Citation Nr: 1316829 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 06-37 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a lung disorder to include lung scarring or chronic bronchitis, claimed as due to exposure to mustard gas. 2. Entitlement to an initial disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine. 3. Entitlement to an initial compensable disability rating prior to January 11, 2011 for residuals of fracture of the left distal fibula and tibia. 4. Entitlement to an initial disability rating in excess of 10 percent from January 11, 2011 for residuals of fracture of the left distal fibula and tibia. (In a separate decision being issued concurrently the Board addresses the claims of entitlement to service connection for: (1) right hip degenerative joint disease, (2) bowel incontinence associated with degenerative joint disease of the lumbar spine, (3) urinary incontinence associated with degenerative joint disease of the lumbar spine, (4) chondromalacia, left knee, (5) chondromalacia, right knee, (6) double vision, (7) dizziness, (8) a heart disorder, (9) a gastrointestinal disorder other than hiatal hernia, to include as due to posttraumatic stress disorder (PTSD), (10) a sleep disorder to include as due to PTSD, (11) hiatal hernia; (12) entitlement to an initial disability rating in excess of 20 percent for right leg radiculopathy associated with degenerative joint disease of the lumbar spine; (13) entitlement to an initial compensable disability rating for erectile dysfunction associated with degenerative joint disease of the lumbar spine; and (14) entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on the basis of being housebound.) REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from April 1953 to April 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, and Albuquerque, New Mexico, which denied the benefits sought on appeal. The case is currently under the jurisdiction of the Albuquerque, New Mexico RO. Significantly, in a September 2006 rating decision, the RO in Albuquerque, New Mexico, granted service connection for degenerative joint disease, lumbar spine, and assigned that disability a 40 percent rating effective August 9, 2005; and granted service connection for residuals of fracture of the left distal fibula and tibia, and assigned that disability a noncompensable (zero percent) rating effective August 9, 2005. In an April 2011 rating decision, the RO in Muskogee, Oklahoma increased the evaluation for residuals of fracture of the left distal fibula and tibia from zero to 10 percent, effective January 11, 2011. The issue of entitlement to service connection for left lower extremity peripheral neuropathy symptomatology other than as associated with degenerative joint disease of the lumbar spine has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The evidence does not show the presence of a current lung disorder to include lung scarring or chronic bronchitis. 2. The Veteran's degenerative joint disease of the lumbar spine has 45 degrees of forward flexion with painful motion productive of at most, 30 degrees of forward motion; and is not productive of incapacitating episodes, or favorable ankylosis of the thoracolumbar spine, or associated objective neurologic abnormalities other than right leg radiculopathy. 3. The Veteran's residuals of fracture of the left distal fibula and tibia prior to January 11, 2011 are asymptomatic. 4. The Veteran's residuals of fracture of the left distal fibula and tibia from January 11, 2011 are manifested by limitation of motion of the ankle to 10 degrees of dorsiflexion, and to 22 degrees of plantar flexion; and is not manifested by knee disorder, tibia and fibula impairment with nonunion or marked malunion of the ankle, or ankylosis of the ankle or other ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disorder to include lung scarring or bronchitis, have not been met. 38 U.S.C.A. §§ 101(2), (24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for a rating in excess of 40 percent for degenerative joint disease of the lumbar spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for an initial compensable rating prior to January 11, 2011 for residuals of fracture of the left distal fibula and tibia, have not been met. 38 U.S.C.A. §§ 1155, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2012). 4. The criteria for an initial 20 percent rating from January 11, 2011 for residuals of fracture of the left distal fibula and tibia, have been met. 38 U.S.C.A. §§ 1155, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5262, 5271 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. Letters addressed to the Veteran and dated between August 2005 and March 2012 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). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). A service treatment record, and the Veteran's VA and private medical treatment records, have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). In a response to a request for service treatment records, in March 2006 the National Personnel Records Center reported that the Veteran's service treatment records were missing due to a "fire related" cause. Under such circumstances there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In light of that, the Board has undertaken it's analysis of this case consistent with the heightened obligation of Cuevas and O'Hare. However, though the case law increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant, the case law does not lower the legal standard for proving a claim for service connection. See Russo v. Brown, 9 Vet. App. 46 (1996). VA did not afford the Veteran an examination of his claimed lung disorder to include lung scarring or bronchitis. However, as there is no competent evidence of any current lung disorder, to include lung scarring or bronchitis, an examination is not necessary under 38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). VA examinations of the Veteran's lumbar spine disability and associated neurological conditions were conducted in September 2006, March 2010, and April 2012. VA examinations of the Veteran's residuals of fracture of the left distal fibula and tibia were conducted in June 2006 and January 2011. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes, as they generally considered the evidence of record including the Veteran's reported history; were based on an examination of the Veteran; made all findings necessary for a proper determination in the matter; and provided a cogent rationale for their opinions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Lung Disorder to Include Lung Scarring or Bronchitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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 service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). If a Veteran served 90 days or more, and bronchitis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran claims entitlement to service connection for a lung disorder, to include lung scarring or bronchitis, claimed as due to exposure to mustard gas. VA regulations include a provision for presumptive service connection for certain disabilities based on evidence of full body exposure to mustard gas in service. The record shows that the Veteran's claim was processed at the Muskogee RO and that a Department of Defense inquiry determined that the Veteran did not receive full-body exposure to mustard agent during active military service. Therefore, service connection is not warranted on the basis of the presumptions provided under provisions of 38 C.F.R. § 3.316, for cases involving exposure to mustard gas. A September 2002 VA treatment record shows that the Veteran's wife reported that the Veteran coughs all the time, and was worse when he was exposed to sheet rock. At that time the Veteran was self treating with allergy medication. The report contains an assessment that includes allergic rhinitis. VA treatment records show that the Veteran was assessed as having acute bronchitis in February 2006. VA treatment records dated from August to December 2006 include problem lists and assessments that include acute bronchitis and allergic rhinitis. A March 2007 VA treatment record includes notation of a past medical history of acute bronchitis; and allergies, sinus, pollen, breathing problem; may be pine pollen. VA treatment records in May 2008 and May 2009 include active problem lists and assessments of allergic rhinitis. These do not show any assessments of a current chronic bronchitis condition. A May 2012 VA primary care note contains an assessment of seasonal rhinitis. A June 2012 VA treatment record includes allergic rhinitis on a problem list. Neither of these records list a chronic bronchitis condition as a problem or assessment. The clinical record does not show a present a chronic lung disorder, to include lung scarring or chronic bronchitis, at any time during the course of the appeal. Although a few VA treatment records in 2006 include an assessment of acute bronchitis, there is no evidence of a chronic bronchitis disorder or of chronicity of symptomatology constituting a chronic bronchitis condition on which to base entitlement to service connection. See Dorland's Illustrated Medical Dictionary 256 (31st ed. 2007). In the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, there is no evidence that the Veteran has a chronic disorder comprised of seasonal or allergic rhinitis symptomatology that has been etiologically related to service or to any service-connected disability. Allergic rhinitis was first assessed in 2002. There is no clinical evidence linking this condition to the Veteran's period of service that ended in 1955. Nor has the Veteran claimed that he has any seasonal or allergic rhinitis that is related to service. The preponderance of the evidence is against the claim for service connection for a lung disorder to include lung scarring or bronchitis, claimed as due to exposure to mustard gas; there is no doubt to be resolved; and service connection is not warranted. II. Evaluation of Disabilities Applicable Law for Evaluation of Disabilities Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 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. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the 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 pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. If limitation of motion is absent, and there is X-ray evidence of degenerative arthritis involvement of 2 or more major joints or 2 or more minor joint groups, and there are occasional incapacitating exacerbations, then a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A. Degenerative Joint Disease of the Lumbar Spine Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) 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 § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011). VA's Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, 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 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. (See also 38 C.F.R. § 4.71a, Plate V). 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, in the case of thoracolumbar spine disability, an unfavorable ankylosis is a condition in which 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. If intervertebral disc syndrome is presented 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, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Facts A February 2005 VA neurology EMG consultation report concluded with an impression that the left peroneal, tibial and sural nerve studies were within normal limits, as were the EMG of the left leg, hip and paraspinous muscles. The examiner found that there was no sign of peripheral neuropathy or radiculopathy that accounts for the Veteran's complaints. The examiner opined that the Veteran had mostly hip pain that radiates into the femur. A February 2006 VA treatment record shows that the Veteran reported complaints of pain of both lower extremities that started as tingling sensation for the past two years. The record contains an assessment of both lower extremities pain with paresthesias/mild to moderate spinal stenosis and foraminal narrowing. Tingling/pain over antero-lateral aspect of right thigh/leg, goes down to above the right ankle. The examiner noted that a MRI of the lumbar spine showed spinal stenosis at L2-3 and severe foraminal narrowing at L4-5 level, which explained pain radiating to both extremities. The September 2006 VA examination report shows that the Veteran reported complaints regarding his low back including that his right leg went numb, recovering in 15 to 20 minutes, and occurring about once a week, and that he had no bladder or bowel control problems. On review of systems, there was no history of neoplasm, urinary incontinence, urinary urgency, frequency, nocturia, fecal incontinence, or obstipation. The Veteran did have erectile dysfunction. He also had numbness and paresthesias going down his right lower extremity that comes and goes. The Veteran reported he had no history of fatigue, decreased motion, weakness, or spasm. But he did have stiffness and pain that was dull and achy; and radiating pain down the right leg that was sharp and shooting. The back pain and right leg pain were constant. He reported that every two to three weeks he had severe flare-ups of the spinal condition lasting hours. On examination of the muscles of the spine, he had objective findings of spasm of the right thoracic sacrospinalis, and pain on motion on the left and right. He had no objective evidence of spasm on the left, or of any atrophy, guarding, tenderness or weakness on either side. The examiner noted that the condition was severe enough to be responsible for abnormal gait or spinal contour, resulting in stooped posture, asymmetry in appearance, a little stooped forward and putting more weight on the left leg and with an antalgic gait. The spinal curvature showed no gibbus, kyphosis, list, lumbar flattening or lordosis, or reverse lordosis. Motor examination of the muscles of the lower extremities resulted in findings of motor strength ranging from 2/5 to 4/5, and predominantly found to be equivalent to active movement against some resistance (4/5). Muscle tone was found to be abnormal and associated with right paralumbar spasm. There was no muscle atrophy. Findings for sensory examination of the lower extremities ranged from NT/2 bilaterally for vibration and pain, to 2/2 for light touch and position sense. Reflex examination was normal for abdominal reflexes; and hypoactive for knee jerk and ankle jerk. Plantar (Babinski) reflex examination was normal. On rectal examination the Veteran had no symptoms suggestive of any problem. The examiner recorded findings that there was no thoracolumbar spine ankylosis. Findings from range of motion studies of the thoracolumbar spine included: Flexion: active from zero to 45 degrees, with pain beginning at 30 degrees; and passive from 9 degrees to 50 degrees, with pain beginning at 30 degrees. Resisted isometric movement was normal. The examiner noted there was pain on active and passive motion and after repetitive use. After repetitive use, there was additional loss of motion of zero to 30 degrees, due to pain. Extension: active was from zero to 15 degrees, with pain beginning at 10 degrees; and passive from zero to 20 degrees with pain beginning at 10 degrees. Resisted isometric movement was normal. The Veteran had pain on active and passive motion and after repetitive use. After repetitive use, there was additional loss of motion of zero to 10 degrees, due to pain. Lateral flexion to the left: active was from zero to 20 degrees, with pain beginning at 10 degrees; and passive from zero to 20 degrees with pain beginning at 10 degrees. Resisted isometric movement was normal. The Veteran had pain on active and passive motion and after repetitive use. After repetitive use, there was additional loss of motion of zero to 10 degrees, due to pain. The examination report's range of motion findings above for lateral flexion to the left, are equivalent to the range of motion findings for (1) lateral flexion to the right, (2) lateral rotation to the left, and (3) lateral rotation to the right. The report noted there was no vertebral fracture and Lasegue's sign was not positive. The report contains imaging study results from a May 2005 MRI examination, including an impression of (1) mild to moderate canal stenosis at L2-3 with moderate left neural foraminal narrowing at this level; (2) severe right neural foraminal narrowing at L4-5. The report shows that the Veteran was currently employed part-time in a current occupation of "paper work" with a 10 to 20 year duration of employment. He reported that his back condition precluded him from working full-time. The report contains a diagnosis of degenerative joint disease of the lumbar spine, with radicular pain down the right leg. The examiner opined that this resulted in significant effects impacting occupational activities; including decreased mobility, problems with lifting and carrying, difficulty reaching, and pain. The examiner also opined that the back condition resulted in effects on usual daily activities, preventing such activities as exercise, sports, recreation; and resulting in moderate to severe effects on other activities, and no effects on feeding. The examiner opined that with respect to range of motion examination, the Veteran's condition was positive for Deluca factors, because pain limited his range of motion on repetitive motion, secondary to low back pain due to severe degenerative joint disease with some spinal and foraminal narrowing. He also had radicular pain down the right lower extremity that had not allowed the Veteran to work full-time. A March 2010 VA examination shows that the Veteran reported complaints of bilateral leg nerve condition. After examination, in pertinent part, the examiner opined that (1) the claimed right hip degenerative joint disease "is less likely than not due to the lumbosacral spine condition", and (2) the Veteran has radiculopathy symptoms in the right leg at least as likely as not due to the lumbosacral spine condition; and symptoms below the knee in the left leg is less likely than not due to the lumbosacral spine condition. As rationale for the two opinions, the examiner stated that the Veteran reported he injured the right hip in a parachute jump and the degenerative disease of this joint likely resulted from that incident. The examiner also stated that the left leg symptoms were only below the knee and not corresponding to a typical lumbar radiculopathy distribution, and likely represented recurrent residuals of remote fracture of the lower left leg. An April 2012 VA examination report shows findings regarding right leg radiculopathy, and bladder and bowel function. Analysis A. Degenerative Joint Disease Based on Limitation of Motion The Veteran's degenerative joint disease of the lumbar spine is currently evaluated as 40 percent disabling on the basis of limitation of motion. Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's low back disability does not warrant a higher disability rating. To warrant a disability higher than 40 percent on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of unfavorable ankylosis of the entire thoracolumbar spine, or of unfavorable ankylosis of the entire spine. There is no evidence of record showing ankylosis. A rating higher than 40 percent is not warranted based on range of motion criteria. Degenerative Disc Disease Rating Based on Incapacitating Episodes There is no evidence of any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician, having a total duration of at least six weeks during a twelve month period. There is no evidence of record showing any incapacitating episodes. A rating higher than 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The preponderance of the evidence is against the grant of a rating in excess of 40 percent on the basis of limitation of motion or incapacitating episodes; there is no doubt to be resolved; and a rating in excess of 40 percent is not warranted. Separate Ratings for Associated Objective Neurologic Abnormalities A separate decision is being issued concurrent with this one which addresses the Veteran's appeal with respect to issues of entitlement to service connection for (1) bowel incontinence associated with degenerative joint disease of the lumbar spine, and (2) urinary incontinence associated with degenerative joint disease of the lumbar spine; and entitlement to a rating in excess of 20 percent for right leg radiculopathy associated with degenerative joint disease of the lumbar spine. With respect to any other associated objective neurologic abnormalities, a February 2005 VA neurology EMG consultation report shows the following findings: normal bulk and tone in the legs; no sensory loss in the feet; and strength was 5/5 in both legs. Reflexes were 2+ in the knees but absent at the ankles. After nerve conduction study, the report contains an impression of the left peroneal, tibial and sural nerve studies are within normal limits, as is the EMG of the left leg, hip and paraspinous muscles. The provider stated there was no sign of peripheral neuropathy or radiculopathy that accounts for complaints. The examiner wondered if there was a hip problem, noting the Veteran had mostly hip pain that radiated into the femur. During a March 2010 VA examination the Veteran reported complaints of left lower extremity nerve condition including pain, that he associated with his low back disability. After examination the examiner opined that the symptoms in the left leg were less likely than not due to the lumbosacral spine condition. The examiner stated as rationale that the left leg symptoms were only below the knee and did not correspond to a typical lumbar spine radiculopathy distribution, and likely represented recurrent residuals of a remote fracture of the lower left leg. Although VA treatment and examination records show complaints of left lower extremity symptoms, they do not attribute such to the degenerative joint disease of the lumbar spine. Concomitantly, the comprehensive VA examination which does address the matter specifically finds that the left lower extremity symptoms are not associated with the Veteran's degenerative joint disease of the lumbar spine. The preponderance of the evidence is against the claim that a separate rating for a left lower extremity disability, or any other secondary disability other than those on appeal in the concurrently issued decision is warranted; there is no doubt to be resolved. B. Residuals of Fracture of the Left Distal Fibula and Tibia The Veteran's residuals of fracture of the left distal fibula and tibia have been evaluated at a noncompensable level (zero percent rating) prior to January 11, 2011, and at 10 percent from January 11, 2011, pursuant to Diagnostic Code 5262. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5262 (2012). Diagnostic Code 5262 sets forth the criteria for rating impairment of the tibia and fibula. Pursuant to Diagnostic Code 5262, a noncompensable rating is for assignment if the criteria for the minimum compensable rating are not met. A 10 percent rating is appropriate for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating requires malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating requires malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is assigned for nonunion of, with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. A June 2006 VA examination report shows that the Veteran reported he was not having any problem with the left leg. The report noted there was no history of bone neoplasm or osteomyelitis; and there was no inflammation, pain, abnormal motion, deformity, or need for assistive device. The condition did not affect motion of a joint and there were no flare-ups of bone or joint disease. On examination, there was no evidence of leg shortening, no abnormal bone or joint, and no evidence of abnormal weight bearing. There was no ankylosis or constitutional signs of bone disease. The Veteran was able to walk one-quarter of a mile. There was no evidence of genu recurvatum, and there was no malunion of the os calcis or astragalus, and no bone neoplasm. A January 11, 2011 VA examination report shows that the Veteran reported that his left ankle had progressively worsened, and that he had constant pain localized on both sides, extending up his lower leg. He had a dull ache with a severity of 4/10, for which he took Tylenol with poor response. The Veteran reported symptoms of the left ankle including giving way, pain, stiffness, decreased speed of joint motion, and affected joint motion. He reported he did not have instability, deformity, incoordination, weakness, episodes of dislocation or subluxation or locking episodes. He also did not have effusions, inflammation, or flare-ups. On examination he had a normal gait, and abnormal shoe wear. He had no loss of a bone or part of a bone, no recurrent dislocations, no inflammatory arthritis, no ankle instability, or tendon abnormality. He had pain at rest. On range of motion study he had no objective evidence of pain with active motion. He had left dorsiflexion from zero to 10 degrees; left plantar flexion from zero to 22 degrees. There was no additional limitation of motion or pain with repetitive motion. There was no joint ankylosis. The report contains a diagnosis of fracture left distal fibula and tibia. Prior to January 11, 2011 The evidence prior to January 11, 2011 shows that the Veteran's disability of residuals of fracture of the left distal fibula and tibia is essentially productive of an asymptomatic condition, not meeting the criteria for a compensable rating under any relevant diagnostic code. There was no indication in the June 2006 VA examination report of any significant abnormality associated with the residuals of fracture of the left distal fibula and tibia. The report showed no evidence of abnormal bone or joint, no limitation of motion of the knee or ankle, no shortening of bones of the lower extremity, nor other condition warranting a compensable evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263, 5270-5275. A compensable evaluation for residuals of a fracture to the left fibula prior to January 11, 2011, is not warranted. From January 11, 2011 The evidence contained in the January 11, 2011 VA examination reflects that the Veteran's residuals of fracture of the left distal fibula and tibia are manifested by constant pain and restricted joint motion of the ankle. He had left dorsiflexion from zero to 10 degrees and left plantar flexion from zero to 22 degrees, which are both about one-half the normal range of motion of the ankle. See 38 C.F.R. § 4.7a, Plate II (2012). On that basis, the Board finds that the limitation of motion of the affected ankle to be marked, warranting a 20 percent disability rating for the service-connected residuals of fracture of the left distal fibula and tibia. This is the maximum rating assignable under that code. See 38 C.F.R. § 4.7a, Diagnostic Code 5271. Nor does the evidence show that a higher rating is warranted under any other pertinent diagnostic code criteria. There is no evidence of any associated knee disability or of ankylosis of the ankle; and though the evidence shows marked limitation of motion of the left ankle, there is no evidence of malunion of the tibia and fibula with marked knee or ankle disability overall. See 38 C.F.R. § 4.7a, Diagnostic Codes 5256-5262, 5270. A 20 percent rating and no more is warranted for residuals of fracture of the left distal fibula and tibia for the period from January 11, 2011. The preponderance of the evidence is against the claim for an initial disability rating in excess of 20 percent from January 11, 2011 for residuals of fracture of the left distal fibula and tibia; there is no reasonable doubt to be resolved; and a rating higher than 20 percent is not warranted. C. Conclusions An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his degenerative joint disease of the lumbar spine, or his residuals of fracture of the left distal fibula and tibia. The rating criteria are adequate to evaluate these disabilities, and referral for consideration of extraschedular rating is not warranted. ORDER Entitlement to service connection for a lung disorder to include lung scarring or bronchitis, claimed as due to exposure to mustard gas, is denied. Entitlement to an initial disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine, is denied. Entitlement to an initial compensable disability rating prior to January 11, 2011 for residuals of fracture of the left distal fibula and tibia, is denied. Entitlement to an initial 20 percent disability rating from January 11, 2011 for residuals of fracture of the left distal fibula and tibia, is granted. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs