Citation Nr: 0007214 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 93-17 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for a low back strain, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of a shell fragment wound to the right leg, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from December 1948 to May 1952. This appeal arises before the Board of Veterans' Appeals (Board) from a February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the veteran's claim seeking entitlement to a compensable rating for a low back strain and for an increased rating from 10 percent disabling for a shell fragment wound in the right leg. In an October 1992 rating decision, the RO granted the veteran an increased rating for his low back strain to 10 percent disabling, and in a March 1993 hearing officer decision, the RO granted the veteran an increased rating for his low back strain to 20 percent disabling. The veteran's claim was before the Board in August 1994 and December 1997, at which times it was remanded for additional development. By a January 2000 rating decision, the RO granted the veteran entitlement to a temporary total evaluation based on his surgery for his back which required convalescence for the period from December 16, 1993, to February 1, 1994. Although the claim of entitlement to a total disability rating based on individual unemployability (TDIU) was before the RO in April 1996 and June 1997, it is noted that the veteran did not file a notice of disagreement (NOD) within one year of such determinations pursuant to 38 C.F.R. § 20.201. Accordingly, the veteran's claim of a TDIU is not in appellate status. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. For the period prior to December 16, 1993, the veteran's service-connected residuals of a low back strain produced impairment which approximated that for pronounced intervertebral disc syndrome. 3. For the period beginning February 1, 1994, the veteran's service-connected back disability is manifested by subjective complaints of pain with flare-ups as well as pain on motion and limitation of motion shown on examination. Overall, these findings are the equivalent of severe limitation of motion. 4. For the period beginning February 1, 1994, the veteran's disability is not comparable to pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with neurological findings appropriate to the site of the diseased disc. 5. The veteran's shrapnel wound to the right leg causes no more than moderate disability to Muscle Group XI. CONCLUSIONS OF LAW 1. For the period prior to December 16, 1993, the criteria for an evaluation of 60 percent for the veteran's service- connected residuals of a low back strain have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). 2. For the period beginning February 1, 1994, the schedular criteria for a 40 percent evaluation for the veteran's service connected low back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.7, 4.40, 4,45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 (1999). 3. The criteria for an increased rating for the veteran's residuals of a shrapnel wound to the right leg from 10 percent disabling have not been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.55, 4.56, 4.72, 4.73, Diagnostic Code 5311 (old diagnostic criteria in effect prior to July 3, 1997); Diagnostic Code 5311 (new diagnostic criteria in effect as of July 3, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background Service medical records show that the veteran was seen in June 1951 after incurring a penetrating shell fragment wound from a missile in the right lower leg. There was no major artery or nerve involvement. The veteran had a metallic foreign body removed. By a rating decision of September 1952, the veteran was granted entitlement to service connection and assigned a 10 percent rating for a low back strain. He was also granted entitlement to service connection for residuals of a shell fragment wound to the right lower leg, which was evaluated as nondisabling. By a rating decision of May 1953, the veteran's rating for residuals of a low back strain was reduced to a noncompensable rating and his rating for residuals of a shell wound to the right leg was increased to 10 percent disabling. Copies of treatment records were submitted from Dr. J. B. from 1978 to 1993, showing that the veteran received treatment for his low back. The veteran underwent a VA examination in May 1992. Examination showed that the veteran walked with a limp. He could walk on his heels with facility, but could not accomplish a deep knee bend, and could not walk on his toes. He stood in moderate standing broad jump position without a list, but with bilateral genu varum deformity. Range of motion of the trunk was flexion of 70 degrees, extension of 0 degrees, lateral bends to the left and right of 15 degrees each, and rotation to the right and left of 20 degrees each. Sciatic notch tenderness and extensor hallucis longus weakness were not elicited. Straight leg raising was negative bilaterally as was the neurological examination. The right leg exhibited a white, healed, asymptomatic shrapnel wound on its lateral aspect and its middle one third. There was no appreciable loss of subcutaneous or muscle tissue. X-rays of the right leg revealed no bone or joint abnormality. X-ray of the lumbar spine revealed a loss of its normal lumbar lordosis, mild degenerative changes noted in the lower lumbar region with narrowing at L3-4, L4- 5, and L5-S1 disc spaces. Diagnoses were discogenic disease by x-ray with spondylolisthesis of L4 on L5 by x-ray, and shrapnel wound to the right leg healed without retained foreign body (shrapnel surgically removed). Dr. H. N. submitted a medical report dated October 1992, which was prepared for the Social Security Administration (SSA). It was noted that the veteran had extremely limited range of motion of the lumbosacral spine. It was noted that the veteran's legs went numb and he could not bend. It was noted that because of pain, the veteran had a great deal of weakness and could not tolerate any kind of stress. A final diagnosis was that the veteran had permanent residuals of traumatic injuries of the entire spine with evidence of severe advanced myofascitis, severe advanced degenerative arthritic changes, as well as evidence of entrapment syndrome with lumbar disc degeneration and with sciatica and radiculopathy and with central spinal stenosis. It was opined that the veteran was totally disabled from an orthopedic/neurological condition. Dr. J. B. submitted an examination report regarding the veteran's Government life insurance dated December 1992, wherein he wrote that the veteran's symptoms first appeared in the 1980s. Objective symptoms were described as numbness, primarily when standing but less so when sitting. He wrote that the insured became unable to work approximately around April 1990. The VA wrote the veteran a letter dated December 1992, wherein they stated that they had approved the veteran's waiver of premiums on his life insurance policies. The VA determined that the veteran had been totally disabled since July 1, 1990 for purposes of waiving the life insurance premiums. The VA wrote the veteran a letter dated January 1993, wherein they indicated that they had to deny the veteran's claim for monthly disability income benefits on his government life insurance. By decision dated January 1993, the Social Security Administration (SSA) determined that the veteran was disabled. Primary diagnosis was entrapment syndrome and lumbar syndrome; secondary diagnosis was severe advanced degenerative arthritic changes. The veteran was afforded a hearing before the RO in March 1993, a transcript of which has been associated with the claims folder. The veteran described taking pain medication for his back. The veteran noted that five slipped discs were noted in 1987. He testified that he wore a back brace about 4 hours per day. He stated that he used to be a carpenter which required a lot of standing, but now was only able to stand for about 5 minutes. He stated that his pain was constant, mostly when he was standing. He also described pain in both legs. Regarding the veteran's right leg where the shell fragment was, the veteran described only a light ache once in a while, mostly with the weather. He stated that he had numbness in the right leg, but was not sure if it was from the shell wound or the back. He stated that the favoring of his right leg had been a recent phenomenon. He described residual scarring in the leg; he stated that he had an indentation, that was not that tender, but that every once in a while he knew it was there. He stated that if he were to wear a full- length calf stocking, his leg would bother him. A copy of an MRI report was submitted from the Imaging Center from November 1993. The examiner's impression was Grade I spondylolisthesis of L4-5 due to advanced degenerative arthropathy of the facet joints, and degenerative discs at L3-4 and L5-S1. Copies of treatment records were submitted from the Hackensack Medical Center from November and December 1993. They show that the veteran underwent an operation on December 16, 1993, for his low back. Specifically, he underwent a bilateral decompression laminectomy at L4-5, foraminotomies at L4-5, and fusion of lumbar instability using pedicle fixation at L4-5 with steffi plating. Postoperative diagnosis was lumbar instability at L4-5, spinal stenosis, segmental at the L4-5 level, and spondylolisthesis present, Grade I, at L4-5. Copies of treatment records were submitted from Dr. R. V. from November 1993 to June 1994. In November 1993, the examiner noted that the veteran had absent ankle jerks. Sensory examination showed a decrease to light touch and pin prick in the L4, L5, and S1 distributions. The examiner commented that the veteran had classical signs and symptoms of neurogenic claudication due to spinal stenosis. When the veteran was seen in January 1994, the examiner commented that while the sensory function was diminished to pin prick in the S1 distribution, it was definitely improved since his pre- operative condition. The records show that the veteran received post-operative treatment for his December 1993 operation. Copies of treatment records were submitted from Dr. B. N. from 1993 to 1995, showing that the veteran received continued outpatient treatment for his low back. In August 1994, it was noted that the veteran had good range of motion, and some mild back pain. In December 1994, it was noted that the veteran's back was doing reasonably well. The veteran noted some pain, when he tried to work, usually when he tried to do too much. In November 1995, it was noted that the veteran was neurologically intact. Dr. J. W. submitted a letter dated September 1994, where he wrote that he had examined the veteran in December 1993 for pre-admission testing prior to surgery for spinal stenosis, but that he had not seen the veteran since. Dr. P. B. wrote a letter dated October 1994, where he wrote that he had treated the veteran from February to June 1993. The veteran was afforded a VA examination for miscellaneous neurological disorders in October 1995. The veteran indicated that in 1993 due to numbness in both legs, especially the left foot, he underwent surgery to the lumbar spine. He described lumbar pain as well as numbness in the third, fourth, and fifth toes on the left foot. Examination showed that the veteran had moderate limitation of lumbar spine movement, and was status post surgery in that area. The veteran had absent ankle jerks bilaterally and also had a diminution of sensation in the distribution of S1 on the left. Relevant diagnosis was status-post surgery to the lumbar spine with resultant bilateral S1 radiculopathy, left more than right. The veteran was afforded a VA examination for his muscles in December 1995. He described "weakness and pain" in his lower back, as well as an inability to stand continuously for more than five minutes. He also described a numbness involving both legs below the knees. He indicated that an inability to raise his upper extremities caused him to retire from work. He indicated that his lumbar spine surgery in 1993 made his lower back pain tolerable, but that he still had numbness. Examination showed that the veteran walked normally, but was supported by a cane, which he held in his right hand. The veteran stated that he was unable to heel or toe walk, but his shoe wear appeared to be of a normal pattern. Thigh and calf atrophy was noted, but muscular strength showed no deficiencies. Sensation and reflexes in the lower extremities appeared normal bilaterally. Straight leg raising test was negative bilaterally in both supine and seated positions. Range of motion testing of the hips, knees, and ankle was normal. Examination of the lower back revealed a 9 inch healed non-tender vertical scar centered on the mid-lumbar area. No spasm, erythema, increased heat, or swelling was noted. Range of motion was limited, particularly with rotation to both sides at 75 percent of normal and with flexion at 75 percent of normal. Hyperextension and lateral bending appeared normal and spontaneous. Spontaneous apparently pain-free flexion to 90 degrees was observed. In January 1996, the RO returned the veteran's claim folder to the examiners who examined the veteran in October and December 1995 for a more complete examination because the examinations did not comply with the directives in the August 1994 Board remand. The veteran was afforded another VA examination in February 1996. This examination specifically tested for range of motion. Range of motion of testing of the veteran's back showed that flexion was to 90 degrees, extension was to 180 degrees, with hyperextension to 185 degrees, lateral bending both to the right and left was to 25 degrees, and rotation both to the right and left was to 30 degrees. Regarding the veteran's right knee, flexion was to 110 degrees and extension was to 180 degrees. Regarding the veteran's right foot and ankle, plantar flexion and dorsiflexion were 30 degrees. Inversion and eversion were both 20 degrees. The examiner opined that it was impossible to distinguish between the veteran's service-connected lumbosacral injury and any supervening degenerative process which may have occurred during the past 20 years. The veteran was also afforded another VA neurological examination in February 1996 pursuant to the RO's request. Much of the examination findings seemed to be identical to the findings in the October 1995 neurological examination. A 1987 CT scan was noted that showed degenerative disc disease of multiple areas of the spine from L4 to S1. A 1993 MRI was noted that showed an impression of Grade I spondylolisthesis of L4-L5 due to advanced degenerative arthritis of the facet joint. Regarding the directives in the remand, the examiner indicated that there was mild muscle spasm in the lumbar and cervical spine area. The examiner further indicated that the functional impairment that the veteran had in walking was most likely due to multiple joint pain and the residual impairment of a lumbar spine lesion, mainly the lumbar spondylosis. The examiner specified that the spondylosis was most likely the result of wear and tear over so many of years of using the spine and was unlikely related to his previous injury. The examiner further specified that the spondylolisthesis of L4 and L5 was most likely the result of the spondylosis. Regarding the CAT scan findings and the MRI finding, the examiner indicated that they were due to spondylosis, described as a degenerative disease of the nervous system of the spine. The examiner also indicated that the veteran had sciatic impairment, or bilateral radiculopathy in the lumbar spine. In a letter dated July 1996, Dr. R.V. indicated that he had recently seen the veteran. He agreed with a VA examiner's report that opined that it was not easy to distinguish between the veteran's service-connected disability and the degenerative supervening process over the last twenty years. He indicated , however, that any traumatic injury would accentuate a supervening degenerative change and could not be assumed to be unrelated. The examiner indicated that even though the veteran had fusion surgery which reduced the degree of pain he was having, the veteran still had a significant amount of discomfort that prevented him from functioning at work. He stressed that the degree of pain that the veteran was experiencing should be considered. A copy of a letter was sent from the Trubilt Home Products Inc. dated October 1998. They noted that since 1991, they had repeatedly tried to hire the veteran as a subcontractor on various projects, but he had been unable to perform his job because of physical difficulties. The veteran underwent an x-ray of the lumbar spine by the VA in November 1998. The x-ray report noted an impression of status post posterior fusion and instrumentation of L4-5; approximately 8 mm. of anterolisthesis of L4 with respect to L3; follow-up flexion-extension radiographs were recommended to further assess stability of the fusion mass; multi-level degenerative disc disease; and calcification of the abdominal sorts with evidence of aneurysmal dilatation. The veteran underwent a VA examination in November 1998. The veteran noted that after leaving service, he had intermittent low back pain which was helped with chiropractic manipulations. The veteran stated that his low back pain became worse and worse to the point that he stopped working in 1990. It was noted that he was working in home renovations doing kitchens, roofing, masonry, and carpentry. It was noted that in 1993 the veteran had an MRI which showed spondylolisthesis, which was surgically corrected in 1993 by placing a plate and screwing the vertebrae into place. It was noted that this significantly helped decrease his low back pain, and that he still had back pain. The veteran stated that he felt unsteady on his feet. Examination in the right lower leg showed a circular 1 x 1 cm. round scar in the right lateral aspect of his leg 6 and a half inches above the malleolus. There was no muscle loss, and no tenderness. The veteran had full strength in both flexion and extension of his ankle. Regarding the back, the veteran had a L shaped surgical scar in his low back. There was no vertebra body, disc space, SI joint, or sacral tenderness. There was no paravertebral muscle tenderness or spasm. He had diminished patellar Achilles' deep tendon reflexes. He could flex 72 degrees, and extend 9 degrees. Right bend was 15 degrees, and left bend was 17 degrees. Bilateral rotation was 10 degrees without pain. Extending his back, the veteran's strength seemed weak, and about 25 percent of expected; flexing was about 60 percent expected for his low back and strength. Diagnoses were status post shrapnel wound to the right lower leg without sequelae; and status post low back pain in service. The examiner commented that the veteran was found to have spondylolisthesis with surgical correction in 1993 which the examiner was uncertain if it was related. The examiner prepared an addendum after reviewing the veteran's claims file. The examiner commented that a review of the chart eliminated the possibility that the veteran's spondylolisthesis came from service. The examiner commented that the veteran did not have spondylolisthesis upon leaving service, and thus most of his low back pain could not be connected to his time in service. The veteran underwent a VA examination in February 1999. Regarding the shell fragment wound in the right leg, the examiner commented that the entrance wound was small and round, and could have only involved muscle group. The examiner commented that there was no loss of deep fasciae, muscle substance or normal firm resistance on palpation. The examiner commented that there was no limitation of motion of the leg. The examiner commented that there was no loss of power or incoordination. Regarding weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability, the examiner commented that the veteran had not noticed the wound limiting him. Regarding whether pain could limit functional ability during flare-ups, the examiner commented that the veteran did not have pain from his wound. Regarding the veteran's low back, the examiner commented that standard flexion was to 90 degrees, and extension to 20 degrees, and that the veteran's limitation of motion was moderate. The examiner commented that the veteran did not list his whole spine to the opposite side. The examiner commented that there was no sign of sciatic neuropathy. The examiner commented that the veteran had 25 % weakness and 40 % decrease in range of motion. Regarding an opinion as to whether pain could significantly limit functional ability during flare-ups, the examiner commented that of course when the veteran had pain it would limit him. Regarding ankylosis, the examiner commented that the veteran had a surgical ankylosis of his back as the lumbar vertebrae were screwed to a steel plate preventing flexion or extension at that level. Analysis Increased rating for a low back strain, from 20 percent disabling. The veteran's claim for increased compensation is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Court has also stated that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). The Court has held that VA must consider the applicability of regulations relating to pain. Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1993); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that codes that provide a rating solely on the basis of loss of range of motion must consider 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, weakened movement, excess fatigability, or incoordination). Therefore, to the extent possible, the degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination should be noted. Based on these decisions, in a December 1997 opinion, the General Counsel of the VA concluded that Diagnostic Code 5293 for intervertebral disc syndrome involves loss of range of motion, therefore, 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this Diagnostic Code if the veteran has received less than the maximum evaluation under that Code. VAOPGCPREC 36-97, (December 12, 1997). Lumbosacral strain with muscle spasm on extreme forward bending or loss of lateral spine motion is assigned a 20 percent disability rating. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion is assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Favorable ankylosis is assigned a 40 percent disability rating. Unfavorable ankylosis is assigned a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5289. Slight limitation of motion of the lumbar spine is assigned a 10 percent disability rating; moderate limitation of motion of the lumbar spine is assigned a 20 percent disability rating; and severe limitation of motion of the lumbar spine is assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292. When intervertebral disc syndrome is moderate with recurring attacks, a 20 percent disability rating is assigned. When intervertebral disc syndrome is severe with recurring attacks, with only intermittent relief, a 40 percent disability rating is assigned. When intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief, a 60 percent disability rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5293. As noted in the introduction, the RO granted the veteran a temporary total evaluation pursuant to 38 C.F.R. § 4.30 for the period from December 16, 1993, to January 31, 1994, after the veteran underwent surgery on his lumbar spine. Accordingly, consideration of the veteran's claim for an increased rating will be divided into two different analyses. First, consideration will be made regarding whether the veteran is entitled to an increased rating for his residuals of a low back strain from 20 percent disabling for the period prior to December 16, 1993; second, consideration will be made regarding whether the veteran is entitled to an increased rating for his residuals of a low back strain from 20 percent disabling for the period beginning February 1, 1994. Since the RO granted a temporary total evaluation for the operation that the veteran underwent on December 16, 1993, it is noted that the RO implicitly granted service connection for the various back disorders for which the veteran underwent surgery. Since the veteran's operation included a decompression laminectomy at L4-5, foraminotomies at L4-5, and fusion of lumbar instability using pedicle fixation at L4-5 with steffi plating, it is determined that consideration of the veteran's service-connected low back disability under diagnostic code 5293 for intervertebral disc syndrome is appropriate. For the period prior to December 16, 1993, based on the criteria under Diagnostic Code 5293, the veteran's low back disability more nearly approximates the criteria for a 60 percent evaluation. The evidence shows that the veteran had sciatic neuropathy. In October 1992, Dr. H. N. stated that the veteran had entrapment syndrome with lumbar disc degeneration and sciatica and radiculopathy and opined that the veteran was totally disabled from an orthopedic/neurological condition. At his hearing in March 1993, the veteran described constant pain in his back. When the veteran was seen in November 1993 by Dr. R. V., the examiner commented that the veteran had classical signs and symptoms of neurogenic claudication due to spinal stenosis. These findings are enough to demonstrate that for the period prior to December 16, 1993, the veteran had persistent symptoms of intervertebral disc syndrome compatible with sciatic neuropathy. Under Diagnostic Code 5293, in order to obtain a 60 percent rating, it is also required to have demonstrable muscle spasm, absent ankle jerk, or other neurological findings. It is noted that when the veteran was seen by Dr. R. V. in November 1993, he had absent ankle jerks. Based on the foregoing evidence which includes symptoms of back pain, lumbar radiculopathy, and absent ankle jerks, the criteria for pronounced intervertebral disc syndrome has been satisfied for the period prior to December 16, 1993. Consequently, the veteran is entitled to an increased evaluation to 60 percent for the period prior to December 16, 1993. Since 60 percent is the maximum allowable evaluation under Diagnostic Code 5293 for intervertebral disc syndrome and there is no evidence that the veteran's back disability involves a vertebrae fracture (Diagnostic Code 5285) or ankylosis (Diagnostic Code 5286), a higher rating than 60 percent evaluation is not warranted for the period prior to December 16, 1993. The veteran's operation of December 1993 changed the character of his back disability. Therefore, the rating assigned for the period after his convalescence must be assessed by taking into account the results of the operation. The veteran's convalescence ended March 31, 1994. For the period beginning February 1, 1994, the record reflects that the veteran has had fairly consistent complaints of low back pain. At the veteran's most recent VA examination in February 1999, the examiner commented that the veteran had moderate limitation of motion of the low back. At a VA examination in November 1998, the examiner commented that the veteran's strength in extending his back seemed about 25 percent of expected, and flexing was about 60 percent of expected for the low back. At a VA examination in December 1995, rotation and flexion were 75 percent of normal. At the February 1999 VA examination, the examiner commented that when the veteran had pain during flare-ups, his functional ability would be limited. Considering the findings above and the veteran's functional limitation of his lower back due to pain on use as directed in DeLuca v. Brown, it is determined that for the period beginning February 1, 1994, the manifestations of the veteran's disability more closely approximate the criteria for a 40 percent rating for severe limitation of motion of the low back under Diagnostic Code 5292, than the criteria for a 20 percent rating for moderate limitation of motion. Therefore, the 40 percent rating must be applied. 38 C.F.R. § 4.7. The veteran is not entitled to a higher rating than 40 percent for limitation of motion of the lumbar spine under Diagnostic Code 5292 or for lumbosacral strain under Diagnostic Code 5295, as there are no higher evaluations than 40 percent for limitation of motion or for lumbosacral strain. Also, the evidence does not show that the veteran has unfavorable ankylosis of the lumbar spine to warrant a 50 percent rating under Diagnostic Code 5289. Also, the objective findings do not demonstrate intervertebral disc syndrome of a pronounced degree to warrant a 60 percent rating under Diagnostic Code 5293 for the period beginning February 1, 1994. It is noted that the veteran has had less pain in his back after the December 16, 1993, operation than he did before the operation. At his November 1998 VA examination, the veteran stated that the operation significantly helped decrease his low back pain. Similarly, Dr. R. V. wrote in July 1996 that the veteran's fusion surgery reduced the degree of pain that the veteran was having, and at the veteran's December 1995 VA examination, the veteran stated that the lumbar spine surgery in 1993 made his lower back pain tolerable. The evidence shows that the veteran has had neurological findings in his lower back for the period beginning February 1, 1994. At his VA examination in October 1995, the veteran had absent ankle jerks, and a diminution of sensation in the distribution of S1 on the left. Diagnosis was status-post surgery to the lumbar spine with resultant bilateral S1 radiculopathy. At the veteran's February 1996 VA examination, there was mild muscle spasm. However, there is also negative evidence regarding neurological findings in the lower back. At the veteran's December 1995 VA examination, no spasm was noted, sensation and reflexes in the lower extremities appeared normal, and the straight leg raising test was negative. At the veteran's November 1998 VA examination, there was no paravertebral muscle tenderness or spasm, and at the veteran's February 1999 VA examination, the examiner commented that there was no sign of sciatic neuropathy. In summary, for the period beginning February 1, 1994, the competent evidence of record does not reflect persistent findings compatible with sciatic neuropathy, absent ankle jerk, or other neurological findings reflective of pronounced intervertebral disc syndrome. In a recent opinion, the VA Office of General Counsel held that Diagnostic Code 5293 involved loss of range of motion and that pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. § 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code. See VAOPGCPREC 36-97 (December 12, 1997). However, the veteran's disability with pain on motion, even with flare-ups, is not such that it would be the equivalent of persistent findings compatible with sciatic neuropathy, absent ankle jerk, or other neurological findings reflective of pronounced intervertebral disc syndrome, such that it would warrant a 60 percent rating for intervertebral disc syndrome for the period beginning February 1, 1994. It is noted that the veteran's pain on motion of his lower back has already been considered in granting his increased rating to 40 percent for severe limitation of motion, and that his pain in the lower back decreased after his operation on February 16, 1993. This case does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). There have been no frequent periods of hospitalization for this condition, and the totality of the evidence does not show marked interference with employment due solely to the low back disability beyond the industrial impairment acknowledged by the schedular rating. Therefore, an evaluation in excess of 60 percent for the period prior to December 16, 1993 in not in order. Similarly, an evaluation in excess of 40 percent for the period beginning February 1, 1994 is not in order. In reaching the determination, consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Specifically, the RO ordered special VA orthopedic examinations to determine the severity of the veteran's low back disability. The record is complete with records of prior medical history and rating decisions. Therefore, the RO and the Board have considered all the provisions of Parts 3 and 4 that would reasonably apply in this case. Increased rating for a shell fragment wound to the right leg, from 10 percent disabling. The veteran's claim for an increased rating for residuals of a shell fragment wound to the right leg from 10 percent disabling is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Court has also stated that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). The veteran's shell fragment wound to the right leg is rated under 38 C.F.R. § 4.73, Diagnostic Code 5311 for muscle injuries, evaluated as 10 percent disabling. By regulatory amendment effective June 3, 1997, changes were made to the schedular criteria for evaluating muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72. See 62 Fed. Reg. 30237-240 (1997). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The RO has considered the veteran's claim for a higher rating pursuant to both the old and the new criteria. The Board will also consider the veteran's claim for a higher rating under all applicable criteria pursuant to Karnas. In regard to the increased rating issue now on appeal, the new regulatory criteria did not in any significant way change the prior regulatory criteria. Nonetheless, both the old and the new versions of the applicable regulations will be described. 38 C.F.R. § 4.56 sets forth certain factors for consideration in the rating of muscle injuries, particularly as they relate to residuals of gunshot and shell fragment wounds. Under the old version, 38 C.F.R. § 4.56 provided that a moderate disability of muscles was a through and through or deep penetrating wounds of relatively short track by single bullet or small shell or shrapnel fragment. Absence of the explosive effect of a high velocity missile, and of residuals of debridement or of prolonged infection. The service medical records would show a record of hospitalization in service for treatment of the wound. In addition, there would be records following service of consistent complaints of one or more of the cardinal symptoms of muscle wounds particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by the injured muscles. Objectively, the medical evidence would show a moderate injury to a muscle group manifested by entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through tissue; signs of moderate loss of deep fasciae or muscle substance or impairment of muscle tonus, and definite weakness on comparative tests. 38 C.F.R. § 4.56 (b). A moderately severe disability of muscles was a through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. The service medical records would show a record of hospitalization for a prolonged period in service for treatment of the wound of severe grade. In addition, there would be records following service of consistent complaints of cardinal symptoms of muscle wounds. There might also be evidence of unemployability because of an inability to keep up with the work requirements. Objectively, the medical evidence would show a moderately severe injury to a muscle group manifested by entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. Further, there are indications on palpation of moderate loss of deep muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side. Tests of strength and endurance of muscle groups involved give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56 (c). A severe disability of muscles was a through and through or deep penetrating wound due to a high velocity missile or large or multiple low velocity missiles, or the explosive effect of high velocity missile, or to a shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding, and cicatrization. The service medical records would show a record of hospitalization for a prolonged period in service for treatment of the wound of severe grade. In addition, there would be records following service of consistent complaints of cardinal symptoms of muscle wounds. There might also be evidence of unemployability because of an inability to keep up with the work requirements. Objectively, the medical evidence would show a severe injury to a muscle group manifested by extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups by the track of the missile. X-rays might show minute, multiple, scattered foreign bodies, indicating the spread of intermuscular trauma and the explosive effects of the missile. Palpation would reveal moderate or extensive loss of deep fasciae or muscle substance, with soft or flabby muscles in the wound area. Tests of strength, endurance compared with the sound side, or coordinated movements would show positive evidence of severe impairment of function. Reaction of degeneration would not be present in electrical tests, but a diminished excitability to faradic current, compared with the sound side, may be present. Visible or measured atrophy may be present, with adaptive contractions or the opposing groups of muscles, if present, indicating severity. Adhesion of the scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebra, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates the severe type of muscle damage. Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds to the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis), may be included in the severe group if there is sufficient evidence of severe disability. 38 C.F.R. § 4.56 (d). The new version of 38 C.F.R. § 4.56 is otherwise basically the same as the old version. Additionally, the current provisions of 38 C.F.R. § 4.56 (a) and (b) were formerly contained in 38 C.F.R. § 4.72, effective prior to June 3, 1997. However, for the sake of clarity and in order to show that both versions have been fully considered by the Board, the Board will set forth the new version. Under the new version of the rating criteria, 38 C.F.R. § 4.56 provides that: (a) an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; (b) a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; (c) for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement; and under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d) (2) describes moderate disability of muscles: (i) Type of injury: through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection; (ii) History and complaint: service department record or other evidence of in-service treatment for the wound; record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles; (iii) Objective findings: entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(3) describes moderately severe disability of muscles: (i) Type of injury: through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; (ii) History and complaint: service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements; (iii) Objective findings: entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(4) describes severe disability of muscles: (i) Type of injury: through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring; (ii) History and complaint: service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements; (iii) Objective findings: ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) Visible or measurable atrophy; (E) Adaptive contraction of an opposing group of muscles; (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. As noted above, the veteran's shell fragment wound to the right leg is rated 10 percent disabling under Diagnostic Code 5311. Diagnostic Code 5311 addresses impairment of Muscle Group XI, i.e., the posterior and lateral crural muscles, and muscles of the calf. The Code provides that the function of the muscles in Muscle Group XI is propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. Diagnostic Code 5311, reveals no changes in the ratings granted for the levels of severity. Prior to and on and after July 3, 1997, injury to Muscle Group XI was rated as 10 percent when moderate; 20 percent when moderately severe; and 30 percent when severe. In this case the question before the Board is whether or not the veteran has a moderately severe muscle injury in order to award a higher rating. 38 C.F.R. § 4.73, Diagnostic Code 5311. As will be discussed below, the veteran is not entitled to an increased rating from 10 percent for his residuals of a shrapnel wound to the right leg involving Muscle Group XI. At the veteran's November 1998 VA examination for his spine, the examiner commented that the veteran had a circular 1 x 1 cm. round scar in the right lateral aspect of the leg located 6 and a half inches above the malleolus. There was no muscle loss and no tenderness. The examiner's diagnosis was status post shrapnel wound to the right lower leg without sequelae. At the veteran's February 1999 VA examination, the examiner commented that there was no loss of deep fasciae, or muscle substance. There was normal firm resistance. The examiner commented that there was no limitation of motion of the leg, and no loss of power or incoordination. The examiner specifically stated that the veteran did not have pain from his wound. Thus, the objective findings discussed in 38 C.F.R. § 4.56 (d) (3) of the new criteria and 38 C.F.R. § 4.56 (c) of the old criteria necessary to show a moderately severe disability of muscles have not been demonstrated in this instance. Also, the evidence does not show that the veteran suffered a through and through shrapnel wound to the lower right leg, affecting two muscle groups in the same anatomical region, so that if the damage to one of the muscle groups was rated as moderate, that the overall muscle damage could be labeled as moderately severe as instructed in 38 C.F.R. § 4.55 (a) and § 4.72 of the old criteria and 38 C.F.R. § 4.55 (e) of the new criteria. Also, the original inservice injury did not involve a shattering bone or comminuted fracture or other consequences indicative of a severe muscle injury. See 38 C.F.R. § 4.56. In Deluca v. Brown, 8 Vet. App. 202, 206-7 (1995), the Court held that 38 C.F.R. § 4.40 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use. At his hearing in March 1993, the veteran described a "light ache" once in a while where the shell fragment had been. However, pain is encompassed by the relevant rating criteria shown in the requirements for moderate disabilities under 38 C.F.R. § 4.56. Furthermore, the VA examiner at the February 1999 examination commented that the veteran did not have pain from his wound. Therefore, the veteran is not entitled to a higher rating based on pain on use. The veteran is not entitled to separate 10 percent ratings per the directives of Esteban v. Brown, 6 Vet. App. 259 (1994), in that the evidence does not show his scar on his lower right leg is poorly nourished with repeated ulceration and/or is tender and painful on objective demonstration. Nor has the veteran asserted that such scar is tender and painful or has shown repeated ulceration. Taking into account the nature of the inservice injury and the present residual disability, the current 10 percent evaluation is appropriate. The veteran's residuals are not moderately severe; therefore, a 20 percent evaluation is not for assignment. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5311. Pursuant to Karnas v. Derwinski, 1 Vet.App. 308 (1991), the veteran's disability was considered both under the schedular criteria prior to and after their amendment in July 1997, and the result is the same under both standards. In reaching the determination, consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Specifically, the RO ordered special VA examinations to determine whether the veteran's shrapnel wound to the right leg had increased in severity enough to warrant an increased rating. The record is complete with records of prior medical history and rating decisions. Therefore, all the provisions of Parts 3 and 4 that would reasonably apply in this case have been considered. ORDER For the period prior to December 16, 1993, an increased rating for the veteran's residuals of a low back strain to 60 percent is granted. For the period beginning February 1, 1994, an increased rating for the veteran's residuals of a low back strain to 40 percent is granted. An evaluation in excess of 10 percent for residuals of a shell fragment wound to the right leg in muscle group XI, is denied. G. H. SHUFELT Member, Board of Veterans' Appeals