Citation Nr: 0843253	
Decision Date: 12/16/08    Archive Date: 12/23/08

DOCKET NO.  06-13 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for 
chronic pain syndrome due to intercostal nerve damage, left.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant & Wife


ATTORNEY FOR THE BOARD

B.W. Hennings, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1970 to June 
1976 and from December 1976 to June 1992.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from rating decisions by the Department of Veterans 
Affairs (VA) Regional Office (RO) in Seattle, Washington.  

The veteran presented testimony at a Travel Board Hearing 
chaired by the undersigned Veterans Law Judge in May 2008.  A 
transcript of this hearing is associated with the veteran's 
claims folder.


FINDING OF FACT

The evidence shows that the veteran's chronic pain syndrome 
due to intercostal nerve damage, left is manifested by 
tenderness and sensitivity along his intercostal nerve 
supplying left ribs 8-9, constant pain and additional 
functional impairment as evidenced by pain on motion as well 
as weakened movement, excess fatigability and incoordination 
after even the least strenuous repetitive motion exercise.


CONCLUSION OF LAW

The criteria for an initial rating of 20 percent for chronic 
pain syndrome due to intercostal nerve damage, left have been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 
4.3, 4.7, 4.10, 4.40, 4.45, 4.59, Diagnostic Codes 8210, 
8211(2008).




REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 38 
C.F.R. Part 4 (2008).  The percentage ratings contained in 
the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 
(2008).

Each disability must be considered from the point of view of 
the veteran working or seeking work.  38 C.F.R. § 4.2.  Where 
there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.

Where, as here, entitlement to service-connection has been 
established, but a higher initial disability rating is at 
issue, the extent of impairment throughout the entire period, 
beginning with the filing of the claim, must be considered 
and a determination must be made regarding whether "staged" 
ratings are warranted.  See Fenderson v. West, 12 Vet. App. 
119, 126-127 (1999) (when a disability rating is initially 
assigned, separate ratings should be considered for separate 
periods of time, known as staged ratings).  Since the veteran 
is being granted an increased rating back to the date of 
service connection, staged ratings are inappropriate here.

Under Diagnostic Code (DC) 8210, a 10 percent rating is 
warranted when there is evidence of moderate incomplete 
paralysis of the tenth cranial nerve.  The severity of 
impairment is dependent upon the extent of sensory and motor 
loss to organs of voice, respiration, pharynx, stomach and 
heart.  In order to receive a rating of 30 percent under DC 
8210, the evidence must show that manifestations of the 10th 
cranial nerve disability more closely approximate severe 
incomplete paralysis of the tenth cranial nerve.  In order to 
receive a rating of 50 percent under DC 8210, the evidence 
must show that complete paralysis of the 10th cranial nerve.

The veteran's chronic pain syndrome due to intercostal nerve 
damage, left has been most recently evaluated under DC 8211, 
which governs rating of paralysis of the eleventh cranial 
nerve.  Under DC 8211, a 10 percent evaluation is assigned 
for moderate incomplete paralysis of this nerve.  A 20 
percent evaluation is assigned for severe incomplete 
paralysis of this nerve.  A 30 percent evaluation is assigned 
for complete paralysis of this nerve.  38 C.F.R. § 4.124a, DC 
8211.  Ratings are dependent upon loss of motor function of 
sternomastoid and trapezius muscles.  38 C.F.R. § 4.124a, DC 
8211, Note.

The Board notes that, when evaluating musculoskeletal 
disabilities, VA may, in addition to applying schedular 
criteria, consider granting a higher rating based on 
functional loss due to limited or excess movement, pain, 
weakness, excess fatigability, or incoordination, to include 
during flare-ups and with repeated use, when those factors 
are not contemplated in the relevant rating criteria.  See 
38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 
202, 204-7 (1995).

History and Analysis

A June 2005 rating decision granted the veteran service 
connection and assigned an initial rating of 10 percent, 
effective from March 9, 2004.  The veteran seeks a rating in 
excess of 10 percent. 

VA treatment records from January 1998 to June 2007 show that 
the veteran was admitted to the Portland VA medical Center 
for surgery due to recurrent paraesophageal hernia in August 
2001 and thoractomy with paraesophageal hernia repair was 
done at that time.  The records show that the veteran 
continued to complain of chronic left side pain described as 
anterior and posterior torso pain, left flank to mid trunk 
pain, and left lateral lower chest and upper flank pain.  A 
December 2006 treatment record indicated that the veteran's 
chest pain seemed mainly related to his chronic pain 
syndrome, although there also might be a component of 
exertional angina.  

March 2003 to June 2003 treatment records from Holy Family 
Hospital show that the veteran complained of chronic pain on 
the left side of his chest.  He reported pain in his anterior 
lateral lower chest wall somewhat affected by breathing, 
mostly affected by movement and direct pressure.  Although 
the veteran appeared to have a full range of motion, he had 
reduced muscle contraction with adduction of the shoulders.  
He also complained of discomfort with posterior extension of 
the shoulder.  The veteran was tender along the entire 
lateral chest wall and was tender around his costal 
cartilage.  He also had hyperthesia with palpations, 
consistent with intercostal nerve injury, insult or 
inflammation.  The veteran treated with nerve blocks on three 
occasions to attempt to alleviate his pain.

March 2004 to June 2004 treatment records from Dr. C.W. show 
continued treatment for the veteran's chest pain and chronic 
pain syndrome due to intercostal nerve damage. 

A VA examiner in May 2005 noted that the veteran reported 
chronic pain syndrome.  The examiner indicated that this 
probably resulted from damage to the intercostals nerve 
during the splitting of the ribs during the veteran's 
thoractomy and that the pain was located under left shoulder 
blade and breastbone.  The pain was worse with movement, but 
also sometimes by coughing or taking a deep breath.  The pain 
was refractory to intercostals nerve injections.  Motion of 
the shoulder and arm was shown to be normal, as was arm 
strength.  The diagnosis was chronic pain syndrome related to 
the surgery repair done in August 2001.  

A VA examiner in May 2007 noted that the veteran reported 
pain in his left chest wall, laterally.  This pain worsened 
with coughing, sneezing or when tired.  The veteran's pain 
level was reported as a seven, on a scale of one to ten.  
This pain can come on by itself or be trigged by physical 
activity and is relieved by medication.  The veteran reported 
that the pain occurred constantly and often travels around to 
his back.  Neurological examination revealed that there was 
neuralgia and sensory dysfunction with findings of tenderness 
and sensitivity along his intercostal nerve supplying left 
ribs 8-9.  Motor function of the veteran's upper extremities 
was within normal limits and sensory function was abnormal 
with findings of normal perception of toothpick sharpness 
above and below the operative scar.  Left upper extremity 
reflex testing revealed biceps jerk 2+ and triceps jerk 2+.  
The examiner gave a diagnosis of chronic pain syndrome due to 
intercostal nerve damage, left.  

During the veteran's May 2008 hearing, he testified that he 
walked with difficulty and cannot walk for long periods of 
time, needing to rest after about five minutes.  The veteran 
suffers from constant pain in his side and it stops him from 
breathing in the manner he was accustomed to.  He testified 
that sometimes at the end of a long day, the pain expands, 
moving more towards the front and back.  In addition the 
veteran testified that he has trouble sitting due to pain, 
and has to keep changing positions and moving around.  He 
indicated he has trouble sleeping, due to the pain and his 
pain averages around a seven on a scale of one to ten.  While 
the veteran testified that he is able to move his arms in 
terms of range of motion, the pain has affected his stamina, 
so that after a certain period of time, the pain grows so 
that he cannot continue.  His stamina is gone.  The veteran 
has been to all sorts of doctors and specialists and the 
treatments he has undergone have all been unsuccessful in 
stopping the pain on a consistent basis.  The veteran's wife 
testified that the veteran cannot help around the house like 
he used to, cannot go swimming or take walks with her and 
cannot take care of the family vehicles like he used to.  

The June 2005 rating decision rated the veteran's disability 
using DC 8210 and indicated that the 10 percent rating was 
assigned on the basis of moderate incomplete paralysis of the 
tenth cranial nerve.  The Board also notes that a February 
2006 statement of the case (SOC) affirmed the 10 percent 
disability rating for chronic pain syndrome due to 
intercostal nerve damage, left, pursuant to DC 8210.  
However, the June 2007 supplemental statement of the case 
rated the disability under DC 8211, indicating that the 
veteran's disability was more analogous to rating as 
paralysis of the eleventh cranial nerve.

The medical records show that the veteran's chronic pain 
syndrome due to intercostal nerve damage, left is manifested 
by tenderness and sensitivity along his intercostal nerve 
supplying left ribs 8-9, as well as constant pain.  There is 
no evidence of complete paralysis, as the veteran is able to 
continue with motion, albeit painful motion, characterized by 
tenderness and sensitivity along the intercostal nerve.  
There is also no evidence of associated impairment to the 
veteran's voice, respiration, pharynx, stomach and heart.  
Therefore, the veteran's chronic pain syndrome due to 
intercostal nerve damage, left is better rated under 38 
C.F.R. § 4.124a, DC 8211and not DC 8210.  DC 8211 governs 
ratings of paralysis of the eleventh (spinal accessory) 
nerve.  Pursuant to such code, a 10 percent evaluation is 
assigned for moderate incomplete paralysis of this nerve.  A 
20 percent evaluation is assigned for severe incomplete 
paralysis of this nerve.  A 30 percent evaluation is assigned 
for complete paralysis of this nerve.  38 C.F.R. § 4.124a, DC 
8211.  Ratings are dependent upon loss of motor function of 
sternomastoid and trapezius muscles.  DC 8211, Note.  

The Board finds the veteran's statements that he continues to 
have pain credible.  The veteran's persistent complaints of 
pain and discomfort are consistent with the known injury to 
his intercostal nerve.  The veteran's consistent subjective 
complaints of pain and altered sensation warrant a 10 percent 
evaluation under DC 8211.  This 10 percent evaluation is 
equivalent to moderate incomplete paralysis.  DC 8211; 38 
C.F.R. § 4.123.

There is some objective evidence that the veteran's 
complaints or symptoms warrant a finding of severe incomplete 
paralysis.  However, the veteran does not have complaints 
equivalent to tic douloureux or trifacial paralysis, or of 
such severity as to be equivalent to sciatic nerve 
involvement.  Such symptoms or symptoms of equivalent 
severity would warrant a 20 percent evaluation.  

Nevertheless, symptoms of equivalent severity are shown by 
evidence of additional functional impairment as demonstrated 
by pain on motion as well as weakened movement, excess 
fatigability and incoordination after even the least 
strenuous repetitive motion exercise.  As the veteran 
asserted on his Form 9 and testified during his May 2008 
hearing, his stamina is gone and he cannot use his arm for 
extended periods of time.  In addition he cannot walk or sit 
more than 15 minutes at a time without taking a break or 
moving to account for his pain.  The veteran has lost his 
ability to do maintenance on his vehicles or provide help in 
tasks around the house due to the pain he suffers.  With 
consideration of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 
supra, the Board finds that the veteran's chronic pain 
syndrome due to intercostal nerve damage, left more closely 
approximates severe incomplete paralysis of the nerve.  
Therefore, the Board finds that an initial rating of 20 
percent is warranted for the veteran's chronic pain syndrome 
due to intercostal nerve damage, left.  

To assign a higher, 30 percent, rating, the evidence would 
have to establish that the veteran's chronic pain syndrome 
due to intercostal nerve damage demonstrated complete 
paralysis of the nerve.  As previously noted, there is no 
evidence that the veteran has complete paralysis of the 
nerve.  

Consequently, the Board finds that the disability picture for 
the veteran's service-connected chronic pain syndrome due to 
intercostal nerve damage, left, does not more nearly 
approximate the criteria for a 30 percent evaluation than 
those for a 20 percent evaluation.  In light of the above, a 
rating higher than 20 percent is not warranted.  38 C.F.R. § 
4.7.

Accordingly, as the evidence is at least in equipoise, the 
benefit of the doubt doctrine is applicable and the veteran 
prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
Resolving reasonable doubt in the claimant's favor, an 
initial rating of 20 percent for chronic pain syndrome due to 
intercostal nerve damage, left is granted.

Duties to Notify and to Assist the Claimant 

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Formerly, 
the elements of proper notice included informing the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  Section 3.159 was recently amended, 
effective May 30, 2008 as to applications for benefits 
pending before VA on or filed thereafter, to eliminate the 
requirement that VA will request the claimant to provide any 
evidence in the claimant's possession that pertains to the 
claim.  73 Federal Register 23353 (April 30, 2008).

Notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see 
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  The 
notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a "service 
connection" claim, defined to include:  (1) veteran status; 
(2) existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  See 
Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

As for the duty to notify, in an August 2004 letter sent 
before the issuance of the rating decision granting service 
connection, the veteran was advised of his and VA's 
respective claim development responsibilities and was asked 
to identify sources of evidence concerning the disability.  
The Board notes that VAOPGCPREC 8-2003 held that, if, in 
response to notice of its decision on a claim for which VA 
has already given the section 5103(a) notice, VA receives a 
notice of disagreement that raises a new issue, section 
7105(d) requires VA to take proper action and issue a 
statement of the case if the disagreement is not resolved, 
but section 5103(a) does not require VA to provide notice of 
the information and evidence necessary to substantiate the 
newly raised issue.  By a March 2006 letter the veteran was 
provided notice of the evidence and information necessary for 
establishing an initial rating.  See Dingess.  The veteran 
was also provided notice of his and VA's respective 
responsibilities, and of the evidence needed for assignment 
of a higher disability evaluation, by a letter in April 2007.  
A February 2006 SOC and June 2007 SSOC explained what 
specific regulatory provisions govern his disability and why 
the increased rating claim remained denied.  The Board 
concludes that VA has met its duty to notify the veteran 
concerning his claim.

The Board also concludes that VA has met its duty to assist 
the veteran in developing the evidence to support his claim.  
The record contains his service treatment records and VA 
treatment records.  The record also contains the available 
private records identified by the veteran that he authorized 
VA to obtain.  The veteran was given VA examinations, with 
medical opinions, in connection with the claim.  He testified 
in a hearing before the undersigned.  The veteran has been 
accorded ample opportunity to present evidence and argument 
in support of the appeal.  Neither the veteran nor his 
representative has indicated that there are any available 
additional pertinent records to support the veteran's claim.  

In sum, the Board is satisfied that the originating agency 
properly processed the claim after providing the required 
notice and that any procedural errors in the development and 
consideration of the claim were insignificant and non-
prejudicial to the veteran.  See Bernard v. Brown, 4 Vet. 
App. 384 (1993).  


ORDER

An initial rating 20 percent for chronic pain syndrome due to 
intercostal nerve damage, left is granted.



____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs