Citation Nr: 0812988 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-28 715A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disorder. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disorder. 3. Entitlement to an initial rating in excess of 10 percent for a left great toe disorder. 4. Entitlement to an initial rating in excess of 10 percent for gastroesophageal disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who appears to have served on active duty from October 1992 to September 1996, from May 2002 to May 2003, and from December 2003 to January 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Waco Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for lumbosacral spine, right knee, left great toe, and gastroesophageal disorders, and assigned 10, 10, 10, and 0 percent ratings, respectively, effective May 5, 2003. A December 2007 supplemental statement of the case (SSOC) increased the rating assigned for gastroesophageal disorder to 10 percent disabling, effective May, 5, 2003. During the course of the appeal, the veteran's claims file has been transferred to the jurisdiction of the Oakland RO. The issue of entitlement to an initial rating in excess of 10 percent for gastroesophageal disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's lumbar spine disorder was manifested by no more than a slight limitation of motion. A moderate limitation of motion; or, muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; or, intervertebral disc syndrome with incapacitating episodes; or (from September 26, 2003) forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 was not shown. 2. The veteran's right knee disorder is manifested by traumatic and degenerative arthritis, as well as satisfactory evidence of pain; compensable limitation of flexion or extension, subluxation or instability, or impairment of the tibia is not shown. 3. The veteran's left great toe was manifested by subjective complaints of pain resulting in no more than moderate disability. CONCLUSIONS OF LAW 1. An initial rating in excess of 10 percent for a lumbar spine disorder is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes (Codes) 5292, 5295 (prior to September 26, 2003), and 5237 (from September 26, 2003). 2. An initial rating in excess of 10 percent for a right knee disorder is not warranted. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes (Codes), 5003, 5010, 5014, 5256, 5257, 5258, 5260, 5261 (2007). 3. An initial rating in excess of 10 percent for left great toe disorder is not warranted. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5283 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In a July 2003 letter (prior to the adjudication on appeal) the appellant was advised of what type of evidence was needed to substantiate the claims, and of his and VA's responsibilities in the development of the claims. While the July 2003 letter did not advise the veteran verbatim to submit everything he had pertinent to his claims, it explained the type of evidence necessary to substantiate his claims and asked him to submit any such evidence. This was equivalent to advising him to submit everything in his possession pertinent to the claims. The September 2003 rating decision granted service connection for lumbar spine, right knee, and left great toe disorders and assigned each a 10 percent rating effective from May 5, 2003. A December 2006 letter informed the appellant of what was required to substantiate the "downstream" issue of an increased initial rating for lumbar spine, right knee, and left great toe disorders. The December 2006 letter discussed the manner in which VA determines disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Boards finds that the VCAA notice is adequate as the December 2006 letter, which includes Dingess/Hartman notice, informs the appellant that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, severity and duration of the symptoms, and impact on employment. The evidence that might support a claim for an increased rating was listed. The veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. The claims were subsequently readjudicated by December 2007 SSOC. In addition, the February 2004 statement of the case provided notice regarding the specific rating criteria used to evaluate the veteran's disabilities. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. The actions taken by VA have essentially cured any error in the timing of notice. Thus, the Board concludes that the veteran had actual knowledge of all notice requirements regarding increased rating claims. Therefore, the veteran has been provided with all necessary notice regarding his claim for an increased evaluation. Vazquez-Flores v. Peake, supra. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. With respect to VA's duty to assist, the veteran has been provided with VA examinations. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. II. Factual Background, Criteria, & Analysis Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations should 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. 38 C.F.R. § 4.7. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Because the instant appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Lumbosacral Spine Disorder The veteran filed a service connection claim for his lumbar spine disorder in May 2003. During the course of the appeal, the regulations for evaluation of certain disabilities of the spine were revised, effective on September 26, 2003. From the effective dates the veteran is entitled to a rating under the revised criteria. The Board notes that from December 2003 to January 2005 the veteran's compensation benefits were discontinued while he served on active duty. Under Code 5295, the old criteria (those prior to September 26, 2003) for lumbosacral strain assigned a 10 percent rating when there is characteristic pain on motion. A 20 percent rating is assigned when there is muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in standing position. A 40 percent rating is assigned for severe strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Prior to September 26, 2003 the veteran's low back disorder could also be rated under Code 5292, for limitation of motion of the lumbar spine. Code 5292 provides a 10 percent rating when limitation was slight, a 20 percent rating when limitation is moderate and a 40 percent rating when limitation is severe. 38 C.F.R. § 4.71a. The record did not show that the veteran had intervertebral disc syndrome with incapacitating episodes. Consequently, a rating under Code 5293 (prior to September 26, 2003 changes) or Code 5243 from September 26, 2003 disc disease provisions is not warranted. Under the September 26, 2003 change, back disability (to include low back strain) is rated under the general formula for diseases and injuries of the spine. Under the general formula a 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 rating is assigned when there is forward flexion of the thoracolumbar spine only to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Code 5237. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion are zero to 30 degrees, and normal left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. Id., Note 2. Here, there is no evidence of impairment to the low back that would warrant a rating in excess of 10 percent either under Codes 5292, 5293, 5295 (prior to September 26, 2003), or Code 5237 (from September 26, 2003). On July 2003 VA examination, it was reported that the veteran had back problems since 1993, possibly as a result of heavy lifting. He had complaints of pain radiating into the left leg. Low back straight leg raising sign was negative bilaterally. Sensation to pinprick and vibratory stimulation of the legs was normal. Range of motion studies showed that extension was to 30 degrees, flexion was to 90 degrees, and lateral movement in either direction was to 25 degrees. Lumbar muscle tone was normal. There was no scoliosis. His gait was normal. He could not walk on his left toe, but could walk on his heels. X-rays showed that there was an old fracture noted at the anterior-superior margin of the L3 seen only in the lateral view. Alignment of the vertebral bodies was well-maintained. There were mild degenerative changes at L5. The impression was chronic lumbosacral strain, minimal symptoms, and minimal disability. 2005 to 2007 VA Central Health Care System treatment records included a May 2006 x-rays in which the static images of the spine were normal. An August 2006 orthopedic consult noted complaints of right hip, groin, and back pain. The veteran indicated that he could not fully bear weight on his right lower extremity. Examination revealed that he ambulated with an antalgic gait with a cane. Passive flexion was to 85 degrees with little pain. Straight leg raises were negative, but generated pain in the thigh and hip region. He was distally neurovascularly intact. An MRI of the spine demonstrated no acute fracture, mild degenerative changes in the lower lumbar spine; mild disc bulge at L4-L5; and diffuse bulging of his intervertebral disc at L5-S1 with small central protrusion observed and spinal stenosis at this level. The impression was right hip and back pain of an unknown etiology. On July 2007 VA examination, it was noted that the claims file was reviewed. The examiner noted that the veteran had numerous plain films, as well as MRIs of his back. The examiner indicated that there was the suggestion of a fracture to the superior and anterior body of L3, however, a closer inspection with an MRI with T1 weighted views suggested fatty deposition in this area and a limbus vertebral sclerosis abnormality at the superior endplate of L3 and unrelated to fracture. The veteran indicated that his back was not preventing him from working as he was not employed at the time of examination. He reported that there were no significant flare ups as the pain was constant and bending made it worse. He had problems lifting his infant son. He did not have any bowel or bladder incontinence. It was reported that there were no recent hospitalizations. His back condition did not require any assignment of crutch, brace, cane, or corrective shoes. He could walk and stand for up to 30 minutes at a time, but did so with aches and pain in his back and knee. He had no exams demonstrating evidence of weakness or gait instability, calluses of the feet, unusual shoe wear, weight bearing misalignment of the Achilles tendon, or required any spinal manipulation. Physical examination revealed a normal gait. He could walk on his toes and heels. Normal motor strength was noted in all four extremities. Reflex testing was 2+ throughout including 2+ at the knee and ankle jerks. There was no paraspinal tenderness or evidence of kyphoscoliosis. There was no spasm noted, however, loss of lordotic curve was noted. Forward flexion was reduced from a normal value of 0 to 90 degrees to that of 75 degrees. Extension was to 30 degrees. Four repetitions of forward flexion failed to cause any reduction of joint reduction which was maintained at 75 degrees with an overall reduction of 15 degrees. There was no fatigability, weakness, or loss of coordination after four repetitions. Lateral bending and rotational movements were all accomplished at 30 degrees with four repetitions revealing no reduction in joint excursion, pain, fatigability, or loss of coordination. The diagnosis was lumbosacral strain. Radiographs and physical examination revealed mild spinal canal stenosis seen at L5-S1 with plain film abnormality suggesting sclerosis limbus vertebral body at the superior endplate of L3 and unrelated to fracture due to mechanism of falling on the back as described in the service. He currently was not a surgical candidate. There was no evidence of radiculopathy based on motor impairment, weakness, lameness, or deformity. The veteran's DeLuca score was -15 degrees of forward flexion due to recurrent spasm which was constant without flare-ups. An August 2007 addendum indicated that there were no incapacitating episodes in the last 12 months. After reviewing multiple VA records, and VA examination reports, the Board finds that the evidence does not show a moderate limitation of motion necessary to grant a higher (20 percent) rating under Code 5292. July 2007 VA examination report was the only record that noted that there were recurrent spasms; however, there was no objective evidence of spasm or severe lumbosacral strain. Other medical records included in the claims file were also completely negative for any type of back spasms. Given that there are no objective findings of record of demonstrable muscle spasm, the Board finds that essentially the evidence did not show a severe lumbosacral strain with muscle spasm on extreme bending or loss of lateral spine motion, unilateral, in standing position, consequently, a higher (20 percent) rating is not warranted under Code 5295. As forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 was not shown by either the VA examination reports or treatment records, a higher (20 percent) rating is not warranted under the new criteria under Code 5237 (from September 26, 2003). Additional factors that could provide a basis for an increase have also been considered. However, it is not shown that the veteran has any functional loss beyond what he is presently being compensated for. 38 C.F.R. §§4.40, 4.45, DeLuca, supra. As previously indicated, as the medical evidence does not suggest that the veteran had intervertebral disc disease with incapacitating episodes, the provisions for intervertebral disc syndrome are not for consideration. In summary, the veteran's service connected lumbar spine disorder does not warrant a rating in excess of 10 percent under any applicable criteria at any point during the appeal period. "Staged" ratings are not warranted. B. Right Knee Disorder The veteran's right knee disorder has been rated under Diagnostic Code 5014 for osteomalacia. Code 5014 provides that a rating should be based on the limitation of motion of the affected parts as arthritis degenerative. Codes 5010, 5003 provide for rating arthritis based on limitation of motion. 38 C.F.R. § 4.71a. If limitation of motion is noncompensable, a rating of 10 percent is for application for each major joint. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 24, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Code 5257 for subluxation/instability. Essentially, these opinions suggest that separate compensable ratings may be assigned when limitation of knee motion is compensable or (under Code 5003 or 5010), when there is X-ray evidence of arthritis together with a finding of painful motion. The two codes for rating knee disability based on limitation of motion are Code 5260 (for limitation of flexion) and Code 5261 (for limitation of extension). Under Code 5260 a 0 percent rating is warranted when flexion is limited to 60 degrees; 10 percent when limited to 45 degrees; 20 percent when limited to 30 degrees; and 30 percent when limited to 15 degrees. Under Code 5261, a 0 percent rating is warranted when extension is limited to 5 degrees; 10 percent when limited to 10 degrees; 20 percent when limited to 15 degrees, and 30 percent when limited to 20 degrees. Higher ratings are available for more severe limitations. [Plate II, reflects that normal extension of the knee is to zero degrees, and normal flexion is to 140 degrees.] Id. Under Code 5257 (for recurrent subluxation or lateral instability) a 10 percent rating is warranted when such disability is slight, a 20 percent rating when moderate, and a 30 percent rating when severe. 38 C.F.R. § 4.71a. Here, a May 2003 VA treatment record noted complaints of right knee pain and sometimes his right knee buckled. A June 2003 VA MRI of the right knee revealed joint effusion and chronic degeneration of medial collateral ligament. On July 2003 VA examination, the veteran had complaints of continued knee pain. It was noted that an MRI of the knee dated June 2003 showed chronic degeneration of the medial collateral ligament. Range of motion was 0 to 130 degrees. There was no fluid, no crepitous, and no laxity. There was tenderness medially, laterally, and inferiorly about the knee. The impression was traumatic and degenerative arthritis of the right knee with degeneration of the medial collateral ligament, moderate symptoms, and minimal disability with progression. 2005 to 2007 VA Central Health Care System treatment included a May 2006 x-rays in which the static images of the knees were normal. On July 2007 VA examination, it was noted that the claims file was reviewed. The veteran reported complaints of low underlying constant pain which related over to the inferior aspect of the knee and sometimes surrounded the knee. He indicated that he did not have any instability or falls. He claimed the knee popped out of the socket on one occasion. He never required an orthopedic procedure or had surgery on his right knee. It was reported that there were no recent hospitalizations. His knee condition did not require any assignment of crutch, brace, cane, or corrective shoes. He could walk and stand for up to 30 minutes at a time, but did so with aches and pain in his back and knee. He had no exams demonstrating evidence of weakness or gait instability, calluses of the feet, unusual shoe wear, weight bearing misalignment of the Achilles tendon, or required any spinal manipulation. On examination, his knees were bilaterally symmetrical. There was no joint effusion. Range of motion studies showed that flexion was to 140 degrees and extension was to 0 degrees. Straight leg raises were 90 degrees bilaterally without any evidence of sciatica symptomatology. When the knee was straight, adduction was to 30 degrees and abduction was 45 degrees. When the knee was flexed to 125 degrees, internal rotation was accomplished to 45 degrees, and external rotation was to 40 degrees bilaterally. There was no evidence of an anterior/posterior drawer sign but Lachman's test and McMurray's test was negative. He was able to bear weight and no crepitous was noted. The diagnosis was patellofemoral syndrome of the right knee with normal physical examination, normal radiographs, and a DeLuca score of 0. On review, range of motion findings does not meet the criteria for a compensable rating under either DC 5260 or 5261. 38 C.F.R. § 4.71a (2007). However, as traumatic and degenerative arthritis as well as satisfactory evidence of pain have been shown on VA examinations, the veteran is entitled to a 10 percent rating under Codes 5003, 5010, and 5014. To establish entitlement to a rating in excess of 10 percent consideration must be given to other potentially applicable codes. A 20 percent rating under Code 5258 is not warranted, as there is no evidence of dislocated semilunar cartilage. A compensable rating under Code 5257 (for recurrent subluxation or lateral instability) is not warranted as there is no objective evidence of left knee instability. Notably, on July 2003VA examination, the examiner specifically noted that there was no crepitous and no laxity. On July 2007 VA examination, there was no evidence of an anterior/posterior drawer sign, but Lachman's test and McMurray's test was negative. The veteran himself indicated that he did not have any instability or falls. Also his knee condition did not require any assignment of crutch, brace, cane, or corrective shoes. Other rating Codes applicable to leg disability have been considered but as ankylosis and impairment of the tibia are not shown (See Codes 5256 and 5262), they do not apply. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, DeLuca, supra 8 Vet. App. 202 (1995). Notably, the July 2003 VA examiner reported range of motion as 0 to 130 degrees and in July 2007, the VA examiner found that the range of motion was from 0 to 140 degrees with a DeLuca score of 0. Here, the Board finds that the veteran's subjective complaints of pain are accounted for by the current 10 percent rating. In summary, a rating in excess of 10 percent for right knee disorder is not warranted under any of the applicable rating criteria at any point throughout the appeal period. There is a preponderance of the evidence against this claim and it must be denied. C. Left Great Toe Disorder On July 2003 VA examination, it was noted that the veteran had a crush injury to his left foot in 1992. He had a cast on for one month and a pin was put in place to immobilize the fracture. After the cast was removed, there was a lot of pain in the foot and toe and an operation to remove the pin took place after the toe was re-injured. Since then, he had intermittent increasing pain in the left great toe. Range of motion studies showed toe extension to 20 degrees and flexion to 10 degrees. There was tenderness to palpation around the 7.5 cm scar on the dorsum of the toe. The impression was fracture of the left great toe with operative treatment and cast; subsequent removal of the pins with pain in the left foot; and moderate disability with slight progression. On July 2007 VA examination, it was noted that the claims file was reviewed. It was reported that there were no recent hospitalizations. The veteran had complaints of low level pain with flare-ups only two to three times per month. He indicated that he had no gait instability or problems walking with this. His toe condition did not require any assignment of crutch, brace, cane, or corrective shoes. He had no exams demonstrating evidence of weakness or gait instability, calluses of the feet, unusual shoe wear, weight bearing misalignment of the Achilles tendon, or required any spinal manipulation. Examination of the left foot showed that there was no deformity. He was able to stand on his toes with dorsiflexion accomplished at 20 degrees. Plantar flexion was to 45 degrees, eversion was to 20 degrees, and inversion was to 30 degrees with repetitive motions greater than four creating no loss of joint instability, pain, loss of coordination or reduction in joint excursion. There was a nontender scar. There was no pain at the Achilles tendons. There were no degrees of valgus deformity noted. The examination of the forefoot and midfoot alignment was normal. After examination and x-rays, the diagnosis was left great toe fracture without any foot deformity, normal physical examination, and a DeLuca score of 0. Radiographs were normal. The veteran's service-connected left great toe disorder disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5283. Under Code 5283, malunion or nonunion of the tarsal or metatarsal bones warrants a 10 percent rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. A note to Code 5283 provides that a 40 percent rating is warranted with actual loss of use of the foot. The words "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "moderate" or "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. Review of the pertinent evidence shows the veteran's service- connected left great toe disorder is manifested primarily by subjective complaints of pain. On July 2003 VA examination the veteran's great toe range of motion was flexion to 10 degrees and extension to 20 degrees; the disorder was described as moderate. On July 2007 VA examination, the veteran was able to stand on his toes with dorsiflexion to 20 degrees; plantar flexion was to 45 degrees with no loss of joint instability, pain loss of coordination or reduction in joint excursion on repetitive motion. The forefoot and midfoot alignment was normal. After examination and x-rays, the diagnosis was left great toe fracture without any foot deformity, normal physical examination, and a DeLuca score of 0. Radiographs were normal. In evaluating the veteran's claim under Code 5283, the Board finds there is no evidence of record which shows that the disability picture presented more nearly approximates moderately severe malunion or non-union of the tarsal or metatarsal joints, so as to warrant the next higher (20 percent) rating. There is a preponderance of the evidence that shows that the left great toe disorder cause no more than moderate disability and thus do not warrant a rating in excess of 10 percent. To afford the veteran every consideration as to an increased rating, the Board has reviewed the possibility of a rating under any other potentially applicable diagnostic codes. Under Code 5294, a foot injury warrants a 10 percent rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. 38 C.F.R. § 4.71a. As discussed above, this disability causes no more than moderate disability, given that it is manifested by subjective complaints of pain. Therefore, rating under Code 5294 is of no benefit to the veteran. Under 38 C.F.R. §§ 4.40, 4.45 and governing caselaw (DeLuca v. Brown, 8 Vet. App. 202 (1995)), the Board is required to consider such factors as pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability under limitation-of-motion diagnostic codes. In this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Furthermore, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain. The Board has considered the veteran's the application of the DeLuca guidelines in this matter, and again notes that the VA examiner found no evidence of functional limitation attributable to this disability beyond what was already considered in the assigned 10 percent rating. Therefore, the Board finds that an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra. On close review of the entire record the Board found no distinct period during which the criteria for a higher rating were met. See Fenderson, supra. For the reasons and bases set forth above, the Board finds that there is a preponderance of the evidence that shows that the veteran is not entitled to an initial rating in excess of 10 percent for this disability, and that the benefit-of-the-doubt rule is not for application. D. Extraschedular Considerations Finally, to accord justice in exceptional cases where evaluations provided by the Ratings Schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). In this case, the Board finds that the regular schedular standards applied in this case adequately describe and provide for the veteran's lumbar spine, right knee, and left great toe disorders. There is no objective evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the disabilities that would take the veteran's case outside the norm so as to warrant an extraschedular rating. ORDER An initial rating in excess of 10 percent for a lumbar spine disorder is denied. An initial rating in excess of 10 percent for a right knee disorder is denied An initial rating in excess of 10 percent for a left great toe disorder is denied. REMAND It appears that pertinent medical evidence remains outstanding. On July 2007 VA examination an endoscopy was performed and the veteran was diagnosed with gastroesophageal reflux disease (GERD). The examiner specifically noted that an upper GI series was to be performed and that the veteran's GERD symptomatology would be reevaluated by the upper GI. However, no upper GI report with current symptomatology has been associated with the claims file. As such record may have some bearing on the veteran's claim and is constructively of record, if such a report exists it must be obtained. On July 2007 VA examination, the examiner indicated that some of the veteran's symptoms were related to a nonservice- connected disorder, or capsular swelling due to steatosis due to obesity and possibly influenced by heavy alcohol intake in the past. As it is not clear which symptoms are attributable to his service-connected gastroesophageal disorder and which symptoms are associated with a nonservice-connected disability, a new VA examination is necessary for clarification. It is also noteworthy that as this is an appeal from the initial ratings assigned with the grant of service connection, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the veteran to identify all VA and non-VA health care providers that have treated him for his GERD from May 2003 to the present, then obtain records of such treatment from all sources identified, specifically including, but not limited to, the upper GI series report from VA and any other treatment records from VA Central California Health Care System. 2. The veteran should be afforded a VA gastrointestinal disorder examination to determine the severity of his service- connected gastroesophageal disorder. The veteran's claims folders must be reviewed by the examiner in conjunction with the examination. Any necessary tests should be performed. As capsular swelling due to steatosis has been diagnosed, but is not service-connected, the examiner should, to the extent possible, distinguish symptoms of the service-connected gastroesophageal disorder from those due to other, nonservice-connected, conditions. If it is not possible or feasible to make this differentiation, please expressly indicate this and explain why this cannot be done. The examiner must be furnished a copy of the applicable criteria under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2006), and must comment as to the presence or absence of each symptom and findings required under the criteria for 30 and 60 percent ratings, and the frequency and severity of each symptom and findings noted. The examiner must explain the rationale for all opinion given. 3. The RO/AMC should then readjudicate the claim. If the claim remains denied, an appropriate supplemental SOC should be issued, and the appellant should have the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs