Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0505404

Decision Date: 02/25/05 | Archive Date: 03/04/05

DOCKET NO. 95-20 275

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 CONCLUSION I. 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.




WARREN W. RICE, JR.

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106