rating Formula for Diseases and Injuries and Injuries of the Spine established in 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 40 percent under this formula, the evidence must show: * unfavorable ankylosis of the entire thoracolumbar spine (50 percent under DC 5237); or * intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent under DC 5243). Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes defines an "incapacitating episode" as a "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." See 38 C.F.R. § 4.71a. In this case, a rating in excess of 40 percent is not warranted. First, there is no clinical evidence of ankylosis during the course of the appeal. Specifically, the Veteran underwent a VA examination in January 2006 that was directed specifically toward this appeal. On that occasion, he stated that he experiences low back pain that was virtually constant, and described it as a "sharp, sticking and cramping pain." Upon examination, his gait was observed to be normal without any need for assistive devices. Diffuse pain was observed upon palpation. However, no ankylosis was observed and, although his range of motion was diminished in all directions, it remained observable. While the Veteran underwent a number of other evaluations both in service and since service, none of these evaluations indicate the presence of ankylosis. Specifically, as early as November 1998, he exhibited measureable ranges of motion, including forward flexion of 80 degrees. In December 2003, he exhibited 50 degrees of flexion and 10 degrees of extension. Therefore, as ankylosis is not shown, an increased rating is not warranted on this basis. Throughout the course of the appeal, the Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202 (1995). However, as noted above, the next higher rating requires ankylosis rather than restricted range of motion. As the 60 percent rating is not based on limitation of motion, but rather the absence of motion, the DeLuca criteria cannot be used to achieve the higher 60 percent rating. See Johnson, 9 Vet. App. at 7. Next, the evidence also has not indicated incapacitating episodes lasting a total of six weeks over the past 12 months. The Veteran did state at his January 2006 VA examination that his pain will reach the point where he needs to rest in bed. However, this does not constitute an "incapacitating episode" as contemplated by the rating criteria, as it was not prescribed by a physician. Indeed, the other evidence of record does not indicate that he has ever been prescribed periods of bed rest by a physician, nor has the Veteran so asserted. Therefore, an increased rating is also not warranted on this basis. The Board has considered whether an increased evaluation is warranted for right lower extremity paresthesia or a separate evaluation for any other associated neurological abnormality. Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a) (2012). In this case, the Veteran's primary complaint has been related to radiating pain in his lower extremities. The Board has determined that 38 C.F.R. § 4.124a, DC 8520, which provides the rating criteria for paralysis of the sciatic nerve, and well as neuritis and neuralgia of that nerve, would be the most applicable diagnostic code. However, a separate evaluation is not warranted due to the Veteran's lumbar spine disability, as objective evidence of additional neurological abnormalities has not been shown. See Note 1 (stating to evaluate "any associated objective neurologic abnormalities" separately). The provisions of 38 C.F.R. §4.124a, Diagnostic Code 8722 provide for a noncompensable evaluation for mild incomplete neuralgia of the musculocutaneous nerve (superficial peroneal). A 10 percent rating is provided for moderate incomplete neuralgia; 20 percent rating is provided for severe incomplete neuralgia; and a 30 percent rating is provided for complete paralysis. The term "incomplete paralysis" indicates a degree a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See note prior to Diagnostic Code 8510, 38 C.F.R. §4.124a. Specifically, while the evidence indicates that there some pain and "burning" in the right lower extremity that is related to his service-connected back disability, there is no clinical evidence indicative of any actual impairment in the lower extremities. For example, in November 2000, the Veteran complained of hypesthesia in the left lower extremity, but exhibited only slightly decreased strength and no difficulty walking. In evaluations from August 2002 and July 2003, the Veteran again complained of numbness and "burning" in the lower extremities. (Service connection is also in effect for paresthesia of the left lower extremity, evaluated as noncompensable.) However, in October 2003, his strength and reflexes in the lower extremities were specifically observed to be normal, and there was no dysfunction in gait or coordination. Significantly, at his VA examination in January 2006, motor functioning and reflexes in the lower extremities were specifically observed to be normal. While there was some decreased sensation to light touch in the right leg when compared to the left, there was no indication of actual impairment in the lower extremities. Finally, in a February 2007 electrodiagnostic report, the electromyographic findings in his right leg were essentially normal. As the involvement is wholly sensory and mild, a compensable rating is not warranted. Further, the Board finds that a separate evaluation for sciatic nerve incomplete paralysis is not for application. Shoulder Disabilities The Veteran has a 10 percent rating for his service-connected right shoulder disability under 38 C.F.R. § 4.71a, DC 5010 (addressing traumatic arthritis) and a separate 10 percent rating for his service-connected left shoulder disability under 38 C.F.R. § 4.71a, DC 5024 (addressing tenosynovitis). Disabilities characterized under these diagnostic codes are rated based on limitation of motion of the affected parts, in the same manner as degenerative arthritis. Thus, in order to warrant the next higher rating for the Veteran's bilateral shoulder disability, the evidence must show: * Ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, allowing the mouth and head to be reached (30 percent for the dominant side and 20 percent for the non-dominant side under DC 5200); * Limitation of motion of the arm at shoulder level (20 percent under DC 5201); * Recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level (20 percent under DC 5202); * Malunion of the scapulohumeral joint with moderate deformity (20 percent under DC 5202); * Dislocation or nonunion with loose movement of the clavicle or scapula (20 percent under DC 5203). See 38 C.F.R. § 4.71a (2012). Based on a review of the evidence, a rating in excess of 10 percent is not warranted for either shoulder disability. First, the evidence does not show limitation of motion or ankylosis to the point where an increased rating is warranted. For example, at two evaluations in May 2007, the Veteran exhibited no atrophy and, while there was some limitation of motion, he still displayed 110 degrees of bilateral abduction and 120 degrees of flexion. Notably, the Veteran underwent a VA examination that was focused directly on his shoulder complaints. On that occasion, he stated that he has pain on almost a constant basis that affects his ability to move his shoulders. While medication and physical therapy have helped somewhat, he has not undergone any surgeries, and there has not been any functional impairment. Upon examination, his shoulders appeared normal bilaterally, although there was pain upon palpation in the bicep tendon insertion area. While there was some limitation of motion, the Veteran stated that he could flex and abduct both shoulders to 100 degrees. No ankylosis was observed. When rating the extent of the Veteran's disability, the Board also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Notably, at his VA examination in January 2006, he complained of pain throughout the entire range of motion in both shoulders, which made it impossible for the examiner to determine where pain additionally limited his range of motion. However, the mere presence of pain in motion does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such limitation is not shown and, as such, an increased rating is not warranted based on limitation of motion. Next, an increased rating is not warranted based on dislocation or malunion of the shoulder joints. Specifically, at the January 2006 VA examination, there was no indication of malunion or dislocation related to the shoulder joint. Notably, while X-rays of the right shoulder joint indicated arthritis, no malunion was observed. An X-ray of the left shoulder revealed no abnormal findings at all. Moreover, at evaluations in May 2007, no history of malunion or dislocation was noted or observed. Significantly, the Veteran has never asserted that he has ever experienced such symptoms. Therefore, a rating in excess of 10 percent is also not warranted based on malunion or dislocation in the shoulders. The Board recognizes that the January 2006 VA examination (which is the most probative piece of evidence in the record) is problematic, in that it suggests that the Veteran's shoulder range of motion was not actually measured, but rather relied on the Veteran's statements of how far he could raise his arms. See 38 C.F.R. § 4.46 (use of a goniometer in the measurement of range of motion is "indispensable"). However, in this case, the Board does not believe that the examiner's characterization of his range of motion renders the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, unlike other diagnostic codes that consider range of motion in a joint, the relevant standard here is to "shoulder level," which is an evaluation that does not require a specific measurement in degrees. Moreover, the Board also notes that the examiner did not specifically note the presence or absence of malunion or dislocation in the shoulders. However, the Veteran has never asserted that there has been such a history. Notably, at his hearing before the Board in June 2012, he did not mention a history of such symptoms. As such, although this was not specifically addressed by the examiner, it does not appear that any pertinent symptoms were missed by the examiner. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his back and shoulder disabilities are worse than the ratings he currently receives. 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his back and shoulder disabilities according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's back and shoulder disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The CAVC has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. Specifically, while the Veteran has complained of pain, the Board has specifically addressed the impact of such pain on his daily functioning. As such, the Veteran's symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on evidence of record, the Board determines that an increased rating for his low back or bilateral shoulder disabilities is not warranted for any portion of the appeal period. As such, the appeal is denied. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that service connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). While sensorineural hearing loss is considered a chronic disease under 38 C.F.R. § 3.309(a), eye disorders are not and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (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." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). After reviewing the evidence, the Board determines that service connection is not warranted for either of these disorders, as the Veteran's symptoms do not represent actual disabilities for which benefits may be granted. With regard to the Veteran's claim of sensorineural hearing loss, impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, while the Veteran has undergone hearing evaluations on a number of occasions, he has never met the threshold levels under 38 C.F.R. § 3.385. First, his service treatment records reflect this hearing was evaluated on eight separate occasions from 1975 to July 2004. His most severe hearing loss was observed in April 1989, where he exhibited tonal thresholds of 30 dB in the right ear from 500 to 1000 Hz, and 30 dB at 500 Hz in the left ear. However, even on this occasion, three tonal thresholds of 26 dB or greater were not observed. The Veteran has never exhibited a tonal threshold of 40 dB or greater at any frequency. Additionally, at a VA examination in January 2006, the Veteran complained that his hearing loss is due to his service in the infantry, where he often trained with firearms and explosives. However, upon examination, he exhibited tonal thresholds of 35 and 30 dB at 3000 and 4000 Hz, respectively, in the right ear, and no tonal thresholds were in excess of 20 dB at any frequency in the left ear. These tonal thresholds are inadequate to establish that the Veteran has impaired hearing for VA purposes under 38 C.F.R. § 3.385. As for the Veteran's complaints of a vision disorder, the service treatment records do indicate that he was seen rather regularly during his active duty service. Many of these evaluations were solely for corrective lens prescriptions. However, in December 1999, he was evaluated for possible glaucoma. While glaucoma was not observed at that time, various visual field defects were observed. The Board notes that service connection is not typically warranted for congenital or developmental defects, to include refractive error of the eye, as these are not diseases or injuries within the meaning of applicable legislation regarding VA benefits. See 38 C.F.R. § 3.303(c) (2012). However, VA has an obligation to broadly construe a veteran's claims. Here, although the Veteran's service treatment records have at times suggested that there were potential disorders other than congenital refractive error, a VA ophthalmological examination in January 2006 dismisses this possibility. On that occasion, the Veteran complained of "burning" in his eyes and seeing "floaters." After completion of the examination, the examiner noted that the Veteran had "mild reduced vision" in the right eye, as well as a high astigmatic correction. While a small sub-epithelial corneal scar was observed in the right eye, this was asymptomatic. Significantly, while the Veteran did exhibit some mild optic nerve cupping, a potential indicator of glaucoma, his eye pressure was within normal limits, and a current diagnosis of glaucoma was not warranted. As far as the Veteran's complaints of burning and "floaters," the examiner did not observe any such "floaters," and his burning sensation was simply dry eye syndrome. Based on the results of this examination, as well as the absence of any other diagnoses in the record, the only identifiable eye disorder was basic refractive error which, as mentioned above, is not a disability for which service connection may be granted. Therefore, the Board is left to conclude that neither of these disorders exists for purposes of VA regulations. Moreover, the mere assertion of symptoms alone cannot be compensable without an in-service disease or injury to which any asserted symptoms can be connected by competent evidence. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his claimed disorders. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his bilateral hearing loss and eye disorder. See Jandreau, 492 F.3d at 1377, n.4. Because these disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's hearing loss and eye disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 40 percent for a low back disability, characterized as degenerative disc disease of the lumbar spine, is denied. An initial compensable rating for paresthesia of the right lower extremity is denied. An initial rating in excess of 10 percent for a right shoulder disability, characterized as arthritis of the acromioclavicular joint and biceps tendonitis, is denied. An initial rating in excess of 10 percent for a left shoulder disability, characterized as biceps tendonitis, is denied. Service connection for bilateral hearing loss is denied. Service connection for a right eye disorder is denied. ______________________________________________ BARBARA B COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs