Citation Nr: 0308278 Decision Date: 05/01/03 Archive Date: 05/15/03 DOCKET NO. 02-07 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable evaluation for costochondritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Spear Ethridge, Counsel INTRODUCTION The veteran had active duty from September 11, 1990 to January 5, 1991, from January 8, 1991 to May 19, 1991, and from July 1997 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). Therein, the RO granted service connection for costochondritis (also claimed as chest pains) and assigned a zero percent disability rating, effective July 1, 2000. The veteran maintains that she has been misdiagnosed. She contends that she has an elevated right hemidiaphragm, as opposed to costochondritis. The claim for service connection for an elevated right hemidiaphragm is referred to the RO for appropriate action. FINDING OF FACT The manifestations of the veteran's costochondritis include subjective complaints of daily pain in the middle, right and left chest, with excruciating flare-ups relieved only by rest; and objective evidence of chest wall tenderness, particularly in the second, third, and fourth costochondral junction, and no other physical or x-ray evidence of any injury or abnormality. CONCLUSION OF LAW The criteria for a 10 percent disability rating for costochondritis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§4.7, 4.40, 4.56, 4.73, Diagnostic Code 5321 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Congress has amended VA law to eliminate the requirement for a well-grounded claim, enhance VA's duty to assist a claimant in developing facts pertinent to his claim, and expand on VA's duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)). In addition, VA implemented regulations that reflect the statutory changes effected by the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2002). VA's compliance with the statutory and regulatory provisions came by way of the Board's February 2003 notification to the veteran of the enactment and promulgation of the VCAA. The Board provided the veteran and her representative with the applicable law and regulations and informed her of the type of information and evidence necessary to substantiate her claim, and of who is responsible for producing evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board also provided the veteran with the new codified VCAA regulations, and pursuant to 38 C.F.R. § 3.159, explained the types of medical and lay evidence needed to evaluate her claim. She was advised that she could submit private evidence or identify providers and authorize release of the records directly to VA. In February 2003, the Board also informed the veteran of its intent to review her costochondritis disability under diagnostic criteria not previously considered by the RO, 38 C.F.R. § 4.73, Diagnostic Code 5321. She was provided with that rating criteria. These actions are sufficient to satisfy the VCAA's notice requirements. With respect to the duty to assist, the RO secured all relevant treatment records and a relevant medical examination. In correspondence received from the veteran in March 2003, she informed the Board that she had no further evidence to submit in support of her claim. She said that she wanted her disability considered under the rating criteria for impairment of Muscle Group XXI. As there is no other allegation or indication that relevant evidence remains outstanding, the Board is satisfied that the duty to assist is met. 38 U.S.C.A. § 5103A. Finally, the veteran has had ample opportunity to present evidence in support of her appeal. Therefore, there is no indication that the Board's present review of the claim will result in any prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2002). If two evaluations are potentially applicable, 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (2002). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2002). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Costochondritis means inflammation of rib cartilage. Since the veteran's costochondritis does not have its own diagnostic code, it must be rated by analogy. 38 C.F.R. § 4.20. When service connection and a noncompensable rating were established for costochondritis in December 2001, the disability was rated by analogy to Diagnostic Code(s) 5099- 5024, the criteria pertaining to tenosynovitis, and rated based on limitation of motion of affected parts. In the May 2002 Statement of the Case, the RO considered Diagnostic Code 5021, for myositis, also rated as arthritis based on limitation of motion of affected parts. A review of the medical records shows that the veteran's service-connected costochondritis is manifested by complaints of pain in the chest wall, and she has been examined by VA and privately for this symptomatology. At VA general examination in September 2000, the veteran reported having a history of chest pain in the anterior chest wall, mostly on the left side, upper parasternal area. The pain was worse with deep breaths or coughing, it occurred 3 to 4 times per month, and lasted for 5 to 10 minutes. No respiratory infections were reported, and the past diagnosis was costochondritis. Physical examination of the chest was clinically normal on percussion and auscultation. There was minimal tenderness in the upper left parasternal area on the costochondral joint area on the second and third ribs. There were none on the sternum or right parasternal area. There was no swelling, effusion, redness, edema of the involved area. The examiner commented on past diagnostic tests, to include a 1995 chest x-ray, which was negative, and a 1997 right upper quadrant ultrasound, which was negative. The diagnoses included costochondritis, left more than right, chronic, intermittent. A private chest x-ray done in April 2001 shows the right hemidiaphragm was markedly elevated compared with the left. The impression was elevated right hemidiaphragm. The possible cause could have been a phrenic nerve injury, subpulmonic or subphrenic process. A fluoroscopic sniff test was recommended and done in May 2001. The reading showed right phrenic paralysis with paradoxical motion. Further diagnostic testing done in May 2001, in the form of right and left lateral decubitus of the chest, showed elevation of the right hemidiaphragm, without evidence of air trapping or pleural abnormalities. At VA examination in July 2001 performed by a private physician at the request of the RO, the veteran presented with costochondritis and chest pain. She reported that it hurt in the middle as well as right and left sides of the chest. This occurred on a daily basis. The costochondritis and chest pain were excruciating and there was no known precipitating factors. Nothing alleviated the flare-ups, and the only thing which helped was laying down and resting. The veteran did not have any cancer of the muscle and had no muscle injury. The chest x-ray from her private physician, showing that she had an elevated right hemidiaphragm, secondary to phrenic nerve injury, was again mentioned. The veteran thought that the chest pain was because of the same. Physical examination revealed chest wall tenderness, particularly in the second, third, and fourth costochondral junction. Neurological examination revealed that motor function was normal, and there was no muscle atrophy. Sensory was normal, and reflexes were normal. For the veteran's claimed condition of costochondritis and the claimed condition of chest pain, the diagnosis was the same, costochondritis. Her functional status was discussed, in that she could not sit or stand for a long periods of time, and that her daily activities were limited in terms of stair climbing, etc; but this discussion was mostly referable to another diagnosis of lumbar strain. In a corresponding Addendum, also dated in July 2001, it was noted, among other things, that chest x-rays showed that soft tissues and osseous structures were normal. The lungs were satisfactorily expanded and clear. The costophrenic angles were sharp. The impression was normal chest. As indicated earlier, the Board notified the veteran that it would consider another possible diagnostic code for rating the costochondritis by analogy. The condition may be rated by analogy under 38 C.F.R. § 4.73, Diagnostic Code 5321, which pertains to injury to Muscle Group XXI, the muscles of respiration (the thoracic muscle group). The veteran's disability is not particularly amenable to evaluation under Diagnostic Code 5321 in that there is no evidence of muscle injury as generally contemplated by the specified evaluative criteria for muscle injuries. However, a review of the Rating Schedule fails to disclose a diagnostic code that is more apt. For example, as regards the analogous rating codes relied on by the RO in assigning the current zero percent rating for costochondritis, under myositis or tenosynovitis, the diseases under these codes are rated on limitation of motion of the affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Codes 5021-5024 (2002). There is no applicable code for limitation of movement of the chest/ribs. Diagnostic Code 5297, which provides for a 10 percent rating for removal of one rib or resection of two or more ribs without regeneration; a 20 percent rating requires removal of two ribs, can be considered; but it is not applicable because the veteran does not actually have rib removal, and the medical evidence does not suggest that her costochondritis produces impairment which is analogous to removal of two ribs. There is no evidence of disability analogous to widespread musculoskeletal pain and tenderness to warrant a rating by analogy to fibromyalgia (Diagnostic Code 5025), no evidence of pulmonary disability to warrant a rating under any of the respiratory disorders (38 C.F.R. § 4.97), no diagnosis or evidence of neurological etiology to the veteran's pain related to costochondritis (38 C.F.R. § 4.124a ), and no evidence of herniation or rupture of the diaphragm (Diagnostic Code 5324). Therefore, the best rating analogy is to Muscle Group XXI, the thoracic muscle group, functions in respiration. Under Diagnostic Code 5321, when there is slight disability, a noncompensable rating is assigned. A 10 percent rating is awarded for moderate disability. A 20 percent rating is in order for moderately severe or severe disability. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (2002). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d) (2002). A slight muscle disability typically involves a simple muscle wound without debridement or infection. Service medical records should reflect incurrence of a superficial wound with brief treatment and return to duty, healing with good functional results, without complaints of the cardinal signs or symptoms of muscle disability. Objective findings should include minimal scarring, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. Id. A moderate muscle disability would result from a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. There should be service department records or other evidence of in-service treatment for the wound, reflecting consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, a moderate muscle disability would reveal small or linear entrance and (if present) exit scars, 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. Id. Moderately severe muscle disability results from a 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. Service or other records should show hospitalization for a prolonged period for treatment of wound, reflect consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, reveal evidence of inability to keep up with work requirements. Objective examination should reveal entrance and (if present) exit scars indicating track of missile through one or more muscle groups. In addition, there are 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. Id. Also applicable, is 38 C.F.R. § 4.40, for functional loss, because the veteran's pain is supported by adequate pathology as indicated in the record. After careful review of the evidence in this case, and pursuant to Diagnostic Code 5321, the Board finds that a 10 percent rating, and no more, is warranted for moderate impairment. The medical evidence of record supports the veteran's complaints of chest pain. As noted, the recent medical evidence of record reveals that she experiences chest wall tenderness, particularly in the second, third, and fourth costochondral junction. She has subjective complaints of daily pain in the chest. This evidence supports a 10 percent rating, but no more, for moderate impairment. 38 C.F.R. § 4.73, Diagnostic Code 5321. Again, such a rating is by analogy; the veteran is only service connected for costochondritis and such does not actually involve a muscle injury. This 10 percent rating for moderate disability of Muscle Group XXI encompasses fatigue pain as discussed in 38 C.F.R. § 4.56. The information concerning the extent of the injury and treatment in service for costochondritis and the objective findings in more recent medical records reveal none of the characteristics of a moderately severe (20 percent) muscle injury, under the guidelines of 38 C.F.R. § 4.56. Recent examination revealed no muscle injury or atrophy and objective findings consist primarily of only chest wall tenderness. The primary reason for granting this compensable rating is due to the veteran's well documented tenderness and pain of the chest wall. See 38 C.F.R. §§ 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5321. The veteran has asked for a separate rating for left paraspinal pain. There is no indication that left paraspinal pain is associated with her costochondritis. Regardless, the current 10 percent rating already contemplates her complaints of pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (although the Board is required to consider the effect of the veteran's pain when making a rating determination, the rating schedule does not require a separate rating for pain). In reaching this decision the Board considered and applied the doctrine of reasonable doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The 10 percent rating is assigned for the entire period of time that service connection has been in effect for this disability. Fenderson, supra. ORDER An initial 10 percent evaluation for costochondritis is granted; subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.