On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana
THE ISSUE
1. Entitlement to an initial evaluation in excess of 10
percent for residuals of a gunshot wound to the right foot,
with a third metatarsal fracture and a retained foreign body.
2. Entitlement to an initial evaluation in excess of 10
percent for low back strain.
REPRESENTATION
Appellant represented by: Sean Kendall, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from October 1974 to March
1979 and from August 1984 to February 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana in July 1994 and December 2001.
In a May 1998 decision, the Board denied the veteran's claim
for an initial evaluation in excess of 10 percent for
residuals of a gunshot wound to the right foot, with a third
metatarsal fracture and a retained foreign body. The veteran
appealed this denial to the United States Court of Appeals
for Veterans Claims (Court), and the Court vacated and
remanded this case in an October 1999 memorandum decision.
The Board subsequently remanded this case back to the RO in
June 2000 and February 2004.
As to the claim for an initial evaluation in excess of 10
percent for low back strain, the Board denied this claim in
an October 2002 decision. The veteran also appealed this
denial, and, in January 2003, the Court granted a joint
motion of the veteran and the Secretary of Veterans Affairs
to vacate and remand the Board's decision. The Board
subsequently remanded this case back to the RO in February
2004.
FINDINGS OF FACT
1. All relevant evidence necessary to render a decision on
the veteran's claims has been obtained by the RO, and the RO
has notified him of the type of evidence needed to
substantiate his claims.
2. The veteran's residuals of a gunshot wound to the right
foot, with a third metatarsal fracture and a retained foreign
body, encompass moderate limitation of toe motion, without
pain; tenderness; and subjective complaints of pain.
3. The veteran's low back strain is productive of moderate
limitation of motion, subjective complaints of pain, and a
loss of agility during flare-ups.
CONCLUSION OF LAW
1. The criteria for an initial evaluation in excess of 10
percent for residuals of a gunshot wound to the right foot,
with a third metatarsal fracture and a retained foreign body,
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.56,
4.71 (Diagnostic Code 5283), 4.73 (Diagnostic Code 5310)
(2004); 38 C.F.R. §§ 4.56, 4.73 (1996).
2. The criteria for an initial 20 percent evaluation for low
back strain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45,
4.71, Diagnostic Codes 5235-5243 (2004); 38 C.F.R. § 4.71a,
Diagnostic Code 5295 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. VA's duties
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. Regulations implementing the VCAA
have since been published. 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a). The VCAA and implementing regulations apply
in the instant case, and the requirements therein appear to
be met.
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claims,
and no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claims. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. Specifically, the RO has afforded the
veteran multiple VA examinations addressing his service-
connected disorders, and there is no indication of additional
medical records, or other evidence, that the RO should have
obtained at this time.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claims in letters issued in March 2003 and in May 2004.
By these letters, the RO also notified the veteran of exactly
which portion of that evidence was to be provided by him and
which portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Additionally, the veteran was advised to submit additional
evidence to the RO, and the Board finds that this instruction
is consistent with the requirement of 38 C.F.R. § 3.159(b)(1)
that VA request that a claimant provide any evidence in his
or her possession that pertains to a claim.
The Board also notes that, in Pelegrini v. Principi, 18 Vet.
App. 112 (2004) (Pelegrini II, which replaced the opinion in
Pelegrini v. Principi, 17 Vet. App. 412 (2004)), the United
States Court of Appeals for Veterans Claims (Court) held that
a VCAA notice must be provided to a claimant before the
"initial unfavorable [agency of original jurisdiction (AOJ)]
decision on a service-connection claim." In Pelegrini II,
the Court also made it clear that where notice was not
mandated at the time of the initial RO decision, the RO did
not err in not providing such notice complying with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) because an
initial RO decision had already occurred. See also
VAOPGCPREC 7-2004 (July 16, 2004).
Here, the veteran was notified of VA's duties under the VCAA
subsequent to the appealed rating decisions. However, as
indicated above, the RO has taken all necessary steps to both
notify the veteran of the evidence needed to substantiate his
claims and assist him in developing relevant evidence.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claims in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would result only in additional
delay with no benefit to the veteran. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
II. Applicable laws and regulations
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. Ratings
are based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases
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). However, in cases in which a claim for a higher
initial evaluation stems from an initial grant of service
connection for the disability at issue, as here, multiple
("staged") ratings may be assigned for different periods of
time during the pendency of the appeal. See generally
Fenderson v. West, 12 Vet. App. 119 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. See 38 C.F.R. § 4.7.
III. Right foot
During service, in August 1992, the veteran sustained a
gunshot wound to the right foot. He was hospitalized from
August to September of 1992 and underwent open irrigation and
debridement of the wound, fixation of the third metatarsal,
and a delayed primary closure of the wound. X-rays from
October 1992 revealed a shattered third metatarsal with
metallic fragments within the soft tissue. This fracture was
comminuted and in the distal right third metatarsal.
During a June 1994 VA spine examination, the veteran reported
that his right foot wound had healed, with irritation only
after repetitive use. The examination revealed no postural
or fixed deformities of the right foot, and the veteran could
walk on his toes and on his heels for a distance of ten feet
without difficulty. There was no neurovascular impairment
from the veteran's wound, and the foot was completely normal
to palpation. The contour of the foot was normal. Range of
motion of the foot and ankle were normal, compared with the
left side. In rendering a diagnosis, the examiner noted that
the veteran's right foot was well-healed and exhibited no
evidence of impairment.
Based on these findings, the RO, in a July 1994 rating
decision, granted service connection for residuals of a
gunshot wound of the right foot with a fracture of the third
metatarsal and assigned a zero percent evaluation, effective
from April 1994.
The veteran reported continued irritation, swelling, and
"hot shoot pains" in the right foot during his January 1996
VA hearing. Subsequently, in May 1996, the hearing officer
granted a 10 percent evaluation for the veteran's disorder,
effective from April 1994.
During his September 1997 VA foot examination, the veteran
reported right foot pain after sustained jogging. The
examination revealed normal posture and a normal heel and toe
gait walking for about ten feet. Two surgical scars, one
measuring two centimeters and the other measuring four to
five centimeters over the dorsal surface along the metatarsal
areas, were noted. There was no deformity, tenderness, skin
or vascular changes, or weakness of the regional muscle
groups. Range of motion of all toes was normal and painless.
X-rays revealed no change in the metallic foreign bodies in
the right forefoot and no significant change in the healed
third metatarsal fracture.
The veteran underwent a further VA foot examination in May
2002, during which he reported pain and swelling of the right
foot with vigorous activity. The examination revealed normal
sensation of the feet, with well-healed dorsal incisions from
his previous injury. The veteran had normal flexion at his
second through fifth metatarsophalangeal joints to 60
degrees, as well as extension to 30 degrees. There was no
numbness of tingling in any of the toes and normal sensation.
The examination was also negative for tenderness and pain in
the metatarsal heads and for obvious deformity of the foot.
The veteran was able to do a single straight leg raise on the
foot without any obvious pain or limitation. The examiner
noted that, in view of the spine and foot symptoms, the
veteran could do moderate activities, but vigorous activities
were significantly limited.
In a September 2002 statement, Craig N. Bash, M.D., noted
that the veteran's spine sciatica (foot pains) and back
spasms were "under-rated" and that a 60 percent evaluation
was in order. Dr. Bash indicated that the veteran had pain
radiating to the right foot and back spasms which had
required nearly constant use of muscle relaxants since the
initial injury.
The veteran underwent a further VA feet examination in July
2004, during which he described right foot pain, as much as
"a 7 out of 10," with lifting objects over fifty pounds and
walking over one mile. He also reported swelling on the
dorsal aspect of the right foot and noted that he could not
move the foot at all during flare-up periods. He stated that
he was currently working as a teacher and had difficulty
moving audio and video equipment. The examination revealed a
two centimeter dorsal incision over the second metatarsal, a
four centimeter dorsal incision over the fourth metatarsal,
and a one-half centimeter plantar incision ball under the
second metatarsal. The foot was otherwise normal in
appearance. Range of motion of the right ankle revealed
dorsiflexion to zero degrees with no pain, plantar flexion to
50 degrees with no pain, inversion to 35 degrees with no
pain, and eversion to 15 degrees with no pain. Range of
motion studies of the toes revealed right great
metatarsophalangeal flexion to 20 degrees and extension to 10
degrees, right second metatarsophalangeal flexion to 20
degrees and extension to 10 degrees, right third
metatarsophalangeal flexion to 20 degrees and extension to 20
degrees, right fourth metatarsophalangeal flexion to 20
degrees and extension to 20 degrees, right fifth
metatarsophalangeal flexion to 20 degrees and extension to 20
degrees, right interphalangeal great toe flexion to zero
degrees actively and to 45 degrees passively, right proximal
interphalangeal second toe flexion to zero degrees actively
and to 35 degrees passively, right proximal interphalangeal
third toe flexion to 35 degrees actively and passively, right
proximal interphalangeal fourth toe flexion to 35 degrees
actively and passively, and right proximal interphalangeal
fifth toe flexion to 35 degrees actively and passively. The
examiner noted that all motions were performed without pain.
There was no evidence of edema, weakness, or impairment of
propulsion thrust in walking, but the examiner did note mild
tenderness over incision sites on the right foot on deep
palpation. The veteran could walk for up to a mile and stand
for up to an hour. No other abnormalities of the feet were
noted on examination. X-rays revealed metallic foreign
bodies and an old fracture deformity of the right third
metatarsal, with no acute abnormalities.
The RO has evaluated the veteran's right lower extremity
fascial defect at the 10 percent rate under the criteria of
both 38 C.F.R. § 4.71a, Diagnostic Code 5283 and 38 C.F.R.
§ 4.73, Diagnostic Code 5310.
Under Diagnostic Code 5283, a 10 percent evaluation is
warranted for moderate malunion or nonunion of the tarsal or
metatarsal bones, while a 20 percent evaluation contemplates
moderately severe malunion or nonunion.
The Board notes that the criteria for evaluating muscle
injuries were revised during the pendency of this appeal,
effective from July 3, 1997.
Under both sets of criteria, Diagnostic Code 5310 concerns
Muscle Group X, which encompasses the intrinsic muscles of
the foot. Functions of these muscles include movements of
the forefoot and toes and propulsion thrust in walking.
Under this section, a 10 percent evaluation is warranted for
moderate disability of the muscles of Group X, while a 20
percent evaluation is in order for moderately severe
disability.
Under the prior rating criteria, a moderate muscle disability
was characterized by through and through or deep penetrating
wounds of relatively short track by a single bullet, small
shell, or shrapnel fragment, and such disability was also
characterized by residuals of debridement or prolonged
infection. The history of a moderate muscle disability
included hospitalization and consistent complaint from the
first examination forward of one or more of the cardinal
symptoms of muscle wounds, particularly fatigue and fatigue-
pain after moderate use, affecting the particular functions
controlled by the injured muscles. Objective findings
included linear or relatively small entrance and (if present)
exit scars indicating a short track of missile through muscle
tissue; signs of moderate loss of deep fascia or muscle
substance, or impairment of muscle tonus; and definite
weakness or fatigue in comparative tests. 38 C.F.R.
§ 4.56(b) (1996).
A moderately severe muscle disability was shown by evidence
of a through and through or deep penetrating wound by a high
velocity missile of small size or a large missile of low
velocity, with debridement, prolonged infection, or sloughing
of soft parts, and intermuscular cicatrization. History and
complaints of such an injury included a record of
hospitalization for a prolonged period for treatment of a
wound of severe grade and a record of consistent complaints
of cardinal symptoms of muscle wounds, including evidence of
an inability to keep up with work requirements. Objective
findings of a moderately severe muscle wound were relatively
large entrance and (if present) exit scars so situated as to
indicate the track of the missile through important muscle
groups; indications on palpation of moderate loss of deep
fascia, moderate loss of muscle substance, or moderate loss
of normal firm resistance of muscles compared with the sound
side; and tests of strength and endurance of muscle groups
involved (compared with the sound side) revealing positive
evidence of marked or moderately severe loss. 38 C.F.R.
§ 4.56(c) (1996).
Also, under the prior criteria, special consideration was
specifically warranted for the effect of missiles, muscle
weakness, muscle damage, and injuries to the deeper
structures of a body part. See 38 C.F.R. §§ 4.47, 4.51,
4.52, 4.72 (1996).
Under the revised rating criteria, effective from July 3,
1997, moderate disability of the muscles is shown by through
and through or deep penetrating wounds of short track by a
single bullet, small shell, or shrapnel fragment, without the
explosive effect of a high velocity missile, and with
residuals of debridement or prolonged infection. The history
of a moderate muscle disability includes service department
records of in-service treatment for the wound and a record of
consistent complaint of one or more of the cardinal signs and
symptoms of muscle disability, particularly a lowered
threshold of fatigue after use which affects the particular
functions controlled by the injured muscles. Objective
findings include small or linear entrance and (if present)
exit scars which indicate a short track of the missile
through muscle tissue, some loss of deep fascia or muscle
substance, impairment of muscle tonus and loss of power, or a
lowered threshold of fatigue when compared to the sound side.
38 C.F.R. § 4.56(d)(2) (2004).
A moderately severe disability of the muscles is shown by a
through and through or deep penetrating wound by a small high
velocity missile or a large low velocity missile, with
debridement, prolonged infection, or sloughing of soft parts,
and intermuscular scarring. History and complaints of this
injury include a record of hospitalization for a prolonged
period for treatment of a wound, a record of consistent
complaint of cardinal signs and symptoms of muscle
disability, and, if present, evidence of an inability to keep
up with work requirements. Objective findings of a
moderately severe muscle wound are entrance and (if present)
exit scars indicating the track of the missile through
important muscle groups; indications on palpation of moderate
loss of deep fascia, muscle substance, or normal firm
resistance of muscles compared with the sound side; and tests
of strength and endurance compared with the sound side
demonstrating positive evidence of impairment. 38 C.F.R.
§ 4.56(d)(3) (2004).
Additionally, under the revised rating criteria, the cardinal
signs and symptoms of muscle disability include loss of
power, weakness, a lowered threshold of fatigue, fatigue-
pain, impairment of coordination, and uncertainty of
movement. See 38 C.F.R. § 4.56(c) (2004).
The Board has considered the veteran's disability from both a
musculoskeletal and a muscle injury standpoint. In terms of
musculoskeletal symptoms, the veteran's disability is
productive of moderate limitation of the toe joints,
tenderness, and subjective complaints of pain. Range of
motion testing, however, revealed no pain in the individual
joints. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996);
38 C.F.R. §§ 4.40, 4.45. While Dr. Bash suggested that the
veteran's current disability evaluation was inadequate, he
mostly discussed lumbar spine symptoms (noted below).
Rather, the overall symptomatology of the right foot has, on
balance, been shown to be no more than moderately disabling.
As such, the current 10 percent evaluation under Diagnostic
Code 5283 remains appropriate.
There is also no evidence of severe unilateral flat foot,
with objective evidence of marked deformity, pain on
manipulation and use accentuated, an indication of swelling
on use, and characteristic callosities (20 percent under
Diagnostic Code 5276); unilateral claw foot, with all toes
tending to dorsiflexion, limitation of dorsiflexion of the
ankle to a right angle, shortened plantar fascia, and marked
tenderness under metatarsal heads (20 percent under
Diagnostic Code 5278); or a moderately severe foot injury (20
percent under Diagnostic Code 5284).
Regarding muscle injury, the veteran's chief symptoms have
been healed scars and tenderness. While several of the
veteran's scars are measured in terms of centimeters, they
are not accompanied by any loss of, or significant damage to,
muscle substance. Moreover, there is no evidence of
intermuscular scarring. As such, the Board finds this
disorder to be moderate rather than moderately severe in
degree, and an evaluation in excess of 10 percent under the
provisions of 38 C.F.R. § 4.73, both prior and revised, is
not warranted.
Overall, the preponderance of the evidence is against the
veteran's claim for an initial evaluation in excess of 10
percent for residuals of a gunshot wound to the right foot,
with a third metatarsal fracture and a retained foreign body,
and this claim must be denied. In reaching this
determination, the Board acknowledges that VA is statutorily
required to resolve the benefit of the doubt in favor of the
veteran when there is an approximate balance of positive and
negative evidence regarding the merits of an outstanding
issue. That doctrine, however, is not applicable in this
case because the preponderance of the evidence is against the
veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990); 38 U.S.C.A. § 5107(b).
IV. Low back strain
In a December 2001 rating decision, the RO granted service
connection for low back strain in view of a nexus opinion
included in a July 1999 VA examination report. A 10 percent
evaluation was assigned, effective from April 1994. Given
this early effective date, the Board has considered all
relevant evidence dating back to the initial claim.
During his June 1994 VA spine examination, the veteran
reported occasional back strain. The examination revealed
forward flexion to 90 degrees, extension to 30 degrees,
bilateral lateral bending to 35 degrees, right rotation to 35
degrees, and left rotation to 45 degrees. There was no
evidence of sciatica. The diagnosis was a history of
multiple low back strains, now with occasional problems with
chronic low back pain from a musculoskeletal standpoint but
without evidence of objective pathology on examination.
The veteran's July 1999 VA spine examination revealed lumbar
spine flexion to 90 degrees, extension to 30 degrees,
bilateral lateral bending to 35 degrees, and bilateral
rotation to 40 degrees. There was a "trace" of hamstring
tightness bilaterally. No neurological changes were noted.
There was mild tenderness to palpation in the midline lower
lumbar region, approximately at L3-L4. There was no
significant tenderness to the lumbar paraspinal muscles or
spasm. The diagnosis was chronic mechanical low back pain,
and the examiner related this disorder to in-service physical
activities. X-rays revealed facet sclerosis of L5-S1 but
were otherwise unremarkable.
During his May 2002 VA feet examination, the veteran reported
intermittent but increasing low back pain. An examination
revealed flexion to 90 degrees, extension to 20 degrees, and
side-to-side bending of 45 degrees. X-rays showed
intervertebral space narrowing at L4-L5 and L5-S1, with
vacuum disc formation at those sites; osteophyte formation in
the upper lumbar areas; and a minimal sclerotic response of
the articular facets, suggesting a left unilateral pars
defect. The assessment was a slight amount of worsening back
pain, mostly mechanical, with a slight amount of posterior
arthritis. There was no evidence of obvious radiculopathy,
weakness, or other myelopathic symptoms. The examiner noted
that, in view of the spine and foot symptoms, the veteran
could do moderate activities, but vigorous activities were
significantly limited.
In a September 2002 statement, Dr. Bash noted that the
veteran's spine sciatica (foot pains) and back spasms were
"under-rated" and that a 60 percent evaluation was in
order. Dr. Bash indicated that the veteran had pain
radiating to the right foot and back spasms which had
required nearly constant use of muscle relaxants since the
initial injury.
The veteran underwent a further VA spine examination in
August 2004, during which he complained of constant pain in
the back, flare-ups "of 6/10 in recent years," and rare
radiation of pain into the right inner thigh. He noted
severe flares twice in the past year for a couple of days, as
well as moderate flares on two occasions in the past year
varying in length depending on activity. No incapacitation
was noted. The examiner indicated that, during flare-ups,
the veteran's function was decreased in that he was not as
agile and had to limit activities (e.g., not able to bend or
stoop). The veteran reported that he was still working as a
teacher and had not missed work, but he was unable to move
boxes of books and equipment. There were no spinal
abnormalities in terms of alignment, symmetry, curvatures,
posture, gait, and symmetry and rhythm of spinal motion.
Range of motion testing revealed forward flexion to 65
degrees, extension to 19 degrees, bilateral lateral bending
to 20 degrees, and bilateral rotation to 20 degrees. The
examination was negative for tenderness, spasm, deformity,
scoliosis, and kyphosis. Sensory and motor examinations were
within normal limits. X-rays revealed disc space narrowing
at L5-S1, and the examiner diagnosed degenerative disc
disease of the lumbar spine.
During the pendency of this appeal, the criteria for
evaluating spine disorders have been substantially revised.
For the period through September 25, 2003, under 38 C.F.R.
§ 4.71a, Diagnostic Code 5295 (2003), a 10 percent evaluation
was warranted for lumbosacral strain with characteristic pain
on motion. A 20 percent evaluation was in order for muscle
spasm on extreme forward bending or loss of lateral spine
motion, unilateral, in the standing position. A 40 percent
evaluation contemplated severe symptoms, with listing of the
whole spine to the opposite side, positive Goldthwaite's
sign, marked limitation of forward bending in a standing
position, loss of lateral motion with osteoarthritic changes,
or narrowing or irregularity of joint space, or some of the
above with abnormal mobility on forced motion.
For the period beginning on September 23, 2002, a 10 percent
evaluation is warranted for intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
one week but less than two weeks during the past twelve
months. A 20 percent evaluation contemplates intervertebral
disc syndrome with incapacitating episodes having a total
duration of at least two weeks but less than four weeks
during the past twelve months. A 40 percent evaluation is
assigned in cases of incapacitating episodes having a total
duration of at least four weeks but less than six weeks
during the past twelve months.
Moreover, the remaining diagnostic criteria for evaluating
spine disorders have recently been revised, effective from
September 26, 2003. This further revision incorporates the
new criteria for evaluating intervertebral disc syndrome. 68
Fed. Reg. 51454-51458 (August 27, 2003).
Under these revisions, a 10 percent evaluation is in order
for forward flexion of the thoracolumbar spine greater than
60 degrees but not greater than 85 degrees; combined range of
motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; muscle spasm, guarding, or
localized tenderness not resulting in an abnormal gait or
abnormal spinal contour; or a vertebral body fracture with
loss of 50 percent or more of the height. A 20 percent
evaluation is warranted for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; a combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. A 40 percent evaluation is
in order for forward flexion of the thoracolumbar spine of 30
degrees or less, or favorable ankylosis of the entire
thoracolumbar spine.
Under these revisions, the "combined range of motion"
refers to the sum of forward flexion, extension, left and
right lateral flexion, and left and right rotation. The
normal combined range of motion of the cervical spine is 340
degrees and of the thoracolumbar spine is 240 degrees.
Associated objective neurological abnormalities (e.g.,
bladder and bowel impairment) are to evaluated separately.
The code section for intervertebral disc syndrome is now
5243.
The Board has considered the veteran's claim under all of the
aforementioned code sections but find no basis for an initial
evaluation in excess of 10 percent under those particular
sections. In this regard, the Board observes that current
symptoms include forward flexion exceeding 60 degrees and no
incapacitating episodes of intervertebral disc syndrome. The
Board also notes Dr. Bash's finding of muscle spasms, but the
veteran's VA examinations have been negative for this
symptom.
However, under the old provisions of 38 C.F.R. § 4.71a,
Diagnostic Code 5292, a 20 percent evaluation was assigned
for moderate limitation of motion of the lumbar spine. The
Board has considered the range of motion findings from the
veteran's August 2004 VA examination in conjunction with the
simultaneous finding of decreased back function and agility
during flare-ups. The Board also notes Dr. Bash's conclusion
that the veteran's back problems were "under-rated." See
38 C.F.R. §§ 4.40, 4.45. Taken together, these symptoms
reflect a lumbar spine picture that is more properly
described as "moderate" than as "slight" in degree.
This disability picture, however, is not "severe" in
degree, as would warrant a 40 percent evaluation. Rather, a
20 percent evaluation is in order under the old provisions of
Diagnostic Code 5292.
The Board has also considered all potentially applicable
diagnostic criteria in ascertaining whether an even higher
evaluation is warranted. However, there is no evidence of a
spinal fracture or ankylosis (old Diagnostic Codes 5285,
5286, and 5289). There is also no evidence of severe
intervertebral disc syndrome, productive of recurring attacks
with intermittent relief (40 percent under old Diagnostic
Code 5293).
Overall, the evidence supports an initial 20 percent
evaluation, but not more, for the veteran's low back strain.
To that extent, the appeal is granted.
V. Consideration under 38 C.F.R. § 3.321(b)(1)
The Board has based its decision in this case upon the
applicable provisions of the VA's Schedule for Rating
Disabilities. The veteran has submitted no evidence showing
that his service-connected disorders have markedly interfered
with his employment status beyond that interference
contemplated by the assigned evaluations, and there is also
no indication that these disorders have necessitated frequent
periods of hospitalization during the pendency of this
appeal. As such, the Board is not required to remand this
matter to the RO for the procedural actions outlined in 38
C.F.R. § 3.321(b)(1), which concern the assignment of extra-
schedular evaluations in "exceptional" cases. See Bagwell
v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9
Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App.
218, 227 (1995).
ORDER
The claim of entitlement to an initial evaluation in excess
of 10 percent for residuals of a gunshot wound to the right
foot, with a third metatarsal fracture and a retained foreign
body, is denied.
A 20 percent evaluation for low back strain is granted,
subject to the laws and regulations governing the payment of
monetary benefits.
