Citation Nr: 1322592 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-05 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine prior to June 15, 2011. 2. Entitlement to an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine since June 15, 2011. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy in the left upper extremity prior to June 15, 2011. 4. Entitlement to an initial rating in excess of 20 percent for radiculopathy in the left upper extremity since June 15, 2011. 5. Entitlement to an initial rating in excess of 10 percent for radiculopathy in the right upper extremity. 6. Entitlement to a rating in excess of 10 percent for temporomandibular joint (TMJ) dysfunction for the period from October 28, 2008 to July 12, 2010. 7. Entitlement to a rating in excess of 20 percent for TMJ dysfunction for the period since July 13, 2010. 8. Entitlement to a rating in excess of 30 percent for headaches. 9. Entitlement to service connection for a sleep disorder, characterized as sleep apnea, to include as secondary to a service-connected disability. 10. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1986. This matter is on appeal from rating decisions in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, and in December 2009 by the RO in Huntington, West Virginia. Jurisdiction over the appeal is currently with the RO in Lincoln, Nebraska. The Veteran testified before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. The Board notes at the outset that the assigned ratings for the Veteran's service-connected cervical spine disability, the neuropathy in his upper left extremity and his TMJ disorder were increased during the course of the appeal. However, in each case, he was not granted the maximum ratings allowable. As a consequence, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Corchado v. Derwinski, 1 Vet. App. 160 (1991). While the Veteran has submitted a claim for what he characterized as "sleep problems," the nature of this claim has changed somewhat during the course of the appeal. Specifically, when this claim was denied in an October 2009 rating decision, the RO noted that a similar claim had been denied in September 2007 and, as new and material evidence had not been submitted, the claim could not be reopened. While it appears that the claim of "sleep problems" was originally characterized as psychiatric in nature, the evidence of record instead suggested that his claim was one for sleep apnea, and the claim was recharacterized as such. This was appropriate, based on the evidence of record and the fact that any psychiatric-based sleep complaints may be adequately addressed in his separate claim for service connection for an acquired psychiatric disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (it is VA policy that a veteran's claims be interpreted broadly, in order to maximize the benefits available to him or her); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a service connection claim for an acquired psychiatric disorder encompasses all symptoms reasonably related to the claimed disorder). Since a claim for sleep apnea has not been previously adjudicated, it is an original claim, and new and material evidence is not required. Finally, when the Veteran testified before the Board in March 2012, one of the identified issues on appeal was entitlement to an "initial compensable rating from May 10, 2007 to October 27, 2008, to a rating in excess of 10 percent from October 28, 2008 to July 12, 2010, and to a rating in excess of 20 percent from July 13, 2010 for temporomandibular myofascial pain dysfunction with external root resorption of teeth numbers seven through ten." See Hearing Transcript at p. 3. However, a review of the procedural history indicates that the issue should be limited only to entitlement to a rating in excess of 10 percent for TMJ dysfunction for the period from October 28, 2008 to July 12, 2010 and in excess of 20 percent for TMJ dysfunction for the period since July 13, 2010. Specifically, while the Veteran was granted service connection for TMJ dysfunction in a September 2007 rating decision, with a noncompensable rating, effective May 10, 2007, this decision was not appealed and became final one year later. Cf. Buie v. Shinseki, 24 Vet. App. 242 (2011). Instead, when the Veteran submitted a claim seeking an increase for his TMJ dysfunction on October 8, 2008, this was a new claim for an increased rating, and the period on appeal runs from this point. The characterization of this issue in the RO's decision documents is consistent with this conclusion. Moreover, the Board does not assume jurisdiction of the period prior to October 8, 2008 simply because the claim was misidentified at the hearing in March 2012. The issues are recharacterized accordingly. FINDINGS OF FACT 1. Prior to June 15, 2011, the Veteran's cervical spine disability has been characterized by stiffness and pain in motion; limitation of flexion to 15 degrees or less or favorable ankylosis of the cervical spine has not been shown. 2. Since June 15, 2011, the Veteran's cervical spine disability has been characterized by pain in motion and an observed range of motion to only 10 degrees of forward flexion; unfavorable ankylosis of the cervical spine has not been shown. 3. For the period prior to June 15, 2011, the neurological symptoms in the Veteran's left upper extremity were characterized by symptoms such as tingling and numbness; incomplete paralysis that is "moderate" in nature was not shown. 4. For the period since June 15, 2011, the neurological symptoms in the Veteran's left upper extremity were characterized by some weakness in grip and some loss of sensation perception; incomplete paralysis that was "severe" in nature was not shown. 5. For the entire period on appeal, the neurological symptoms in the Veteran's right upper extremity were characterized by symptoms such as tingling and numbness; incomplete paralysis that is "moderate" in nature was not shown. 6. For the period from October 28, 2008 to July 12, 2010, the Veteran's TMJ dysfunction was characterized by some subluxation and an incisal range of motion of 32 mm; an inter-incisal range of motion from 21 to 30 mm has not been shown. 7. For the period since July 13, 2010, the Veteran's TMJ dysfunction was characterized by some subluxation and an incisal range of motion of 27 mm; an inter-incisal range of motion from 11 to 20 mm has not been shown. 8. For the entire period on appeal, the Veteran's headaches were characterized by daily headaches and episodes that were "incapacitating" approximately one to two times per month; headaches that are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. 9. Sleep apnea was not shown in service or for many years thereafter, and is unrelated to active duty service or to a service-connected disability. 10. A diagnosed acquired psychiatric disorder is not currently shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine prior to June 15, 2011, 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 Code 5242 (2012). 2. The criteria for an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine since June 15, 2011, 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, DC 5242 (2012). 3. The criteria for a disability rating in excess of 10 percent for radiculopathy in the left upper extremity prior to June 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8515 (2012). 4. The criteria for a disability rating in excess of 20 percent for radiculopathy in the left upper extremity since June 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8515 (2012). 5. The criteria for a disability rating in excess of 10 percent for radiculopathy in the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8515 (2012). 6. The criteria for a disability rating in excess of 10 percent for TMJ dysfunction for the period from October 28, 2008 to July 12, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59, 4.150, DC 9905 (2012). 7. The criteria for a disability rating in excess of 20 percent for TMJ dysfunction for the period since July 13, 2010, have not been met 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59, 4.150, DC 9905 (2012). 8. The criteria for a disability rating in excess of 30 percent for headaches have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8100 (2012). 9. Sleep apnea was not incurred in or aggravated by service, and is not related to service or to a service-connected disability. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). 10. An acquired psychiatric disorder was not incurred in or aggravated by service, is not related to service or to a service-connected disability, and is not currently shown. 38 U.S.C.A. §§ 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, and none is found by the Board. Indeed, the Veteran's cervical spine and neuropathy 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. 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). As for the remaining claims on appeal, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2008 and June 2009 that fully addressed all notice elements and was sent prior to the initial RO decisions in this matter. The letters 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 statements in support of his claim, including one from a nurse practitioner with whom he works. Next, VA examinations with respect to the issues on appeal were also obtained in December 2008, June 2009, November 2009, April, July and November 2010, as well as June 2011. 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. The Board does note that the VA examiner who produced the examination report for the Veteran's headache claim in November 2010 did so over the telephone, and apparently did not conduct an in-person examination. While this may be significant in some situations, it is not in this case, given that the symptoms would be based on the Veteran's own description rather than on objective observation. As such, the fact that the examination was performed over the telephone does not render the examination inadequate, per se. Additionally, when the VA examiner in August 2010 provided the opinion regarding the Veteran's sleep apnea, he stated that the Veteran's service treatment records or private treatment records were not reviewed. This is of no consequence in this case, as he was not asked to provide an opinion regarding the relationship between active duty service and the Veteran's current complaints. Moreover, there were no relevant private treatment records in the claims file addressing his sleep apnea. In other words, all evidence that was relevant to that specific claim was reviewed, and the opinion was based on a sufficient understanding of all relevant evidence. Accordingly, the Board finds that VA's duty to assist with respect to obtaining the appropriate VA examinations and opinions with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in March 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 how his cervical spine and neurological disorders affect his daily living, and specific nature of his TMJ dysfunction. While the Board erroneously stated the relevant period on appeal for his TMJ disorder claim, the entire relevant period on appeal was covered, and there is no prejudice to the Veteran in this regard. Hence, no further notice or assistance 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). 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). A 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 the 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). 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, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). On the other hand, 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). Cervical Spine and Neuropathy in the Upper Extremities In a December 2009 rating decision, the Veteran was granted entitlement to service connection for a cervical spine disability with a 10 percent rating under 38 C.F.R. § 4.71a, DC 5242 (addressing degenerative arthritis of the spine), effective May 10, 2007. Twin 10 percent ratings were additionally assigned for neurological symptoms in the upper extremities, also effective May 10, 2007. In a subsequent rating decision in October 2010, the Veteran's disability ratings were increased to 30 percent for his cervical spine and 20 percent for radiculopathy in the left upper extremity, effective June 15, 2011. The Veteran disagrees with the assigned ratings following the initial grant of service connection. The Board first addresses the assigned ratings for the Veteran's cervical spine. For the period prior to June 15, 2011, a rating in excess of 10 percent is warranted when the evidence indicates either: * Limitation of flexion of the cervical spine to 15 degrees or less; or * Favorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a, DC 5242 (30 percent). For VA compensation purposes, normal forward flexion and extension of the cervical spine is from zero to 45 degrees, left and right lateral flexion from zero to 45 degrees, and left and right lateral rotation from zero to 80 degrees. See Plate V, 38 C.F.R. § 4.71a. Based on the evidence of record, a rating in excess of 10 percent is not warranted for the Veteran's cervical spine disability prior to June 15, 2011. Specifically, while he has complained of "stiffness" in the neck, there was no indication that his complaints are so significant such that an increased rating is warranted prior to that date. For example, during outpatient evaluations in January and May 2008, he complained of neck pain, but there was no indication that he experienced any limitation of motion. Next, at a neurosurgery clinic note in February 2009, the Veteran complained of continued pain in his neck, which he described as "popping." Upon examination, his neck was tender upon palpation, and there was "some limited range of motion." While it is true that no specific ranges of motion were recorded, this physician's observations do not indicate that the limitation of motion was significant and, in any event, his ability to move his cervical spine precludes a finding of ankylosis. Significantly, the Veteran underwent a VA examination in November 2009 that was specifically directed toward his cervical spine complaints. On that occasion, he stated that he has experienced neck pain since active duty, and has been treated with epidural injections with only limited benefit. He described his pain as "persistent constant pain" accompanied by "catching" and grinding when he turned his head quickly. He also stated that his neck condition caused him some difficulty sleeping. Upon examination, the Veteran's cervical spine was characterized by pain in motion and some tenderness. However, upon range of motion testing, he was still limited by pain to only 25 degrees of flexion. Since the time of the November 2009 VA examination, the Veteran underwent an evaluation in February 2010, where he continued to complain of neck pain, especially when he rotates his head. However, while he has continued to experience limited range of motion, there was no indication that his range of motion was so diminished to the point such that an increased rating would be warranted. Overall, the evidence indicates that the Veteran experiences neck pain, and that it does impact his range of motion to some extent. However, there is insufficient evidence to indicate that this limitation of motion was such that he was exhibiting flexion of 15 degrees or less and there has never been an indication of ankylosis of any sort. Therefore, a rating in excess of 10 percent is not warranted prior to June 15, 2011. Next, in an October 2010 rating decision, the disability rating for the Veteran's cervical spine disability was increased to 30 percent, effective June 15, 2011. In order to warrant a rating in excess of 30 percent for degenerative arthritis of the cervical spine, the evidence must show unfavorable ankylosis of the cervical spine. See 38 C.F.R. § 4.71a, DC 5242 (40 percent). After a review of the evidence, the Board determines that a rating in excess of 30 percent is not warranted for the period since June 15, 2011. Specifically, when the Veteran underwent a VA examination in June 2011, he complained that he experienced daily neck pain with a history of fatigue, decreased motion and stiffness. Upon examination, his head was in a normal position, and there was no evidence of abnormal spinal curvature. His range of motion was more diminished that it had been previously, and was now limited by pain to only 10 degrees of flexion and extension. Significantly, however, ankylosis of any form (either favorable or unfavorable) has not been shown. Therefore, a rating in excess of 30 percent for the period since June 15, 2011 is not warranted. In so concluding, 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 v. Brown, 8 Vet. App. 202, 206-07 (1995). However, increased evaluations for the Veteran's service-connected cervical spine disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the 10 and 30 percent ratings already assigned. Notably, the VA examiners specifically considered the impact that pain has on his cervical spine disability and the extent to which it additionally impacts motion. Moreover, as a rating in excess of 30 percent requires ankylosis rather than restricted range of motion, the Deluca criteria cannot be used to achieve the higher rating. See Johnson v. Brown, 9 Vet. App. 7 (1996). In addition to the rating criteria mentioned above, an increased rating may also be warranted for intervertebral disc syndrome in the cervical spine based on incapacitating episodes brought on by the disability. However, as the evidence does not indicate that the Veteran has intervertebral disc syndrome, an increased rating on this basis is not for application. In any event, there is no evidence that the Veteran has experienced incapacitating episodes (that is, requiring periods of bed rest that is prescribed by a physician). To the contrary, a history of incapacitating episodes was specifically noted to be absent at his VA examination in June 2011. Therefore, an increased rating based on incapacitating episodes is not for application. Next, when evaluating the extent of the Veteran's cervical spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is only a sensory deficit, the rating should be considered "mild," or at most, "moderate" in degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, should be that for "moderate" incomplete paralysis. 38 C.F.R. § 4.124. In this case, the Veteran has been in receipt of separate 10 percent ratings for the neurological abnormalities in his upper extremities, effective May 10, 2007. Moreover, in an October 2011 rating decision, his rating for neuropathy in the left upper extremity (his non-dominant side) was increased to 20 percent, effective June 15, 2011. All ratings were assigned under 38 C.F.R. § 4.124a, DC 8515 (addressing paralysis of the median nerve). In order to warrant increased ratings for neurological symptoms in the upper extremities, the evidence must show: * Complete paralysis, characterized by the hand being inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances (70 percent for the dominant side, 60 percent for the non-dominant side); or * Incomplete paralysis that is: - Severe (50 percent for the dominant side, 40 percent for the non-dominant side); - Moderate (30 percent for the dominant side, 20 percent for the non-dominant side); or - Mild (10 percent). See 38 C.F.R. § 4.124a, DC 8515. While this diagnostic code does not define nonspecific words such as "mild," "moderate," or "severe," the Board must evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6. As an initial matter, some of the evidence places into doubt that the neurological symptoms in the Veteran's upper extremities was actually due to cervical spine radiculopathy. Specifically, a nerve conduction study in June 2008 indicated the neuropathy of the Veteran's left upper extremity was due to carpal tunnel syndrome, a nonservice-connected disorder, rather than to his cervical spine disability. In January 2009, while he complained of arm pain, the evaluating physician observed that it was potentially due to a rotator cuff injury rather than to his cervical spine disability. More recently, an evaluating physician in September 2010 noted that there was "no evidence of cervical radiculopathy at this time" and, at a VA examination in June 2011, radiographic imaging revealed no neural impingement. However, despite the fact that the Veteran's neurological symptoms may be attributable to disorders other than cervical spine radiculopathy, the evidence does not indicate that the neurological symptoms in the Veteran's upper extremities warrant ratings in excess of those currently assigned in any event. First, prior to June 15, 2011, neither upper extremity exhibited incomplete paralysis that could be considered "moderate" in nature. For example, in May 2008, while the Veteran complained of a "shooting pain" in his left arm, his strength was observed to be normal at that time in all extremities and his sensation was intact throughout. At a later evaluation that same month, he exhibited only mild weakness in the left upper extremity (rated by the evaluating physician as 4+/5). No apparent weakness was observed in the right upper extremity. At two evaluations in February 2009, the Veteran stated that he continued to experience pain in the arms with intermittent numbness in the hands. While motor testing did indicate some breakaway weakness in the right upper extremity, his sensation perception was intact, as were his reflexes. In November 2009, the Veteran underwent a VA examination that was specifically directed toward his neurological complaints. On that occasion, a detailed motor examination was largely normal in the left upper extremity and only slightly diminished in the right upper extremity. While sensation perception was observed to be diminished, it was only slightly so. Reflexes were normal in the left upper extremity and only slightly diminished in the right upper extremity. In February 2010, the Veteran stated that his neurological symptoms prevented him from partaking in certain recreational activities, such as pulling a bow. He also complained of certain levels of numbness in the upper extremities. However, upon examination, his motor functioning was observed to be only mildly diminished. Moreover, nerve conduction testing in September 2009 indicated that his neurological symptoms in the upper extremities had in fact improved when compared to previous studies. Given this evidence, the Board determines that the neurological symptoms in the Veteran's upper extremities should be characterized as "mild" at best, despite the fact that there is a considerable amount of evidence to suggest that much of his symptomatology is due to nonservice-connected disorders. Therefore, a rating in excess of 10 percent is not warranted for the neurological symptoms in either upper extremity prior to June 15, 2011. Next, when the RO increased the disability rating for the neurological symptoms in the left upper extremity to 20 percent in its October 2011 decision, this was clearly based on the results of a VA examination conducted on June 15, 2011, the date the increase in rating became effective. However, the evidence does not indicate that a rating in excess of 20 percent is warranted nor does the evidence indicate that a rating in excess of 10 percent for the symptoms in his right upper extremity is warranted, since that date. Specifically, at the time of that VA examination, the Veteran exhibited weakness bilaterally. However, there was only mild diminishment in reflexes. Moreover, while there was some mild diminishment in motor functioning in the left upper extremity, it does not appear to be at a level where it is "moderate" in severity. Notably, the motor functioning in his right upper extremity was normal. Based on this evidence, the Board determines that a rating in excess of 10 percent is not warranted for the neurological symptoms in either extremity prior to June 15, 2011. Moreover, the evidence does not indicate that a rating in excess of 10 percent for the right upper extremity and 20 percent for the left upper extremity is warranted from this date. Finally, the evidence does not indicate that the Veteran experiences any other potentially related neurological disorders, such as bowel or bladder dysfunction or any pathology to the cranial nerves. Therefore, no ratings are warranted above and beyond those already assigned. TMJ Dysfunction For the period from October 28, 2008 to July 12, 2010, the Veteran's TMJ dysfunction was assigned a 10 percent rating under 38 C.F.R. § 4.150, DC 9905 (addressing limited articulation of the TMJ). In order to warrant a rating in excess of 10 percent, the evidence must show limitation of inter-incisal range of motion from 21 to 30 mm. Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted prior to July 13, 2010. Specifically, the Veteran underwent a VA examination in December 2008 that was directed specifically toward his jaw complaints. On that occasion, he complained of pain in the TMJ bilaterally, sometimes to a 10/10 level. He also complained of subluxation of the mandible that required external manipulation in order to resolve. Upon examination, he displayed an incisal range of motion of 32 mm, a right lateral excursion of 5 mm and a left lateral excursion of 8 mm. His jaw muscles were somewhat tender upon palpation and "significant lateral translation" was noted in the left TMJ on auscultation and palpation. 38 C.F.R. § 4.150, DC 9905. However, while there were some symptoms of TMJ pain and audible clicking when the TMJ is moved, the range of incisal range of motion was still in excess of 30 mm and, as such, a rating in excess of 10 percent is not warranted prior to July 13, 2010. Next, in a September 2010 rating decision, the Veteran's assigned rating for his service-connected TMJ disorder was increased to 20 percent, effective July 13, 2010. In order to warrant a rating in excess of 20 percent since that date, the evidence must show limitation of TMJ articulation to 11 to 20 mm. Based on the evidence of record, such limitation has not been shown, and a rating in excess of 20 percent is not warranted. Specifically, the Veteran underwent a new VA examination in July 2010, where he complained of discomfort in the TMJ bilaterally to a level of 8/10. However, his use of a maxillary orthopedic appliance at night alleviated some symptoms. Upon examination, his TMJ range of motion was limited to 27 mm of incisal articulation, 4 mm of left lateral excursion and 6 mm of right lateral excursion. In addition to the VA examination, the evidence also includes an outpatient treatment note from September 2009, where he complained that his TMJ "pops out of joint" when opening his mouth wide. As was the case with the Veteran's cervical spine disability, 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 v. Brown, 8 Vet. App. 202, 206-07 (1995). However, increased evaluations based on functional limitations are not warranted. Specifically, although the Veteran has experienced what he characterizes as subluxation, and other episodes of clicking, there is no indication that his jaw is limited in such daily functions as chewing or speaking. As such, although the evidence since July 13, 2010 indicated a worsening of symptoms since that date, the evidence does not establish that a rating in excess of 20 percent is warranted. Notably, his incisal articulation is not so inhibited so as to warrant such a rating. Therefore, a rating in excess of 10 percent prior to July 13, 2010 and a rating in excess of 20 percent since that date are not for application. Headaches Throughout the entire course of the appeal, the Veteran has been assigned a 30 percent disability rating for his headaches under 38 C.F.R. § 4.124a, DC 8100 (addressing migraines). In order to warrant a rating in excess of 30 percent, the evidence must show very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. In this case, the Board determines that a rating in excess of 30 percent is not warranted, as his headaches are not of the severity necessary to warrant an increased rating. Specifically, at a VA examination December 2008, the Veteran stated that he experienced headaches that were in the occipital area, and which occur "at least once a day" and last hours or "even days." He also stated that he missed work on one occasion due to them. At a second VA Examination in April 2010, the Veteran stated that he experiences headaches on a daily basis, but experiences headaches that he characterized as "incapacitating" approximately one or two times per month. While there was no nausea associated with these headaches, they did cause some photophobia. At another VA examination in November 2010, which was held over the telephone, the Veteran again complained of headaches on a daily basis. Although he works full-time, he has been forced to miss work approximately 3 to 4 days per month, and had to typically leave work early on other additional occasions. When his headaches become "incapacitating," as he described them, he experiences bouts of lethargy. Although the Veteran underwent three VA examinations, there are very few outpatient treatment notes that discuss his headaches. However, the record does include a May 2012 statement from a nurse who works with the Veteran, where she described the Veteran's headaches as "almost incapacitating," and which make him irritable and short-tempered. It is clear from the evidence of record that the Veteran has regular headaches that impact his daily living. However, the evidence does not indicate that his headaches are of such severity that an increased rating would be warranted. Specifically, it is clear that his headaches, while significant, are not causing economic inadaptability to a severe level. To the contrary, he appears to maintain a relatively routine work schedule. Moreover, there is insufficient evidence to indicate that the headaches are "completely prostrating," but are rather indicative of bouts of lethargy. Therefore, the Board concludes that a rating in excess of 30 percent is not warranted for the Veteran's headaches. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his service-connected disabilities are worse than the ratings he currently receives. It is specifically noted that the Veteran was able to testify at a hearing before the Board in March 2012, where he described his symptoms in great detail and how they affect his daily functioning. 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 the disabilities on appeal according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have 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 Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board first notes that since the assigned ratings for musculoskeletal disabilities must also include the impact of functional limitation, the assignment of the appropriate rating already contemplates many factors that are outside the specific rating criteria. As such, only in the most unusual circumstances would the rating criteria for musculoskeletal disabilities (to include cervical spine and TMJ disabilities) ever be inadequate, and such unusual circumstances are not shown here. Similarly, when considering neurological disabilities that apply terms such as "mild," "moderate" or "severe," these terms are so general that virtually any relevant information could be (and was) considered. Moreover, 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). Additionally, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. Specifically, the Board discussed the impact of the Veteran's headaches on his employment, and has also considered the impact of his TMJ disorder on his daily life. 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). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability due specifically to his service-connected disabilities. In fact, the evidence indicates that he is currently employed. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Based on evidence of record, the Board determines that increased ratings for his cervical spine, neurological symptoms in the upper extremities, headaches and TMJ dysfunction are not warranted for any period on appeal. As such, the appeal is denied to this extent. 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). As is relevant here, sleep apnea or non-psychotic psychiatric disorders are not considered chronic diseases under 38 C.F.R. § 3.309(a), 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). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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). In this case, the Veteran is claiming entitlement to service connection for a sleep disorder, characterized as sleep apnea, and an acquired psychiatric disorder. As an initial matter, the service treatment records that are available do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea or any sort of psychiatric disorder while in-service. Significantly, the Veteran's separation physical examination in October 1985 fails to document any complaints of or observed symptoms related to either sleep apnea or a psychiatric disorder, and he specifically denied any "nervous trouble" of any sort. Next, regarding his sleep apnea, the post-service evidence does not reflect symptoms related to sleep apnea until many years after the Veteran left active duty service. Specifically the first indication of sleep apnea was not until March 2010, when he was observed to have "sleep disordered breathing." However, the Board emphasizes that this first indication of sleep apnea is approximately 24 years after he left active duty. Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that his sleep apnea is related to service. As for the Veteran's claim of a psychiatric disorder, the evidence has not established that such a disorder clinically exists. Specifically, no treating physician has identified such a disorder and a VA examiner who examined the Veteran on two occasions in May 2009 and April 2010 determined that he did not meet the diagnostic criteria for an acquired psychiatric disorder of any sort. In view of that evidence, the Board concludes that a diagnosable acquired psychiatric disorder is not clinically shown. 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. Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's sleep apnea to active duty or to his service-connected disabilities, despite his contentions to the contrary. First, no treating medical professional has asserted that the Veteran's sleep apnea is directly related to his active duty service, nor has any of the other evidence suggested such a relationship. As for whether his sleep disorder is related to his service-connected TMJ dysfunction or cervical spine disability, the Board places significant value on the opinions of a VA examiner who evaluated the Veteran's symptoms in August 2010. On that occasion, the examiner noted that sleep apnea was originally identified via polysomnogram in May 2010, and he was issued a CPAP (continuous positive airway pressure) machine to control the symptoms. The examiner also noted that the Veteran's description of his symptoms was not indicative of an airway obstruction that would be due to either TMJ dysfunction or a cervical spine disorder. After the examination was completed, the examiner provided the opinion that it was less likely than not that the Veteran's sleep apnea was due to a service-connected disability. In providing this opinion, the examiner reflected that sleep apnea is due to upper airway resistance and, based on the Veteran's description of his symptoms, his upper airway was not impacted by his cervical spine or TMJ disorders. Moreover, there was no medical basis to support the proposition that such a relationship would exist. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his sleep apnea and/or psychiatric symptoms to his service-connected disabilities or active service. 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 existence or etiology of sleep apnea or an acquired psychiatric 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 claimed disorders are found to lack competency. It is true that the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran has not truly asserted that either sleep apnea or an acquired psychiatric disorder has continued since active duty. Moreover, to the extent that the Veteran has complained of symptoms in conjunction with other service-connected disabilities, a number of treating professionals, including a VA examiner, have considered the Veteran's statements and nevertheless concluded that no relationship existed. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim 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 10 percent for degenerative disc disease of the cervical spine prior to June 15, 2011, is denied. An initial rating in excess of 30 percent for degenerative disc disease of the cervical spine since June 15, 2011, is denied. An initial rating in excess of 10 percent for radiculopathy in the left upper extremity prior to June 15, 2011, is denied. An initial rating in excess of 20 percent for radiculopathy in the left upper extremity since June 15, 2011, is denied. An initial rating in excess of 10 percent for radiculopathy in the right upper extremity is denied. A rating in excess of 10 percent for TMJ dysfunction for the period from October 28, 2008 to July 12, 2010, is denied. A rating in excess of 20 percent for TMJ dysfunction for the period since July 13, 2010, is denied. A rating in excess of 30 percent for headaches is denied. Service connection for a sleep disorder, characterized as sleep apnea, is denied. Service connection for an acquired psychiatric disorder is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs