Citation Nr: 1001663 Decision Date: 01/11/10 Archive Date: 01/22/10 DOCKET NO. 04-16 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left leg disability. 2. Entitlement to an evaluation in excess of 20 percent for residuals of a shell fragment wound to the left Achilles tendon. 3. Entitlement to an evaluation in excess of 10 percent for residuals of a shell fragment wound to the left neck. 4. Entitlement to an evaluation in excess of 10 percent for residuals of a shell fragment wound to the left chest. 5. Entitlement to an evaluation in excess of 10 percent for residuals of a shell fragment wound to the left radius. 6. Entitlement to an evaluation in excess of 40 percent for residuals of a shell fragment wound to the low back. 7. Entitlement to an evaluation in excess of 10 percent for allergic rhinitis with maxillary sinusitis. 8. Entitlement to a compensable evaluation for generalized periodontitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and P.J. ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from May 1957 to May 1983. He served in Vietnam and was awarded the Bronze Star with "V" device, Combat Action Ribbon, and Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran and P.J. testified before the undersigned Acting Veterans Law Judge at a June 2006 hearing conducted at the RO. A transcript of the hearing is of record. This case was brought before the Board in January 2007, at which time the case was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include providing him with necessary VA examinations. FINDINGS OF FACT 1. The evidence of record does not show a left leg disorder, other than a shell fragment wound to the left Achilles tendon, related to active service, and any current left leg disorder is not otherwise etiologically related to such service, nor was it caused or aggravated by the Veteran's service-connected disabilities. 2. The Veteran's residuals of a shell fragment wound to the left Achilles tendon is manifested no more than a moderately severe disability of Muscle Group XI; 5/5 strength in Muscle Group XI; and a well-healed scar without any tenderness, adhesions or evidence of breakdown. 3. The Veteran's residuals of a shell fragment wound to the left neck is manifested by a well healed scar without any tenderness; no loss of deep fascia or muscle substance; forward flexion of the cervical spine limited to 20 degrees of motion; 5/5 strength of Muscle Group XXII; and it is not manifest by any moderately severe residuals to the affected muscle group. 4. The Veteran's residuals of a shell fragment wound to the left chest is manifested by a well healed scar, without tenderness, adhesions or evidence of breakdown; full strength of the muscles of Muscle Group I; and it is not manifest by any moderately severe residuals to the affected muscle group. 5. The Veteran's residuals of a shell fragment wound to the left radius is manifested by a tender scar with adhesion to underlying tissue, loss of strength of the muscles of Muscle Group VIII with multiple retained foreign bodies, approximating moderately severe residuals. 6. The Veteran's residuals of a shell fragment wound to the low back, resulting in lumbar strain, is manifested by objective evidence of severe limitation of motion of the lumbar spine; there is no evidence of ankylosis of the lumbar spine or of the entire spine or incapacitating episodes having a total duration of at least six weeks during a twelve-month period. 7. The Veteran's allergic rhinitis with maxillary sinusitis is manifested by no more than non-incapacitating episodes two times per year necessitating antibiotic treatment and characterized by nasal congestion, nasal mucous, itchy nose, watery eyes and sneezing; there is no evidence of incapacitating episodes due to sinusitis. 8. The Veteran's generalized periodontitis is manifested by temporomandibular articulation limited to an inter-incisal range of 30mm; there is no loss or malunion of the mandible present. CONCLUSIONS OF LAW 1. A left leg disorder was not incurred in, or aggravated by, active military service, and was not proximately due to a service-connected disorder. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. The criteria for an evaluation in excess of 20 percent for residuals of a shell fragment wound to the left Achilles tendon have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5311 (2009). 3. The criteria for an evaluation of 20 percent, but not greater, for residuals of a shell fragment wound to the left neck have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, 4.73, Diagnostic Code 5322, 4.118, Diagnostic Codes 7800 and 7805 (2009). 4. The criteria for an evaluation in excess of 10 percent for residuals of a shell fragment wound to the left chest have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Codes 5301, 5321 (2009). 5. The criteria for an evaluation of 20 percent, but not greater, for residuals of a shell fragment wound to the left radius have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5308 (2009). 6. The criteria for an evaluation in excess of 40 percent for residuals of a shell fragment wound to the low back have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293 and 5295 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine (2009). 7. The criteria for an evaluation in excess of 10 percent for allergic rhinitis with maxillary sinusitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2009). 8. The criteria for an evaluation of 20 percent, but not greater, for generalized periodontitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.150, Diagnostic Code 9905 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2009). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received sufficient notification through the RO's November 2002, September 2003, March 2006, February 2007, October 2007, and November 2008 VCAA letters. These notice letters advised the Veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 VCAA letter provided such notice. The Board notes that the RO's September 2003, March 2006, February 2007, October 2007, and November 2008 letters were sent subsequent to the initial unfavorable agency decision. However, the Board finds that any timing defect with regard to VCAA notice was harmless error. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In this regard, the notice provided to the Veteran by these letters fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the case was readjudicated and a May 2009 supplemental statement of the case was provided to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also afforded VA examinations in January 2003, December 2008 and February 2009. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2009); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These examinations were conducted by VA physicians who had reviewed the Veteran's claims file. The reports also noted his pertinent medical history, as well as physical examination findings. As for his service connection claim, the VA examiner in February 2009 included a rationale for the conclusion reached in the examination report. The Board therefore concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, there is no sign in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Analysis Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Alternatively, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (2009); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the Veteran. With regards to direct service connection, service treatment records are absent complaints, findings or diagnoses of any disorder of the left leg other than a shell fragment wound, for which the Veteran is already service-connected. See October 2003 rating decision. Furthermore, the Board observes the Veteran himself denied a history of musculoskeletal conditions, other than back complaints in April 1976. See, e.g., May 1973 and April 1976 Officer Physical Examinations. Thus, there is no medical evidence that shows the Veteran suffered from a left leg disorder, other than a shell fragment wound, during service. With respect to secondary service connection, the Veteran contends that his left lower extremity disorder, diagnosed as left hip arthritis and avascular necrosis, was proximately caused by his service-connected disabilities. Alternatively, he argues that his disorder of the left lower extremity has been aggravated by his service-connected disabilities. However, the record does not contain competent medical evidence or a competent medical opinion establishing an etiological link between this current left lower extremity disorder and his service-connected disabilities. In addition, there is no competent evidence of record that the Veteran's service-connected disabilities has caused these conditions to increase in severity beyond their natural progression. In this regard, the Board observes the Veteran was provided a VA examination in February 2009. After reviewing the entire claims file and physically examining the Veteran, the VA examiner opined that the Veteran's left lower extremity disorder is less likely as not caused by or a result injuries in service or the Veteran's service-connected disabilities. The report noted that the Veteran's current left leg disorder consisted of left hip arthritis and avascular necrosis which led to a left hip arthroplasty in 2007. The VA examiner noted that prior to the Veteran's left hip surgery, he had only mild arthritis. The VA examiner also noted that the leading etiology of avascular necrosis is prolonged steroid use, which the Veteran underwent due to his myasthenia gravis, and that there is a correlation shown between the Veteran's steroid use and his left hip symptoms increasing. The Board notes the Veteran has been previously denied service connection for myasthenia gravis in an unappealed rating decision. The VA examiner indicated that the prolonged use of prednisone for myasthenia gravis is more likely than not the etiology for his left hip avascular necrosis. The Board finds the February 2009 VA examination to be adequate in that it was based upon a complete review of the Veteran's claims file, physical examination of the Veteran, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The Board acknowledges that the Veteran himself has claimed he suffers from a left leg disorder as a result of active service or, in the alternative, as the result of or has been aggravated by his service-connected disabilities. However, as a layman, the Veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection on either a direct or secondary basis. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, there is no competent medical evidence included in the record to support the Veteran's assertion that he suffers from a left leg disability that is etiologically related to active service, other than that for which service connection has already been granted, or that his service-connected disabilities are the proximate cause of or have aggravated his currently diagnosed left hip arthritis and avascular necrosis. The objective evidence of record does not show ongoing complaints of a left leg disorder, other than that for which service connection has already been granted, following the Veteran's discharge from the service. Moreover, the VA examiner has opined that his current conditions are due to prolonged steroid treatment for his non-service-connected myasthenia gravis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left leg disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). II. Increased Evaluation Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1 (2009); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2009); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Muscle Injuries The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection. The history with regard to this sort of injury would include service department record of superficial wound with brief treatment and return to duty, healing with good functional results and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). The type of injury associated with a moderate muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X- ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, sacrum, or vertebrae, with epithelial sealing over the bone, rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. With respect to the muscle injuries at issue in the instant case, the Veteran's service treatment records indicate he was struck by shrapnel from an exploding mine, causing injury to muscles of the left Achilles tendon, left neck, left chest, left radius and low back, each discussed below. Records indicate the Veteran was treated with debridement, shrapnel removal, flaps, bone grafting and tendon repair. Following hospital discharge after several weeks, he was placed on six months limited duty. A. Left Achilles Tendon The Veteran's left Achilles tendon was initially injured by an exploding claymore mine while he was in Vietnam in February 1968. Service treatment records revealed that his left leg wound was debrided twice and then closed. An April 1968 treatment report noted physical examination findings of a well healed 4 centimeter laceration on the medial aspect of the left leg. X-ray examination of the left leg revealed a poorly defined, 1 centimeter radiolucency through the medullary portion of the distal tibia at the junction of the proximal two-thirds and distal two-thirds. The report concluded with a diagnosis of shrapnel wound in the left leg. A post-service VA orthopedic examination, conducted in September 1983, noted that the Veteran suffered a through and through injury to the left lower limb which lacerated his tendo-Achilles and caused him to suffer a tibial fracture. However, the September 1983 VA examination report notes these injuries had since healed. Neuromuscularly, the Veteran's lower extremities were intact, with deep tendon reflexes of 2/4, symmetrically. Physical examination revealed a prominent nodule over the left tendo-Achilles with a healed laceration without induration or cellulitis. There was no palpable defect in the tendo-Achilles and the Veteran's calves measured equal circumferentially. The Veteran's shell fragment wound to the left Achilles tendon is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5311 (2009), pertaining to injuries to Muscle Group (MG) XI. The muscles involved in MG XI include the posterior and lateral crural muscles, and muscles of the calf: triceps surae, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus and plantaris. The functions affected by these muscles include propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes and flexion of the knee. Muscle disability under this provision is evaluated as follows: slight (0 percent); moderate (10 percent); moderately severe (20 percent), and severe (30 percent). In considering all the evidence under the laws and regulations as set forth above, the Board finds no basis for assigning an evaluation in excess of 20 percent for the Veteran's residuals of a shell fragment wound to MG XI, left Achilles tendon. While the Veteran suffered a through and through injury to the to the left Achilles tendon, MG XI, his injury does not more closely approximate a severe injury to MG XI. In this regard, the Board observes the initial injury to the Veteran's left Achilles tendon did not result in a shattering bone fracture or open communicated fracture with extensive debridement, prolonged infection, sloughing of soft parts and intermuscular binding and scaring. See 38 C.F.R. § 4.56(d). A January 2003 VA examination report noted that the Veteran's scar on his left leg was well healed, and his left ankle exhibited a normal range of motion. Neurologically, he had absent deep tendon reflexes at the left knee and ankle. The report concluded with a diagnosis of no loss of function of the left leg and minimal loss of function of his left Achilles. A February 2009 VA examination report noted that the Veteran complained of pain, fatigability and weakness and exhibited an abnormal gait with poor propulsion. While there was damage to the peroneus and soleus tendons, there was no evidence of bone or nerve damage, muscle herniation, loss of deep fascia or muscle substance. Muscle strength of MG XI, and related groups, was 5/5. There was no instability of the left ankle and no evidence of abnormal weight bearing. Finally, the Veteran did not exhibit a scar painful or tender to touch or adherent to the underlying tissue. In light of the evidence outlined above, the Board finds that the Veteran's residuals of a shell fragment wound to MG XI, left Achilles tendon, is appropriately evaluated as 20 percent disabling. There are no indications that the Veteran suffers from any palpation of 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). Accordingly, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's shell fragment wound to his left Achilles tendon meets the criteria of a "severe" muscle injury. In reaching its decision, the Board considered the benefit of the doubt rule. However, this rule does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Left Neck The Veteran's left neck was initially injured by an exploding claymore mine while he was in Vietnam in February 1968. Service treatment records revealed that he was found to have a wound to the base of the neck, which was debrided twice and then closed. The report concluded with a diagnosis of shrapnel wound to the neck. The Veteran's shell fragment wound to the left neck is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7800 (2009). Under Diagnostic Code 7800, which became effective August 30, 2002, disfigurement of the head, face, or neck is assigned a 30 percent evaluation if there are visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or if there are two or three characteristics of disfigurement. 38 C.F.R. § 4.118 Diagnostic Code 7800 (2009). A 10 percent rating is warranted with one characteristic of disfigurement. The eight characteristics of disfigurement are: (1) A scar five or more inches (13 or more centimeters (cm.)) in length; (2) A scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) The surface contour of the scar is elevated or depressed on palpation; (4) The scar is adherent to underlying tissue; (5) The skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) The skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) There is underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) The skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118. In determining whether an increased evaluation is warranted for the Veteran's left neck injury, the Board has also considered the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5322, pertaining to injuries to MG XXII. The muscles involved in MG XXII include the muscles of the front of the neck, including the trapezius I, sternocleidomastoid, the "hyoid" muscles, sternothyroid and digastric. The functions affected by these muscles include rotary and forward movements of the head, respiration and deglutition. Muscle disability under this provision is evaluated as follows: slight (0 percent); moderate (10 percent); moderately severe (20 percent), and severe (30 percent). The Board has also considered the provisions of 38 C.F.R. § 4.71a, pertaining to disabilities of the musculoskeletal system. See 38 C.F.R. § 4.118, Diagnostic Code 7805 ("other" scars are to be evaluated based upon limitation of motion of the affected part). According to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or combined range of motion of the cervical spine not greater than 170 degrees. See 38 C.F.R. § 4.71a. Forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the cervical spine warrants a 30 percent evaluation. Id. In considering all the evidence under the laws and regulations as set forth above, the Board finds that an evaluation of 20 percent, but not greater, for the Veteran's residuals of a shell fragment wound to MG XXII, left neck, is warranted under the provisions of the General Rating Formula. In this regard, a January 2003 VA examination report reflects that the Veteran had a well healed scar on his left lower neck and that there was no tenderness in this area. Range of motion testing of the cervical spine revealed 20 degrees of flexion, 20 degrees of extension, 45 degrees bilateral flexion and 45 degrees bilateral rotation of the neck (cervical spine). A February 2009 VA examination report indicates the Veteran currently complains of numbness and tingling of the neck. There was no evidence of bone or nerve damage, muscle herniation, loss of deep fascia or muscle substance. Muscle strength of MG XXII, and related groups, was 5/5. In light of the evidence outlined above, the Board finds that the Veteran's residuals of a shell fragment wound to MG XXII, left neck, warrants an evaluation of 20 percent due to limitation of motion. However, a greater evaluation is not warranted in the instant case as there are no indications that the Veteran suffers from any palpation of 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). Further, there is no indication the Veteran suffered a through and through or deep penetrating wound resulting in shattering bone fracture or open comminuted fracture with extensive debridement. Id. Finally, there is no evidence of flexion of the cervical spine limited to 15 degrees or less or ankylosis of the cervical spine. See 38 C.F.R. § 4.71a, General Rating Formula. Accordingly, the Board finds that an evaluation of 20 percent is warranted for residuals of a shell fragment would to the left neck. However, a preponderance of the evidence weighs against a finding that the Veteran's shell fragment wound to his left neck warrants an evaluation in excess of 20 percent. C. Left Chest The Veteran's left chest was initially injured by an exploding claymore mine while he was in Vietnam in February 1968. Service treatment records revealed that his chest was debrided twice and then closed. A March 1963 treatment record indicates X-rays of the chest revealed the heart, lungs and mediastinum had a normal appearance. There were three irregular metallic fragments located in the chest in the lateral projection, two of which appeared to be in the subcutaneous tissues and a third which may have been inner thoracic. The report concluded with a diagnosis of shrapnel wound in the chest. The Veteran's shell fragment wound to the left chest is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.73, Diagnostic Codes 5399-5321 (2009). When an unlisted condition is encountered which requires an analogous rating, the first two digits of the diagnostic code present that part of the rating schedule most closely identifying the body part or system involved, with a "99" assigned as the last two digits representing all unlisted conditions. 38 C.F.R. § 4.27 (2009). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2009). Diagnostic Codes 5321 is used in rating injuries to MG XXI. The muscles involved in MG XXI include the muscles of respiration: thoracic muscle group. Muscle disability under this provision for the non-dominant group is evaluated as follows: slight (0 percent); moderate (10 percent); moderately severe (20 percent), and severe (30 percent). In determining whether an increased evaluation is warranted for the Veteran's shell fragment wound to the left chest, the Board has also considered the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5301, pertaining to injuries to MG I. The muscles involved in MG I include the trapezius, levator scapulae and serratus mangnus. These muscles relate to the functions of upward rotation of the scapula, and elevation of the arm above shoulder level. Muscle disability under this provision is evaluated for the minor arm as follows: slight (0 percent); moderate (10 percent); moderately severe (20 percent), and severe (30 percent). In considering all the evidence under the laws and regulations as set forth above, the Board finds no basis for assigning an evaluation in excess of 10 percent for the Veteran's residuals of a shell fragment wound to the left chest. Initially, the Board observes there is no injury to MG I. See February 2009 VA examination report. In this regard, a January 2003 VA examination report reflects the Veteran exhibited minimal loss of function of the left arm with x-ray evidence of three metal fragments in the posterior chest wall. A February 2009 VA examination report indicates the Veteran currently does not complain of pain, fatigability, weakness or any other symptom related to damage to MG I. Furthermore, there was no evidence of bone or nerve damage, muscle herniation, loss of deep fascia or muscle substance, and muscle strength of MG I, and related groups, was 5/5. Finally, the Veteran did not exhibit a scar painful or tender to touch or adherent to the underlying tissue. In light of the evidence outlined above, the Board finds that the Veteran's residuals of a shell fragment wound to left chest is appropriately evaluated as 10 percent disabling. The Veteran's service treatment records reflect that his wound to his left chest was not a through and through or deep penetrating wound with debridement, prolonged infection, sloughing of soft parts, and intermuscular scarring. Although the Veteran's wound was debrided, there are no apparent residuals and he did not have any prolonged infection thereafter. Further, there are no indications that the Veteran suffers from any palpation of 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). Finally, while there is evidence of retained foreign body, there is no intermuscular trauma or explosive effect of the missile. Accordingly, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's shell fragment wound to his left chest meets the criteria of a "moderately severe" muscle injury. In reaching its decision, the Board considered the benefit of the doubt rule. However, this rule does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). D. Left Radius The Veteran's left radius was initially injured by an exploding claymore mine while he was in Vietnam in February 1968. Service treatment records revealed that his wound was debrided twice. A Steinman pin fixation of a left radial fracture was performed, and the wound was later closed pursuant to a split thickness skin graft which was applied to the wound of the left forearm. A March1968 treatment report noted physical examination findings of a well healed skin graft on the radiovolar aspect of the left forearm with a Steinman pin protruding through the skin. Two X-rays revealed an incompletely healed comminuted fracture through the distal third of the left radius with good position and alignment of the major fragments. A metallic pin was noted through the distal radius and ulna for fixation of the distal radial fragment. The report concluded with a diagnosis of comminuted fracture of the left radius and shrapnel wounds. A post-service VA orthopedic examination, conducted in September 1983, noted that the Veteran suffered a shrapnel injury to his left wrist and had some discomfort after prolonged exercise or activity but denied any gross weakness. Examination of the left forearm showed a defect of the volar radial aspect of the distal one-fourth of the radius with overall acceptable alignment and full pronation and supination. There was a slight loss of muscle strength with regards to extensor carpi radialis function on the left side. X-rays revealed an old healed fracture involving the distal radial metaphyseal area with slight malalignment with overall preservation of length. The Veteran's fracture of the left radius, shell fragment wound with retained foreign bodies, is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5212, pertaining to impairment of the radius. Under Diagnostic Code 5212, a 10 percent evaluation is warranted where here is malunion of the radius with bad alignment. A 20 percent evaluation is warranted where there is nonunion in the upper half of the radius or where there is nonunion in the lower half with false movement without loss of bone substance or deformity. A maximum 30 percent evaluation is warranted where there is nonunion of the lower half of the radius with false movement and loss of bone substance (1 inch or more) and marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5212 (2009). Also potentially applicable to the Veteran's claim is Diagnostic Code 5308, pertaining to MG VIII. The muscles involved in MG VIII include the extensors of the carpus, fingers and thumb and the supinator. The functions affected by these muscles include extension of the wrist, fingers and thumb and abduction of the thumb. Muscle disability under this provision for the non-dominant group is evaluated as follows: slight (0 percent); moderate (10 percent); moderately severe (20 percent), and severe (20 percent) In considering all the evidence under the laws and regulations as set forth above, the Board finds an evaluation of 20 percent is warranted for the Veteran's residuals of a shell fragment wound to MG VIII with a fracture to the left radius. In this regard, a January 2003 VA examination report reflects the Veteran exhibited minimal loss of function of the left wrist with a nontender scar. A February 2009 VA examination report indicates the Veteran currently complains of pain, fatigability, and weakness of the left wrist. Furthermore, the February 2009 VA examination report reflects the injury to the left radius was a through and through injury, with damage to the carpal extensors and supinator muscle, with tissue loss and strength of 4/5. Finally, the Veteran did exhibit separate entry and exit scars on the left forearm that were adherent to the underlying tissue. In light of the evidence outlined above, the Board finds that the Veteran's residuals of a shell fragment wound to MG VIII, left radius, warrants an evaluation of 20 percent, but not greater, for a "moderately severe" injury to MG VIII. The Board observes a 20 percent evaluation is the maximum schedular evaluation for injuries to MG VIII on the non- dominant side. Finally, as there is no evidence of loss of bone substance of the left radius, an evaluation in excess of 20 percent is not warranted under Diagnostic Code 5212. Low Back The Veteran's lower spine disorder is rated under Diagnostic Code 5295 for lumbosacral strain. However, the Board observes that the record includes X-ray evidence of degenerative changes of the lumbosacral spine. Therefore, regulations relating to intervertebral disc syndrome are potentially applicable to the Veteran's claim. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). Initially, the Board observes that the schedular criteria for evaluating disabilities of the spine have undergone revision during the pendency of this appeal. The amendment affected general diseases of the spine and became effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected low back disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116- 119 (1997); see also 38 U.S.C.A. § 5110(g) (West 2002). Prior to September 26, 2003, disabilities manifested by limitation of motion in the lumbar spine were evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). A maximum evaluation of 40 percent was warranted where the condition was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint spaces, or with some of these characteristics with abnormal mobility on forced motion. Intervertebral disc syndrome (either preoperatively or postoperatively), rated under Diagnostic Code 5293, is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The criteria contained in Diagnostic Code 5293 provides for a 40 percent evaluation for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (3). Effective from September 26, 2003, disabilities of the thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2009). The Formula provides the following ratings, in relevant part: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees. Id. There are higher ratings available under the General Formula; however, they require proof of ankylosis, which is not present in the instant case. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2009). Having considered the evidence of record under both the former and new rating criteria, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his lumbar spine disorder at any point during the appeal period. In this regard, the Board notes that the Veteran's lumbar strain is manifested subjective complaints of pain, difficulty standing and sitting, fatigability and decreased range of motion. In addition, there is objective evidence of painful motion, tenderness and severe limitation of motion of the thoracolumbar spine. There is no evidence, however, of ankylosis of the thoracolumbar spine or the entire spine, nor is there evidence of incapacitating episodes having a total duration of at least six weeks during a twelve-month period. With regards to limitation of motion, the Board observes that, at 40 percent disabling, the Veteran is in receipt of the maximum evaluation allowable under both the new and old criteria. As such, a further discussion of limitation of motion is not necessary. The Board has considered whether the evidence of record demonstrates entitlement to a rating in excess of 40 percent under 38 C.F.R. § 4.71 Diagnostic Codes 5293-5243 (2003 and 2009), pertaining to intervertebral disc syndrome. However, there is no evidence of incapacitating episodes having a total duration of at least six weeks during a twelve month period. As such, an evaluation greater than 40 percent is not warranted under the rating criteria for intervertebral disc syndrome. The Board has also considered whether the evidence of record demonstrates entitlement to a rating in excess of 40 percent at any point during the appeal period, pursuant to other potentially applicable Diagnostic Codes under both the former and current criteria. However, the Board finds that it does not. In this regard, the Board observes that there is no competent medical evidence of ankylosis of the thoracolumbar spine or of the entire spine. Thus, a higher evaluation is not warranted under the General Rating Formula or under former Diagnostic Code 5289. As a preponderance of the evidence is against a higher evaluation, the benefit of the doubt rule does not apply, and the claim for an increased evaluation for residuals of a shell fragment wound to the low back must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Allergic Rhinitis The Veteran's service-connected allergic rhinitis with chronic maxillary sinusitis has been assigned a 10 percent disability evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6513 (2009). Under Diagnostic Code 6513, sinusitis resulting in one or two incapacitating episodes per year requiring prolonged (lasing four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting warrants a 10 percent evaluation. Id. A 30 percent evaluation is warranted when there is competent evidence of three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A maximum 50 percent evaluation is warranted when there is competent evidence of radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. An incapacitating episode of sinusitis is defined as one that requires bed rest and treatment by a physician. Id., Note. After reviewing the evidence of record in light of the diagnostic criteria outlined above, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's service-connected allergic rhinitis. In this regard, the Board observes the Veteran's sinusitis is manifested by occasional periods of non-incapacitating episodes, for which he takes antibiotics as needed. There is not, however, any evidence of record to suggest the Veteran suffers from incapacitating episodes of sinusitis. In this regard, a January 2003 VA examination report reflects the Veteran suffers from chronic sinusitis, though rhinitis was not exhibited at the time. The February 2009 VA examination report reflects the Veteran has no history of incapacitating episodes, suffering from two non- incapacitating episodes a year, each lasting up to two weeks. Symptoms include nasal congestion, excess nasal mucous, itchy nose, watery eyes and sneezing. The Board observes that the evidence of record, as discussed above, does not indicate the Veteran's sinusitis warrants an evaluation in excess of 10 percent at any point during the appeal period. In this regard, there is no competent evidence of incapacitating episodes due to sinusitis. Further, the Veteran has reported non-incapacitating episodes approximately two times per year. The Board notes a 30 percent evaluation requires three or more incapacitating episodes or more than six non-incapacitating episodes per year. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for allergic rhinitis with chronic maxillary sinusitis. In reaching its decision, the Board considered the benefit of the doubt rule. However, this rule does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Generalized Periodontitis The Veteran's service-connected generalized periodontitis is currently evaluated as noncompensable pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9912 (2009). Under Diagnostic Code 9912, a noncompensable evaluation is warranted where there is loss of less than half of the hard palate that is replaceable by prosthesis. Id. A maximum 20 percent evaluation is warranted where there is loss of less than half of the hard palate that is not replaceable by prosthesis. Id. Also applicable to the Veteran's appeal is Diagnostic Code 9905, for limited motion of temporomandibular articulation. Under Diagnostic Code 9905, inter-incisal range limited to 10mm warrants a 40 percent evaluation. Id. 30 percent, 20 percent and 10 percent evaluations are warranted where inter- incisal range is limited to 20mm, 30mm and 40mm, respectively. Id. Where lateral excursion is limited to 4mm, a 10 percent evaluation is warranted. Id. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Id. at Note. In reviewing the evidence of record, the Board finds that an evaluation of 20 percent, but not greater, is warranted for the Veteran's service-connected dental disorder. In this regard, a February 2009 VA examination report indicates the Veteran suffered traumatic damage to the left temporomandibular joint (TMJ) and articular disc. While there is no loss of the bone of the hard palate, temporomandibular articulation is limited to a range of 0mm to 30mm. As noted above, pursuant to Diagnostic Code 9905, inter-incisal motion limited to 30mm warrants a 20 percent evaluation. The Board has considered whether an evaluation in excess of 20 percent is warranted pursuant to other potentially applicable Diagnostic Codes. However, as there is no complete loss of the mandible, severe malunion of the mandible, loss of the ramus or hard palate, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's dental disorder. Final Considerations The Board acknowledges the Veteran's contentions that his service-connected disabilities warrant an evaluation greater than those assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. Part 4 with respect to determining the severity of his service-connected disabilities. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (2) (2009). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left leg disorder is denied. An evaluation in excess of 20 percent for residuals of a shell fragment wound to the left Achilles tendon is denied. An evaluation of 20 percent, but not greater, for residuals of a shell fragment wound to the left neck is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 10 percent for residuals of a shell fragment wound to the left chest is denied. An evaluation of 20 percent, but not greater, for residuals of a shell fragment wound to the left radius is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 10 percent for allergic rhinitis with chronic maxillary sinusitis is denied. An evaluation of 20 percent, but not greater, for generalized periodontitis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs