Citation Nr: 1003399 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 98-11 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a disability manifested by chest pain. 2. Entitlement to an initial rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula. 3. Entitlement to an initial rating in excess of 20 percent for residuals of a fracture of the left femur and intertrochanteric hip, postoperative. 4. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine. 5. Entitlement to an initial compensable rating for right trapezial fracture, prior to May 2, 2007. 6. Entitlement to a rating in excess of 10 percent for right trapezial fracture, from May 2, 2007. 7. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left wrist. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from August 1980 to December 1996. This appeal to the Board of Veterans' Appeals (Board) arises from a May 1997 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO denied service connection for various disabilities, as listed under the ISSUES.. In a June 2006 rating decision, the RO increased the disabilities for residuals of a fracture of the left femur and intertrochanteric hip, postoperative, and degenerative disc disease of the lumbosacral spine, to 20 percent respectively effective from the date of service connection, January 1997. In December 2006, the Board remanded the issues listed on the front page of this decision for additional action. In a July 2007 rating decision, the RO increased the disability rating for traumatic arthritis of the left wrist to 10 percent effective from the date of service connection, January 1997, and to 10 percent for right trapezial fracture, effective May 2, 2007. The United States Court of Appeals for Veterans Claims ("the Court") has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of higher ratings remains in appellate status. In August 2008, the Board again remanded the issues listed on the front page of this decision for additional action. The Board notes that the matter of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised in the record. The Board refers this matter to the RO for appropriate action. FINDINGS OF FACT 1. Chronic obstructive pulmonary disease (COPD), claimed as chest pain, is attributable to service. 2. The Veteran's residuals of a fracture of the left tibia and fibula do not cause more than moderate impairment of function. 3. The Veteran's residuals of a fracture of the left femur and intertrochanteric hip, postoperative, do not cause more than moderate impairment of function. 4. From May 9, 2006, but not prior to that time, the Veteran's degenerative disc disease of the lumbosacral spine, causes severe limitation of motion, but not separate neurological impairment, ankylosis of the spine, or incapacitating episodes. 5. The Veteran's right trapezial fracture did not result in limitation of motion prior to May 2, 2007. 6. The Veteran's right trapezial fracture, from May 2, 2007, causes limitation of motion, but no neurological impairment. 7. The Veteran's traumatic arthritis of the left wrist has caused limitation of motion, but no neurological impairment. CONCLUSIONS OF LAW 1. COPD was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). 2. The criteria for an evaluation in excess of 20 percent for residuals of a fracture of the left tibia and fibula have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5262 (2009). 3. The criteria for an evaluation in excess of 20 percent for residuals of a fracture of the left femur and intertrochanteric hip, postoperative, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5255 (2009). 4. As of May 9, 2006, but not prior, the criteria for a rating of 40 percent for degenerative disc disease of the lumbosacral spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5292 (2002). 5. The criteria for a compensable evaluation for right trapezial fracture, prior to May 2, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5010-5215 (2009). 6. The criteria for a rating in excess of 10 percent for right trapezial fracture, from May 2, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5010-5215 (2009). 7. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left wrist have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Code 5010-5215 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. VCAA letters dated in November 2004, January 2007, December 2008, and July 2009, fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claims. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the notification letter was not sent prior to the initial adjudication of the claimant's claim, this was not prejudicial to the claimant since the claimant was subsequently provided adequate notice and the claim was readjudicated and additional supplemental statements of the case (SSOCs) were provided to the claimant. In this case, the Board finds that the claimant was allowed a meaningful opportunity to participate in the adjudication of the claims and as such, the essential fairness of the adjudication process was not affected. The claimant was provided VCAA notification and had knowledge in that regard. As further noted below, VA has obtained all relevant evidence. Thus, even though the initial VCAA notice came after the initial adjudication, there is no prejudice to the claimant. If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Further, the service connection claim is being granted, so there is no prejudice in that regard. With regard to the increased-rating claims, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court)held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the claimant is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. In this case, as noted, there was no VCAA notice before service connection was granted. However, the subsequent VCAA notices specifically addressed the claims for higher ratings. These notices were legally sufficient and VA's duty to notify in this case has been satisfied. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, VA medical treatment records, identified private medical records, and Social Security Administration (SSA) records, have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). The examinations are adequate as the examiner reviewed the pertinent history, examined the Veteran, discussed current symptoms, and provided rationale. Therefore, the examinations in this case are adequate upon which to base a decision. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). II. Service Connection for a Disability Manifested by Chest Pain Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during the service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004). There must be competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In this case, the Veteran's service treatment records reflect complaints of chest pain. However, cardiac evaluations were normal. Post-service records do not show that the Veteran has a cardiac disability which is related to service; however, he does have respiratory impairment which competent evidence establishes is so related. June 1995 VA outpatient records showed that the Veteran was a cigarette smoker. In April 1997, the Veteran was afforded a VA examination. At that time, no cardiovascular or respiratory disability was indicated. An electrocardiogram (EKG) was performed which was normal. June and July 1997 VA records reflect that the Veteran attended a smoking cessation group. A review of the SSA records shows that the Veteran was admitted to a private facility in April 2005 with complaints of chest pain; however, his complaints were determined to be atypical and there were no significant findings on EKG. He was educated on how to quit smoking. He was seen the next month for follow-up and his EKG was normal. January 2006 private medical records showed via x-ray that the Veteran had pneumonia as well as COPD. It was noted that the Veteran was a smoker. In July 2007, his friend, A.W., indicated that the Veteran had problems breathing and used an inhaler. In May 2007, the Veteran was afforded a VA examination. At that time, the Veteran reported that he began having chest pain in 1994, following a motor vehicle accident. He also had shortness of breath which occurred with exertion and was relieved when he used an inhaler. The Veteran also indicated that he had fatigue and dizziness. There was no syncope, history of cardiac illnesses, including myocardial infarction, or congestive heart failure. Physical examination, x-rays, exercise stress test, and pulmonary function testing were performed. Cardiac disability was not shown; however, the Veteran had possible early obstructive pulmonary impairment. The diagnosis was COPD which was not responsive to bronchodilators. The examiner indicated that the chest pain was not cardiac in original. The EKG was negative and the exercise stress test did not reveal any changes suggestive of coronary artery disease. The examiner opined that the chest pain was probably related to his COPD, which was mild. The examiner further opined that the COPD was at least as likely as not attributable to his service in the military. In February 2009, the Veteran was afforded a VA mental disorder examination. It was noted that the Veteran began smoking during military service and had continued smoking cigarettes for the next 28 years. He then attended a smoking cessation class three years ago and quit smoking. The examiner did not feel that the Veteran had nicotine dependence. The examiner also did not feel that the x-rays showed active pulmonary disease. However, the Veteran was also afforded a VA respiratory examination which included a review of the claims file and the conduct of pulmonary function tests. As such, this examination is more probative as to the matter of current respiratory impairment. After reviewing the claims file, the pulmonary function tests, and the rest of the records, the examiner opined that it was quite likely that the Veteran's smoking started while he was in the service and he became addicted to nicotine and then continued to smoke. The examiner did noted that the pulmonary function tests showed only very mild obstructive ling disease involving the small airways which was early stage COPD. The examiner did not think that the complaints of chest pain were related to the COPD. In a June 2009 addendum, this examiner again opined that the COPD did not cause the chest pain, but that the COPD was definitely related to tobacco use which began during military service. The Board notes that, depending on the date of claim, no current lung disorder related to in-service cigarette smoking may be granted service connection. In VAOPGCPREC 19-97, the VA General Counsel (GC) addressed the question of under what circumstances service connection may be established for tobacco-related disability or death on the basis that such disability or death is secondary to nicotine dependence which arose from a veteran's tobacco use during service. In that opinion, the GC stated that a determination of whether the Veteran is dependent on nicotine is a medical issue. Specifically, the GC held that a determination as to whether service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, and therefore is secondarily service-connected pursuant to 38 C.F.R. § 3.310(a), depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits, (2) whether the veteran acquired a dependence on nicotine in service, and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by a veteran. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. VAOPGCPREC 19-97. In this opinion, the GC noted that secondary service connection may be established, under the terms of 38 C.F.R. § 3.310(a), only if a Veteran's nicotine dependence, which arose in service, and resulting tobacco use, may be considered the proximate cause of the disability or death which is the basis of the claim. In a May 5, 1997 memorandum from the VA Under Secretary for Health to the GC, the Under Secretary for Health affirmed that nicotine dependence may be considered a disease. Moreover, paragraph 5 of VA USB letter 20-97-14, from the Under Secretary for Benefits, addressed to all VBA offices and centers, directs that, in light of the Under Secretary for Health's opinion, the answer in all nicotine dependence cases on this issue is that nicotine dependence is a disease. Consistent with the Under Secretary of Health's opinion, the Board finds that nicotine dependence is a disease for purposes of VA benefits. As such, a finding of nicotine dependence must be supported by competent medical evidence. VAOPGCPREC 19-97. On July 22, 1998, the President signed into law a new provision, codified at 38 U.S.C.A. § 1103, essentially barring service connection for disability or death on the basis that a disease or injury is attributable to the use of tobacco products during service. 38 C.F.R. § 3.300. This provision, however, only applies to claims filed after June 9, 1998, and therefore, given the date of this claim, such ban does not apply to the Veteran's claim since it was received in January 1997. The Board notes that the Veteran's claim was for service connection for a disability manifested by chest pain. Although his claim was handled as a claim for cardiac impairment, the Board finds that it also encompassed a claim for respiratory impairment. The Court recently found that the use of "condition(s)" in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board is cognizant of the conflicting medical opinions regarding whether current complaints of chest pain are related to the current diagnosis of COPD. However, the medical opinions are both competent. Moreover, since there is competent evidence tending to show that chest pain is attributable to COPD, it is again reasonable that the Veteran's claim of service connection included a claim for respiratory impairment. As to the merits of that claim, one VA examiner opined that the Veteran did not have nicotine dependence; however, two other examiners opined that the Veteran's COPD is related to service. In particular, the most recent VA opinion, which included the most thorough review of the record and pertinent respiratory testing, concluded that the Veteran had nicotine addiction which originated during military service and which caused his COPD. The Board attaches the most significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, included an access to the accurate background of the Veteran, and included the pertinent respiratory testing. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Cohen, supra. Accordingly, service connection for COPD is warranted. III. Increased-Ratings 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the record shows that the Veteran had a left tibial rod removed in February 1997. A few months later, in April 1997, he was afforded a VA examination. At that time, the examiner identified multiple scars which did not cause damage to the underlying structures: an 8 centimeter well- healed scar of the left distal anterior thigh, a 5 centimeter well-healed scar of the left patella, a 6 centimeter well healed traumatic scar of the right lower extremity anterior tibial, several small round well healed surgical scars of the left knee; an 11 inch well healed surgical scar of the left lateral hip; and a 4.5 centimeter well healed surgical scar of the left lateral knee. All extremities exhibited full range of all extremities except for the left knee which exhibited motion of zero to 90 degrees of flexion with positive effusion of the left knee. There was also stiffness and crepitus of the left knee. However, McMurray and drawer testing were negative. The wrist exhibited full range of motion with no swelling, erythema, or deformity of any kind. The Veteran exhibited good strength in all extremities except the left lower extremity which seemed to have slightly decreased strength compared to the right extremity. The spine was straight and also exhibited full range of motion. There were positive paraspinal muscle spasms along the lumbar spine. Straight leg raising was negative bilaterally. Neurological testing did not reveal any abnormalities. X-rays of the left wrist revealed mild degenerative joint disease as well as findings suggesting of an old injury to the posterior aspect of the triangular carpal bone. X-rays of the right wrist were normal. X-rays of the lumbosacral spine revealed mild osteopenia, mild bi-concave deformity involving L2-5 vertebral bodies. X-rays of the left knee revealed osteopenia, most likely post-traumatic; mild supra- patellar effusion; mild degenerative joint disease, probably post-traumatic ; old healed fracture in the lateral tibial plateau; post-surgical change internal fixation of the femur and tibia with previous removal of fixation devices from the visualized tibia; healed fracture of the left femur with internal fixation with exuberant callous formation on the healed distal femoral fracture and on the greater trochanter with mild degenerative joint dise4ase of the left hip. The diagnoses were fracture of the right wrist and multiple fractures of the left lower extremity secondary to motorcycle accident with status post internal fixation of the left femur and left tibia with positive postoperative findings of well- healed surgical scars as well as radiographic findings; chronic left hip arthralgia and left knee arthralgia with positive clinical and radiographic findings of traumatic arthritis; bilateral wrist arthralgia with positive radiographic findings of mild degenerative joint disease of the left wrist only; and chronic lumbosacral strain with positive clinical findings of muscular spasms. In a May 1997 rating decision, service connection was granted for the following: fracture of the left tibial plateau and distal tibia and fibula, postoperative, with a 20 percent rating assigned from January 1997; low back strain with a 10 percent rating assigned from January 1997; fracture of the left femoral neck, femur mid-shaft and intertrochanter hip, postoperative, with a noncompensable rating assigned from January 1997; right trapezial fracture (wrist) with a noncompensable rating assigned from January 1997; and traumatic arthritis of the left wrist with a noncompensable rating assigned from January 1997. In June 1998, a memorandum from the Internal Medicine Clinic of the Department oft eh Air Force indicated that the Veteran had had problems with his joints, wrist, and leg since a May 1994 motorcycle accident, but other than occasional joint aches, he had never been documented as prevented from doing any activities and his musculoskeletal examination was normal. The Veteran was treated in February 1999. At that time, his wrists had symmetrical range of motion without obvious discomfort. The left lower extremity was significant for multiple well healed surgical scars. The left knee exhibited 5 degrees of flexion contracture with further flexion possible to 115 degrees. There was pseudolaxity to cause stress with a definite endpoint. He had some diffuse lateral joint line tenderness. There was 1- Lachman's with firm end point. There is no effusion or marked deformity of the left knee. The left ankle was lacking 5 degrees of dorsiflexion when compared to the opposite side. The left hip had pain-free motion. X-rays of the wrists and the left femur and knee revealed post-traumatic changes at the scaphoid trapezial joint of the left wrist consistent with prior trauma. The right wrist was unremarkable. The left femur had a statically locked second generation intermedullary nail with an additional screw outside the nail into the transfixing what was apparently a nondisplaced femoral neck fracture. All fractures had healed with a large wad of cellus about his femoral diaphyseal fracture. There was some grade II heterotrophic ossification at the tip of the greeter trochanter and the femoral nail was recessed perhaps 1.5 centimeters from the frontal tip of the trochanter. The left knee was significant for marked narrowing of the lateral compartment with depression and irregularity of the joint surface. There was evidence of prior hardware placement and removal for lateral tibial plateau fracture and tibial nail still remained. The diagnoses were post-traumatic intercarpal arthrosis, left wrist; post-traumatic gonoarthrosis of the left knee and retained hardware of the left femur. In September 2005, the Veteran was afforded a VA examination. Physical examination revealed that the Veteran had various scarring of the skin which was consistent with the prior medical report. None of the scarring was indicated to be symptomatic to include any muscle wasting or herniation. Examination of the left hip revealed normal gait. Flexion was estimated to 115 degrees. Extension was approximately 30 degrees. Adduction was 20 degrees, abduction was 40 degrees, internal rotation was 20 degrees, and external rotation was 40 degrees. The veteran had pain at the endpoints of all motions. Repetition was repeated and he had increasing pain with each repetition, with the range of motion remaining the same. There were no obvious signs of fatigability, lack of endurance, or incoordination. Examination of the left knee revealed no heat or effusion. He had full extension to zero and flexion limited to 110 degrees. Repetition times 5 showed no signs of fatigability, lack of endurance or incoordination. There was about the same amount of discomfort with the repetitions as there was to the first range of motion test. The knee was stable and McMurray testing was negative. Examination of the wrists revealed no swelling or deformity. Both wrists extended to 70 degrees and flexed to 70 degrees. There was no pain. Ulnar and radial deviation of both wrists was normal, radial at 20 and ulnar at 45. Repetitions of these motions showed approximately the same range of motion with each repetition times 5 without any increasing pain, fatigability or lack of endurance. Neurological testing revealed no deficits. X-rays were performed of the aforementioned joints. The diagnoses were status post motor vehicle accident with fractures of the left tibia plateau, the left tibia, the left femur, and the right wrist, with all resulting in post- traumatic arthritic changes. The scars were noted to not interfere with any function. The Veteran also had low back strain. Although the left wrist was mentioned, there was no diagnosis given. On May 9, 2006, the Veteran's spine was examined. The Veteran had a normal gait. His posture was upright without tripoding. His back had no abnormal curvature or muscular spasms. There was no wasting in the lower extremity musculature. The sensorium and EHL was symmetrical. There was no bowel or bladder dysfunction. Range of motion testing revealed forward flexion to 80 degrees with moderate pain. He had extension to 10-15 degrees at which point pain prevented further motion. The lateral bending to the left and right were both approximately 25-30 degrees with pain at the end point. Repetition was provided and the Veteran complained of having increasing pain with each successive repetition. There were no obvious signs of fatigability, lack of endurance, or incoordination. The Veteran was tender around the sacroiliac joints as well as L4-5. A computerized tomography (CT) and showed a mild bulge at L4-5 and L5-S1. In a June 2006 rating decision, the RO increased the disabilities for residuals of a fracture of the left femur and intertrochanteric hip, postoperative, and degenerative disc disease of the lumbosacral spine, to 20 percent respectively effective from the date of service connection, January 1997. According to a private July 2006 medical record, the Veteran was given a walking cane for the diagnosis of inflammatory arthritis/polimiosis. In addition, his friend, A.W., indicated that his medical conditions were worsening and his arthritis caused him pain when he walked to the extent that he now required a cane. In May 2007, the Veteran was afforded a VA examination. At that time, the Veteran denied having any problems with his left wrist. With regard to the left hip, there was no tenderness noted on examination. There was mo muscle atrophy or spasms. There was no edema, erythema, or warmth. Flexion was zero to 100 degrees with pain from 60 to 100 degrees. Extension was zero to 30 degrees with pain at 30 degrees. Adduction was zero to 25 degrees with no pain. Abduction was zero to 45 degrees with pain from 25 to 45 degrees. External rotation was zero to 60 degrees with pain at 60 degrees. Internal rotation was zero to 40 degrees with pain at 40 degrees. Repetition times 3 produced increased pain with all motions. However, there was no weakness, decreased endurance, or additional loss of motion. With regard to the right wrist, there was positive tenderness over the distal radius. Dorsiflexion was zero to 55 degrees with pain at 55 degrees. Palmar flexion was zero to 7o degrees with pain from 60 to 70 degrees. Radial deviation was from zero to 20 degree with pain at 20 degrees. Ulnar deviation was from zero to 35 degrees with pain at 35 degrees. Repetition times 3 produced increased pain with dorsiflexion, palmar flexion, radial, and ulnar deviation. There was no weakness, decreased endurance, or additional loss of motion. With regard to the back, there was positive tenderness over the lower lumbar vertebra and associated paraspinal muscles. There was no evidence of muscle atrophy or spasms. There was no kyphosis or scoliosis. Forward flexion was zero to 70 degrees with pain from 25 to 70 degrees. Extension was zero to 30 degrees with pain from 25-30 degrees. Left lateral flexion was zero to 30 degrees with pain at 30 degrees. Right lateral flexion was zero to 30 degrees with pain at 25- 30 degrees. Left lateral rotation was zero to 30 degrees with pain at 30 degrees. Right lateral rotation was zero to 30 degrees with pain at 30 degrees. Repetition times 3 produced increased pain, but no weakness, decreased endurance, or additional loss of motion. Straight leg raising was positive bilaterally at 45 degrees. Lesage's sign was negative bilaterally. X-rays of the tibia/fibula revealed remote post-traumatic changes in the distal third of the tibia and fibula with new bone formation on bone rarefaction. An intramedullary screw was noted in the distal tibia. X-rays of the right wrist revealed no evidence of acute skeletal injury, periosteal reaction or area of bone destruction. There was deformity and sclerosis of the greater multiangulars. Soft tissues were unremarkable. X-rays of the lumbosacral spine revealed that the cerebral alignment as well as the intervertebral space was essentially well preserved. There was no evidence of fractures, compression deformities, or subluxation. The pedicles were well preserved. It was an essentially normal x-rays. X-rays of the left hip revealed postoperative changes with the presence of an intramedullary rod and transfixing screws through the greater trochanter into the femoral head in satisfactory position. X-rays of the left femur revealed postoperative changes with the presence of an intramedullary rod and transfixing screws through the proximal femur and femoral head. The greater trochanter was deformed. There was an abundant callous formation around the fracture site at the end of the diathesis. There was no evidence of acute skeletal injuries. The diagnoses were post-traumatic arthritis secondary to motor vehicle accident involving the left knee, left hip, and right wrist, mildly disabling; status post fracture of the left tibial plateau, left tibia, left femur, with abundant callus formation, mildly disabling; chronic muscle strain of the paraspinous muscles of the lumbar spine area producing pain I the lumbosacral area, mildly disabling. In a July 2007 rating decision, the RO increased the disability rating for traumatic arthritis of the left wrist to 10 percent effective from the date of service connection, January 1997, and to 10 percent for right trapezial fracture, effective May 2, 2007. A. Residuals of a Fracture of the Left Tibia and Fibula The Veteran has been assigned a 20 percent rating under Diagnostic Code 5262. Diagnostic Code 5262 addresses disorders of the tibia and fibula and is therefore the most appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under this provision, a 40 percent evaluation is warranted where nonunion of the tibia and fibula is productive of loose motion requiring a brace. With evidence of malunion of the tibia and fibula, a 30 percent evaluation is warranted with marked knee or ankle disability, a 20 percent rating is warranted with moderate knee or ankle disability, and a 10 percent evaluation is warranted with slight knee or ankle disability. The Veteran has been assigned a 20 percent rating based on moderate disability. In order for a higher rating to be assigned, the evidence must show marked knee or ankle disability. In order to evaluate if the knee or ankle has marked disability, consideration should be given to normal and abnormal function under the rating schedule. Certain diagnostic codes are relevant as to that matter. Diagnostic Code 5260 provides for a non-compensable evaluation where flexion is limited to 60 degrees; a 10 percent evaluation where flexion is limited to 45 degrees; a 20 percent evaluation where flexion is limited to 30 degrees; and 30 percent evaluation where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a non-compensable rating is warranted where extension is limited to 5 degrees; a 10 percent evaluation requires extension limited to 10 degrees; a 20 percent evaluation requires extension limited to 15 degrees; a 30 percent evaluation requires extension limited to 20 degrees; a 40 percent evaluation requires extension limited to 30 degrees; and a 50 percent evaluation requires extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion in a knee joint is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5271 evaluates the ankle disability based on limitation of motion. Moderate limitation of motion of the ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. Part 4, Code 5271. Normal range of motion in an ankle is considered to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. During the appeal period, severe disability was not demonstrated. Range of motion was not limited to a compensable degree under the pertinent diagnostic codes. Even considering pain and other DeLuca factors, range of motion was not limited to a severe or marked degree for the left knee or left ankle. Likewise, although there was effusion, stiffness, and crepitus of the left knee, the functional impairment was not restricted to a severe or marked degree. See, for example, VA examinations dated April 1997, February 1999, and September 2005. Accordingly, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula. B. Fracture of the Left Femur and Intertrochanteric Hip, Postoperative The Veteran's left hip has been assigned a 20 percent rating under Diagnostic Code 5255. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255 provide criteria for rating hip and thigh disabilities. Normal hip flexion is from zero to 125 degrees and normal hip abduction is zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5250 requires ankylosis of the hip. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 86). However, there is no evidence of ankylosis or complete immobility of the left hip. Diagnostic Code 5251 provides a 10 percent rating based on limitation of extension of the hip. The Veteran is already receiving higher than a 10 percent rating; thus a higher rating is not available under this code. Diagnostic Code 5252 provides a 40 percent rating where flexion of the hip is limited to 10 degrees. A 30 percent rating is warranted where flexion is limited to 20 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 10 percent rating is warranted where flexion is limited to 45 degrees. In this case, the evidence does not reveal flexion is limited to 20 degrees or less such that a higher rating is warranted. However, flexion, considering DeLuca factors, was limited to 100 degrees, at worse. In sum, the Veteran's disability is not manifested by flexion limited to 20 degrees or the functional equivalent thereof. Diagnostic Code 5253 provides a 10 percent rating for limitation of adduction, such that the legs cannot cross. A 20 percent rating is warranted for limitation of abduction of the thigh, with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Veteran is already receiving a 20 percent rating; thus a higher rating is not available under this code. Under Diagnostic Code 5255, where there is malunion with moderate knee or hip disability, a 20 percent rating is warranted; and where malunion produces marked knee or hip disability, a 30 percent rating is assigned. Still higher ratings are assignable for fracture of the surgical neck with false joint, or for fracture of the shaft or anatomical neck of the femur with nonunion, which the Veteran does not have. The Veteran also does not have marked knee or hip disability. As noted above, there is no marked left knee disability. With regard to the left hip, normal hip flexion ranges from zero to 125 degrees and normal hip abduction ranges from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. As noted, at worse and considering DeLuca factors, flexion was limited to 100 degree. Abduction was limited to 25 degrees. The Veteran still retains significant motion in his hip and knee. Although he has some limitation of motion in both areas with pain, this impairment is contemplated in the 20 percent rating for moderate impairment. Accordingly, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for fracture of the left femur and intertrochanteric hip, postoperative. C. Degenerative Disc Disease of the Lumbosacral Spine The Board notes that the schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal. First, the rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). More specifically, effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293. See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. According to that renumbering, Diagnostic Code 5237 now governs ratings of lumbosacral strain, Diagnostic Code 5239 governs ratings of spondylolisthesis or segmental instability, and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome. See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2006)). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). As such, the Board will assess the severity of the veteran's service-connected low back disability under both the former, and revised criteria pertaining to ratings of the spine. 1. Prior to September 23, 2002 changes The RO assigned a 20 percent rating based on neurological impairment. The records reflect that the Veteran demonstrated positive paraspinal muscle spasms. Under Diagnostic Code 5292, effective prior to September 23, 2002, limitation of motion of the lumbar spine was rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 40 percent disabling when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The 40 percent rating was the maximum rating under that code. Range of motion was noted to be full. Therefore, a higher rating was not warranted under this code. Under Diagnostic Code 5295, effective prior to September 23, 2002, a 10 percent rating was assigned for lumbosacral strain with characteristic pain on motion. If there was lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a 20 percent evaluation was in order. Finally, a maximum schedular rating of 40 percent was awarded when lumbosacral strain is severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the 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. Although there was a diagnosis of lumbosacral strain, there was not evidence of severe impairment and none of the listed criteria were shown. Effective prior to September 23, 2002, a 10 percent rating was provided for mild intervertebral disc syndrome with recurring attacks; a 20 percent rating was provided for moderate intervertebral disc syndrome with recurring attacks; a 40 percent rating was provided for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 60 percent rating was provided for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief. As noted, the Veteran was assigned a 20 percent rating under this code. However, a higher rating is not warranted as severe impairment was not shown. There was no sciatic neuropathy or similar symptoms. Diagnostic Codes 5286 and 5289 provided ratings for complete bony fixation (ankylosis) of the spine. Here, the evidence showed that the Veteran did not have ankylosis of the spine. Therefore, rating premised on ankylosis is not warranted. Diagnostic Code 5285 provides that vertebral fractures: With cord involvement, bedridden, or requiring long leg braces were 100 percent disabling. Without cord involvement; abnormal mobility requiring neck brace (jury mast) were 60 percent disabling. In other cases, they were rates in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. In this case, while the Veteran had some deformity at L2-5 vertebral bodies, there were no vertebral fractures. Thus, a rating under this code is not warranted. 2. Pursuant to September 23, 2002 changes The revised, or "new," criteria pertaining to ratings for intervertebral disc syndrome, under Diagnostic Code 5293 were amended effective from September 23, 2002. The revisions were designed to accommodate acute exacerbations or flare-ups of disc disease. As such, the revised regulations provided that intervertebral disc syndrome (preoperatively or postoperatively) should be 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 neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The revised rating schedule for rating intervertebral disc syndrome is as follows: A 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned with incapacitating episodes of having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is 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. Note (2): 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. Note (3): 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. The Board must consider both the criteria in effect prior to September 23, 2002, and the criteria which came into effect as of September 23, 2002. The evidence during this rating period is consistent with the prior rating period, as noted above. Although there was muscle spasm, there was no limitation of motion. As such, separate ratings were not warranted. In addition, there is no evidence of incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician. 3. Pursuant to September 26, 2003 changes The second revision to the Rating Schedule governing the rating of spinal disabilities was effective September 26, 2003. At that time, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute a general rating formula for evaluating diseases and injuries of the spine, including lumbosacral strain under Diagnostic Code 5237, spinal stenosis under Diagnostic Code 5238, degenerative arthritis of the spine under Diagnostic Code 5242, and intervertebral disc syndrome under Diagnostic Code 5243. The Schedule for Rating Disabilities, 38 C.F.R. Part 4, institutes a general rating formula for evaluating diseases and injuries of the spine, including lumbosacral strain under Diagnostic Code 5237, spinal stenosis under DC 5238, degenerative arthritis of the spine under Diagnostic Code 5242, and intervertebral disc syndrome under Diagnostic Code 5243. The Veteran's low back disability may also be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6). The General Rating Formula for Diseases and Injuries of the Spine, for Diagnostic Code 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) provides: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Unfavorable ankylosis of the entire spine is rated as 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is rated as 50 percent disabling. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine is rated as 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 is rated as 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height is rated as 10 percent disabling. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Diagnostic Code 5243 indicates to rate intervertebral disc syndrome either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides: With incapacitating episodes having a total duration of at least six weeks during the past 12 months is rated as 60 percent disabling. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is rated as 40 percent disabling. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months is rated as 20 percent disabling. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months is rated as 10 percent disabling. Note (1): For purposes of evaluations under DC 5243, an incapacitating episode is 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. 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 incapacitating episodes under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2009). The question of separate ratings for any neurologic abnormalities under neurological codes must be addressed. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2009). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 3 8 C.F.R. § 4.124 (2009). With respect to neurologic manifestations, Diagnostic Code 8520 addresses the sciatic nerve. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. In this case, a rating in excess of 20 percent is warranted. Under the old version of the rating schedule, the Veteran demonstrated severe limitation of motion when DeLuca was considered based on his extension and flexion. Likewise, under the new schedule, he also demonstrated limitation of flexion warranting a 40 percent rating. At worse, considering DeLuca, the Veteran demonstrated extension limited to 10 degrees which represented severe impairment on his May 9, 2006 VA examination. Later, on a May 2007 VA examination, he demonstrated forward flexion of the lumbar spine to 25 degrees (since the Veteran had painful impairment demonstrated at that point). Thus, the Veteran has "forward flexion of the thoracolumbar spine to 30 degrees or less." As such, a 40 percent rating is warranted on that basis. Since severe impairment was initially shown on the May 2006 VA examination; thus, that is the appropriate effective date for the increase. The 40 percent rating was the highest rating for limitation of motion under Diagnostic Code 5292. Further, the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine, so a 50 percent rating is not warranted under the new rating schedule, either. Under the old code, a higher rating was not warranted based on neurological impairment under Diagnostic Code 5293. On the pertinent examinations, the Veteran did not demonstrate neurological impairment, such as muscle spasms, sciatica, or similar findings. The Veteran also did not have a vertebral fracture or ankylosis; therefore higher ratings were not warranted on those bases, either. Under the subsequent versions of the rating schedule, separately ratable neurological impairment, as noted, to include any sciatica, bowel, or bladder impairment. In addition, there were no incapacitating episodes, as defined by the rating schedule. Accordingly, a higher rating of 40 percent, but no more, is warranted from May 9, 2006, based on severe limitation of motion under Diagnostic Code 5292. The Veteran's current rating was assigned under Diagnostic Code 5293. However, the Board finds that the rating under Diagnostic Code 5292 is more advantageous to the Veteran. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). D. Right and Left Wrist Disabilities Prior to May 2, 2007, the Veteran was assigned an initial noncompensable rating for right trapezial fracture, prior to May 2, 2007. From that date, a 10 percent rating was assigned. The left wrist disability has been assigned a 10 percent rating for the entire appeal period. Under Diagnostic Code 5215, limitation of motion of the wrist is rated. A 10 percent rating is warranted for limitation of motion of the wrist (major or minor), such that dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. That is the highest schedular disability rating available under that Diagnostic Code. See 38 C.F.R. § 4.25. With regard to the right wrist, prior to May 2, 2007, limitation of motion was not shown. As such, the non- compensable rating was appropriate. With regard to the rating fro May 2, 2007, for the right wrist, and for the entire appeal period for the left wrist, the Veteran is receiving the highest rating. Higher ratings are available under 38 C.F.R. § 4.71a, Diagnostic Code 5214; however, that provision requires the presence of ankylosis, a manifestation not present in the Veteran's case. Although there are other diagnostic codes that potentially relate to impairment of the wrist, after reviewing these alternative provisions, the Board can find no basis on which to assign a higher rating for either the right or left wrist disabilities. For example, there is no evidence of peripheral nerve impairment so as to warrant application of Diagnostic Code 8515. Further, although the Veteran has arthritis due to trauma, confirmed by x-ray finding, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Veteran has already been rated on that basis. The Board has also considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain per DeLuca. A review of the record, however, shows that there are no additional factors which would restrict motion to such an extent that the criteria for a higher rating would be justified. Even considering DeLuca, the Veteran retains motion within contemplation of the 10 percent rating. Regardless, because the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider 38 C.F.R. § 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, the preponderance of the evidence is against a compensable rating for the right wrist prior to May 2, 2007, and in excess of 10 percent for the right wrist from May 2, 2007 and for the left wrist for the entire appeal period. E. Conclusion The Board notes that although the Veteran has residual scarring due to his service-connected disabilities, there is no basis for a rating based on the residual scarring due, as the residual scarring is asymptomatic and does not cover a sufficient area. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (1997-2009). 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). 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); aff'd, Thun v. Shinseki, No. 2008-7135, 2009 WL 2096205 (Cir. 2009), 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 disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria found in the rating schedule for the disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disabilities beyond the initial injuries. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. 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. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the Veteran has not shown in this case is that the service-connected disability's manifestations have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Entitlement to service connection COPD is granted. Entitlement to an initial rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula is denied. Entitlement to an initial rating in excess of 20 percent for residuals of a fracture of the left femur and intertrochanteric hip, postoperative, is denied. Entitlement to a rating of 40 percent for degenerative disc disease of the lumbosacral spine is granted from May 9, 2006, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for right trapezial fracture, prior to May 2, 2007, is denied. Entitlement to a rating in excess of 10 percent for right trapezial fracture, from May 2, 2007, is denied. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left wrist, is denied. ______________________________________________ Douglas E. Massey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs