Citation Nr: 1237505 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 98-11 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating beyond 10 percent prior to February 13, 2012 and beyond 20 percent thereafter for costochondritis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1996 to October 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2001, September 2004 June 2007 and again in May 2010, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined and the report documents findings that are adequate to make a determination in the claim. The issue of a higher effective date earlier than February 13, 2012 for the assignment of the 20 percent rating for costochondritis 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. Prior to February 13, 2012, the Veteran's costochondritis is manifested by no more than moderate muscle injury. 2. From February 13, 2012, the Veteran's costochondritis is manifested by no more than severe or moderately severe muscle injury. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for costochondritis have not been met prior to February 13, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.73, Diagnostic Code 5321 (2011). 2. The criteria for a rating in excess of 20 percent for costochondritis have not been met since February 13, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.73, Diagnostic Code 5321 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran's initial evaluation claim arises from her disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA outpatient records as well as the Veteran's service treatment records. The Veteran was also afforded VA examinations in connection with her claim. See 38 C.F.R. § 3.159(c)(4) (2011). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate. Each examiner examined the Veteran and took a complete history. The claims file was reviewed. The examinations provided adequate basis for rating the Veteran's disorder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder. See 38 C.F.R. § 3.327(a) (2011). The examinations in this case are adequate upon which to base a decision. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. See 38 C.F.R. § 3.159 (c)(4) (2011). Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2011) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2011). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2011). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2011). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). The Court, citing Robertson v. Brown, 5 Vet. App. 70 (1993), held that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). A slight muscle wound is a simple wound without debridement or infection. 38 C.F.R. § 4.56(d)(1)(i). Objective findings would entail a minimal scar with no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function. Id. at (d)(1)(iii). A moderate muscle wound is 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. 38 C.F.R. § 4.56(d)(2)(i). Objective findings of a moderate disability are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Id. at (d)(2)(iii). 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. A moderately severe muscle wound is 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. 38 C.F.R. § 4.56(d)(3)(i). Objective findings of a moderately severe muscle wound are manifested by entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Id. at (d)(3)(iii). 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. A severe muscle wound is a 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. 38 C.F.R. § 4.56(d)(4)(i). Objective findings of a severe muscle wound are manifested by ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Id. at (d)(4)(iii). Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Id. Muscles swell and harden abnormally in contraction. Id. Tests of strength, endurance, or coordinated movements compared with corresponding muscles of the uninjured side indicate severe impairment of function. Id. The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). In this case, in June 2012, the Veteran was assigned a 20 percent disability rating for residuals of a SFW under Diagnostic Code 5321. That Code provides: Group XXI; Function: Respiration; Muscles of respiration; Thoracic muscle group; Severe or Moderately Severe, 20; Moderate, 10; Slight. 38 C.F.R. § 4.73, Diagnostic Code 5321 (2011). Prior to that time the disorder was rated at 10 percent under Diagnostic Code 5021 which provides that that myositis will be rated on limitation of motion of the affected part, as arthritis, degenerative. See 38 C.F.R. § 4.71a, Diagnostic Code 5021 (2011). The diseases listed under Codes 5013-5024, that is, osteoporosis, osteomalacia, benign new growths of bones, osteitis deformans, gout, intermittent hydrarthrosis, bursitis, synovitis, myositis, periostitis, myositis ossificans, and tenosynovitis, are rated on limitation of motion of the affected parts, as degenerative arthritis, under Code 5003, except for gout which is rated under Code 5002. 38 C.F.R. § 4.71a, Diagnostic Codes 5021-5024. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2Vet. App. 625, 629 (1992). While the Board will consider all potentially applicable codes, here, it appears that the criteria of Diagnostic Code 5321 are more analogous to the diagnosed disability and should be considered in rating that disability. Although Diagnostic Code 5321 addresses the impairment of the muscles of respiration, and costochondritis by definition does not involve muscles because it pertains to inflammation of the cartilage where ribs attach to the breastbone or sternum, due to a similar anatomical location and symptomatology Code 5321 is considered in evaluating the costochondritis. The Veteran contends that her service-connected disability is more disabling than reflected in the current rating percentages assigned. In this regard, lay statements are considered to be competent evidence when describing symptoms or an event. However, symptoms must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Evidence The service treatment records show the Veteran was seen in July 1997 for a Medical Board Evaluation examination when she complained of midsternal chest pain for five months. She reported the pain increased with activity. Examination showed her chest to be clear and heart examination showed regular rate and rhythm without murmurs. The chest wall was tender along the costochondral joints, bilaterally. The finding was costochondritis. The Veteran was examined by VA in December 1997. She complained of mid-sternal chest pain which is sharp and lasts for three to five minutes and occurs approximately four to five times a week. It is not related to activity and there is no shortness of breath. Examination showed she was not in any acute cardiorespiratory distress. There was chest tenderness up from the second to fourth costochondrial joints on the right side. There were no wheezes or rales and the heart examination showed regular rate and rhythm. Mild tenderness was noted in the right upper interscapular region. Neurological examination showed no abnormalities. An EKG was normal and a chest X-ray shows the lungs to be clear. The pertinent diagnoses were costochondritis of the right second to fourth joints, and chest pain most likely secondary to costochondritis. Outpatient treatment records dated beginning in 1998 show treatment for complaints of chest pain due to costochondritis. A February 1998 echocardiogram was normal. The Veteran was examined by VA in May 2002. She complained of midthoracic pain on and off. Examination of the chest showed no action of the secondary muscles of respiration. Heart sounds were normally heard. There was minimal tenderness over the sternum. The lungs were clear to percussion and auscultation. All movements of the spine were normal. There were no focal neurological signs elicited. X-rays were normal. The pertinent diagnosis was chronic costochondritis. The examiner stated that there was no functional loss due to the Veteran's costochondritis as long as she takes appropriate pain medications and that the disability of the musculoskeletal group and impairment is slight. The Veteran was examined by VA in February 2003. She complained of pain in front of the chest wall near the sterna area. The pain was intermittent and there was no activity relationship. It was noted that she was not taking any medications. On examination it was noted that the Veteran was a healthy looking female that did not look like she was in any pain. Examination of the thoracic spine was normal. Anterior chest wall examination and sternum examination showed no deformity or swelling. There was tenderness along the costochondral area mostly on the right side. X-rays of the thoracic and lumbar spine as well as the sternum were normal. The diagnoses were: history on injury to the chest wall with current tenderness across the costochondral area mainly on the right side; X-rays are normal; the current diagnosis is costochondritis; no diagnosis of the lower thoracic spine at this time. The Veteran was examined by VA in February 2012. The claims file was reviewed. The examiner indicated that there were no flare-ups or residuals of costochondritis and the pain level is at a moderate level on a constant basis. It was noted that this was on a daily basis. There were no additional limitations with flare-ups. The examiner stated that there was bone involvement in that this is the costochodral junction in the sterna area, predominately with palpable tenderness which is moderate to moderately severe. Muscle strength was fair to normal and there was no muscle involvement. X-rays were not order since the Veteran was pregnant. The diagnosis was, moderate to moderately severe costochondritis, sternal area. It was noted that the Veteran has not missed any work due to costochondritis. The examiner reported that this disorder is inflammation of the costochondral junction. The examiner stated that there is no muscle involvement or respiratory system impairment or impairment of the muscle groups. Discussion Prior to February 2012 Given the foregoing, during this time period, it is not demonstrated that the Veteran's costochondritis is analogous to a moderate injury or impairment for a 10 percent rating under Code 5321. Rather, her complaints of intermittent pain and localized tenderness at the costochondral junctions, are shown to approximate slight injury or impairment. The function of MG XXI is respiration and multiple examinations have shown that the Veteran's costochondritis does not result in any respiratory problems. Additionally, physical examination has not revealed any chest deformity and no impairment of function in the chest area has been identified. The Veteran's sole complaint in the chest area has been pain, which is contemplated by the initially assigned 10 percent rating when evaluated as a muscle injury. See 38 C.F.R. § 4.73 (Diagnostic Code 5321). As noted previously, pain has been the only identified symptom in the chest area. Without sufficient evidence that the disability results in limitation of motion in the chest area warranting a rating in excess of 10 percent, a higher initial rating is not warranted. See 38 C.F.R. § 4.71a (Diagnostic Codes 5021-5024). Costochondritis may be rated as a musculoskeletal disability under 38 C.F.R. § 4.71a. Nevertheless, a compensable rating is not warranted upon application of Diagnostic Codes 5002, 5003, and 5013-5024. Musculoskeletal disabilities are rating on limitation of motion. The clinical evidence discussed above does not show that the Veteran's disability results in limitation of motion in the costochondral junction in the chest region where intermittent pain was localized, and the Veteran herself has not reported any limitation of motion on evaluation of her disability. Nor does the evidence show that she suffers exacerbations akin to rheumatoid arthritis for consideration of a compensable rating under Code 5002. The Veteran's representative has argued that Diagnostic Codes 5297 and 5319 should be considered. The Board finds that neither code is relevant in this claim. DC 5297 refers to removal of ribs and thus is not applicable, and DC 5319 would offer no basis for a higher rating as the Code refers to muscles which support and compress the abdominal wall. From February 2012 The Board notes that because a higher rating is not available under DC 5321 (the 20 percent assigned is the highest available), a higher rating may only be assigned if another diagnostic code is used. The evidence does not show that a rating higher than 20 percent is warranted for this time period. The examiner in February 2012 stated that the pain level is moderate and the tenderness was moderate to moderately severe. The Board notes that the Veteran's costochondritis does not involve any muscles, but instead involves inflammation of the cartilage. However, this Diagnostic Code addresses the moderately severe to severe impairment of her respiration function. Moreover, as noted above, the Veteran does not have removal of ribs (Diagnostic Code 5297) nor synovitis/degenerative arthritis (Diagnostic Codes 5020 and 5003). The Board has considered whether alternative rating for costochondritis would result in a higher rating, but concludes it would not. In addition, the Board has considered whether staged ratings are warranted; however, there is no schedular basis for assigning a higher rating at any time during the initial-rating period. Additional Considerations Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Here during the entire appeal period, there is no showing of functional impairment. In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2011). If the claimant or the evidence raises the question of entitlement to a higher initial or increased evaluation on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular evaluation is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. In this case, the evidence does not raise the question of whether the Veteran is entitled to an increased evaluation on an extraschedular basis by establishing interference with employment secondary to costochondritis. The rating criteria contemplate a moderately severe or severe disability. The Veteran's disability falls within these criteria and there is no evidence of manifestations outside the rating schedule. The schedular criteria upon which the evaluation is based reasonably describe the level and symptomatology of the Veteran's costochondritis and include consideration of evidence of an inability to keep up with work requirements. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial rating beyond 10 percent prior to February 13, 2012 and beyond 20 percent thereafter for costochondritis is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs