Citation Nr: 1305487	
Decision Date: 02/14/13    Archive Date: 02/21/13

DOCKET NO. 04-13 128	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for a low back disability.

2. Entitlement to a disability evaluation in excess of 10 percent for costochondritis. 

3. Entitlement to a compensable disability evaluation for gastritis prior to July 22, 2011 and to a disability evaluation greater than 10 percent thereafter. 


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel



INTRODUCTION

The Veteran had active service from January 1987 to January 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from July 2010 to August 2012. In the September 2012 Supplemental Statement of the Case (SSOC), the RO specified that this evidence was reviewed. 

In August 2005, October 2007, and June 2011 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. 

In a September 2012 rating decision, the RO increased the Veteran's disability evaluation from noncompensable to 10 percent, effective July 22, 2011. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993).


FINDINGS OF FACT

1. The Veteran has not been shown to have a low back disability, that manifested in service or within one year thereafter, or a current back disability that is causally or etiologically related to her military service or to a service connected disability. 

2. The Veteran's costochondritis is manifested by chest wall pain which is made worse with head movement. 

3. Prior to July 22, 2011, the Veteran's gastritis symptoms were not chronic. 

4. Beginning on July 22, 2011, the Veteran's gastritis symptoms were chronic but she did not have multiple small eroded or ulcerated areas. 


CONCLUSIONS OF LAW

1. The Veteran's low back disability was not incurred or aggravated in service, and may not be presumed to have been incurred in service, and is not proximately due to, or the result of, or chronically aggravated by a service connected disability. 38 U.S.C.A. §§ 1101,1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 

2. The criteria for a disability evaluation in excess of 10 percent for costochondritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.73, Diagnostic Code 5321 (2012).

3. The criteria for a compensable disability evaluation for gastritis prior to July 22, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7307 (2012).

4. The criteria for a disability evaluation in excess of 10 percent for gastritis as of July 22, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7307 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

However, if VCAA notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009).

VA has satisfied its duty to notify by issuing a notice letter June 2006. This letter advised the Veteran of what evidence was required to substantiate her claim for service connection, and of her and VA's respective duties for obtaining evidence. A follow up letter was issued September 2009 that provided notice regarding substantiation of an increased evaluation claim. Both letters provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. 

Although no pre-adjudication letter was issued, her claims were readjudicated in the December 2006, July 2010, and September 2012 Supplemental Statements of the Case. See Mayfield IV; see also Prickett, 20 Vet. App. at 376. 

With regard to the Veteran's costochondritis and gastritis claims, in a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As noted above, the September 2009 notice letter provided this information. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), lay statements, and reports of post-service medical treatment.

The RO provided the Veteran VA a examination for her costochondritis in August 2011. An examination for her gastritis was provided in July 2011. The August 2011 examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The July 2011 opinion was followed by addenda in August 2011 and October 2012. The report of the July 2011 examination combined with the addenda were also adequate. Id. 

This case was remanded in August 2005 so that proper VCAA notice could be provided and the Veteran could undergo a VA exam. It was remanded a second time in October 2007 so that proper notice could be provided. It was remanded a third time in June 2011 so that records could be obtained and the Veteran could undergo an examination. The Veteran has received proper notice and been afforded adequate examinations. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of her claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Entitlement to Service Connection for a Low Back Disability

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

A veteran who served during wartime service after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137 (West 2002). 

In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Wagner v. Principi, 370 F.3d 1089, 1096  (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity. 38 C.F.R. § 3.306(b). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Id.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Board notes that the presumption of soundness can be rebutted by clear and unmistakable evidence consisting of the Veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). 

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran has been diagnosed with lumbar strain and degenerative disc disease (DDD), satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. Her STRs show that when she entered service her spine was deemed to be within normal limits. Further, as discussed below, there is no evidence that rises to the standard of "clear and unmistakable evidence" that she had a low back condition that pre-existed service. VAOPGCPREC 3-2003 (July 16, 2003). In fact, in November 2011, the Veteran stated that she did not have a back problem prior to entering service. She is presumed to have entered service in sound condition. In March 1988, she was in a motor vehicle accident; the vehicle she was a passenger in was rear-ended. She hit the windshield with her forehead. She did not lose consciousness. She reported pain in the side of her neck and in her mid-low back. She was tender to palpation over the paraspinal muscles at T12-L1. She was treated with Motrin and placed on light duty. After the accident, she was treated for headaches several times but did not complain of back pain again during her period of service. She was discharged by a Medical Examination Board for her service connected costochondritis and there is no separation examination of record. 

The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of arthritis was in April 1992, when an x-ray showed mild narrowing of disc space between L3 and L4 with moderate spur formation in the lower lumbar vertebrae. Prior to that time, she had a normal spine x-ray in July 1991. Because she was not diagnosed with arthritis within one year of her separation from service in January 1991, presumptive service connection is not warranted. Id. 

The Veteran underwent a VA examination in July 2006. The examiner noted the Veteran's March 1988 and 1991 back "sprain" and initial diagnosis of DDD in 2001. The examiner concluded that the Veteran's DDD was not related to service, but was more likely due to a naturally occurring phenomenon. He further stated that her back disability was not related to her costochondritis because that disorder affects the chest wall and is unrelated to her spine. 

The July 2006 examination is inadequate. Although the examiner indicated that the claims file was reviewed, the examiner outlined entirely incorrect facts and omitted pertinent medical history. Specifically, the Veteran may have "sprained" her low back in the military but it is unclear whether the examiner was aware that she was in a serious motor vehicle accident in service where she hit her head. Further, she was diagnosed with degenerative changes prior to 2001. As noted above, degenerative changes were detected on x-ray in April 1992. The examiner did not reconcile the conflicting evidence that the Veteran may have had rheumatoid arthritis of the spine prior to her military service. 

Lastly, the examiner did not discuss whether the Veteran's service connected costochondritis aggravated the Veteran's back disability. He simply stated that it was not likely related to costochondritis. 

Because the July 2006 VA examination was inadequate, it is not probative evidence in favor of or against the Veteran's claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). 

The Veteran underwent a second VA examination in July 2011. The examiner concluded that the Veteran's back disability was not related to service or to her costochondritis. Instead, it was caused by natural age progression. The examiner noted that she was in a motor vehicle accident in March 1988. However, she was treated for a head injury, not a back injury. 

In August 2011, a different examiner wrote an addendum to the July 2011 report of examination. The examiner stated that he agreed with the July 2011 VA examiner that the Veteran had no pre-existing condition. The examiner stated that "[it] is not possible to attribute the arthritis either to service or to the time prior to it without resorting to speculation."  Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). With regard to the Veteran's arthritis, the speculative opinion is adequate because the examiner provided an explanation for why he could not provide an opinion without speculating. He explained that the Veteran was exposed to conditions that could back injury but that exposure is not the same thing as documented injury. With regard to arthritis, examiner's speculative opinion, although adequate, is not probative evidence in favor of or against the Veteran's claim. 

The examiner also stated that it was less likely that her DDD could be attributed to service because there is no medical literature to support a causal relationship between costochondritis and spinal arthritis. The examiner concluded that costochondritis does not cause lumbar arthritis. With regard to DDD, the examiner's opinion and rationale provide evidence against the Veteran's claim. 

In August 2011, the examiner who conducted the July 2011 examination wrote an addendum opinion. He stated that the Veteran had no pre existing back conditions other than a small back strain at age 12 that had no residuals. Because the Veteran did not have a pre-existing condition, the examiner concluded that there was no pre-existing condition that was aggravated by service.  As discussed above, the Veteran entered service in sound condition, and there is no clear and unmistakable evidence to rebut this presumption.  Aside from the unsupported findings of one examiner, there is no other evidence establishing that she entered service with a preexisting condition. This is insufficient to establish that the Veteran entered service with a preexisting condition, which is the first prong of the two prong rebuttal standard. Further, the Veteran stated in November 2011 that her back pain began in Germany in 1989 and that she did not have arthritis as a child. Her competent and credible statement supports the conclusion that she entered service in sound condition. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  

In October 2012, another addendum opinion was provided. The examiner diagnosed the Veteran with DDD. He noted that the Veteran also had a back strain in 1988. She reported that in service she slept on cold ground and sat in cold vans a lot. She recalled being prescribed anti-inflammatory medication. She had to lift more than 40 pounds frequently for three years. The examiner opined that there was no evidence to support the conclusion that she had a pre-existing back condition. He noted that her position as a military police person required long periods of heavy lifting. However, there was no evidence that her DDD was caused by service, including by the March 1988 motor vehicle accident because the report of the accident does not provide a diagnosis of a back injury, only a head injury was diagnosed. 

The examiner also concluded that there was no conflicting evidence. Compared with multiple statements that the Veteran did not have a pre-existing condition, the statement of a previous examiner who stated, "[t]here is also a question of a history having some rheumatoid arthritis as a child...[.]" is outweighed because there was no evidence that the Veteran had rheumatoid arthritis prior to service and that the examiner's statement did not rise to the level of conflicting evidence. 

The examiner's October 2012 statement provides probative evidence against the Veteran's claim. 

In June 2001, the Veteran received treatment at a private hospital. She was in a motor vehicle accident in June 2001 and she complained of low back pain as a result. She was taken to the emergency room on a trauma board and in a rigid C-collar. Upon examination, she had soft tissue and bony tenderness in her upper cervical spine. Her lower extremities were atraumatic. The x-ray of her cervical spine was normal. She was removed from the trauma board and then complained of some mild lumbar dysfunction. She had point tenderness in her mid lumbar region and was diagnosed with acute lumbar strain. The treating physicians did not note that she had a back disability that was related to service. 

The Veteran's remaining treatment records do not provide a nexus between her current back disability and her period of active duty. 

The evidence of record does not support a nexus between the Veteran's period of active service and her low back disability. Hickson, 12 Vet. App. at 253.

The Veteran has asserted that she has had back pain continuously since 1989. She stated that her arthritis was caused by laying on the cold ground and working in cold vans while serving in Germany. The Veteran is competent to discuss observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). Her post service treatment records show that she was diagnosed with degenerative changes of the back in April 1992, slightly more than a year after leaving service. Her statement is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 

However, her assertion is outweighed by the findings of the VA examiners who concluded that her back disability is part of the natural aging process. The Veteran's allegation that serving in cold weather caused her arthritis has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Further, her STRs do not document back pain other than a single complaint following her March 1988 motor vehicle accident. This reduces the probative value of her assertion. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). Service connection based upon continuity of symptoms is not warranted. 38 C.F.R. § 3.303(b). 

The Veteran has asserted that her back disability was caused or aggravated by her service connected costochondritis. As noted above, a VA examiner concluded that there is no medical literature supporting a link between these two conditions. Secondary service connection is not warranted. 38 C.F.R. § 3.310. 

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable, and her claim for service connection for a low back disability must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Increased Evaluation Claims

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon 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, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Costochondritis

The Veteran's costochondritis is currently evaluated as 10 percent disabling by analogy under Diagnostic Code 5399-5321. 38 C.F.R. § 4.73. Costochondritis is not specifically listed in the rating schedule. An unlisted condition may be rated under the Diagnostic Code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. When a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first two digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. 

The most closely analogous Diagnostic Code is Diagnostic Code 5321, which addresses muscle injuries to Group XXI muscles of respiration: Thoracic muscle group. A noncompensable evaluation is warranted for a slight disability. A 10 percent evaluation is warranted for a moderate disability. A 20 percent evaluation is warranted for a severe or moderately severe disability. 38 C.F.R. § 4.73. 

38 C.F.R. § 4.56 provides guidance for the evaluation of muscle disabilities as slight, moderate, moderately severe, or severe. 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) (2012). Slight disability of muscles results from a simple wound of muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1) (2012). Moderate disability of the muscles results from 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) (2012). Moderately severe disability of muscles results from through and through or deep penetrating wound with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. It requires indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of the muscles results from through and through or deep penetrating wound with extensive debridement, prolonged infection, sloughing of soft parts, and intermuscular scarring and binding. It requires ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56(d)(4) .

The Veteran underwent a VA examination in September 2002. She reported a history of steroid injections for her chest wall pain but was not taking medication at the time of the examination. She reported having pain in her upper chest wall on the right and left side with any type of head movement. She stated that any type of twisting or overhead lifting of her arms aggravated her chest pain. She laid down for relief of symptoms. Upon examination, there was tenderness between the second and third intercostals spaces on both sides of the sternum. There was no inflammation, warmth, or swelling. She was able to turn her head but complained of a pulling pain. Her muscle strength was "good." The examiner found that she did not have bone, joint, or nerve damage. 

Post service treatment records show that at a November 2002 social and industrial survey, she had inflammation of the chest wall near her breastbone. It caused sleep disturbance during flare ups. She reported having injections in the 1990s, but none since 1999. 

In August 2011, she underwent a second VA examination. She complained of chest wall pain and tenderness since the 1980s. The pain was persistent and she stated that she received injections into the costochondral area of her chest. Rotation of her shoulders caused pain in her chest. The examiner concluded that she had costochondritis with pain and tenderness over the costosternal junction. He found that the Veteran could function independently and perform her activities of daily living (ADLs). He concluded that analysis of functional impairment as set forth in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), could not be performed on the chest wall. He concluded that at work, she could not bend or perform heavy lifting, but stated that this was due to her back disability. 

VA treatment records show complaints of bilateral shoulder pain. However, this was attributed to rotator cuff tendonitis due to osteophyte formations in both shoulders. 

The remaining medical evidence of record does not pertain to costochondritis. 

The Veteran has costochondritis manifested by persistent chest wall pain and tenderness that is aggravated by movement of her head. No functional limitation due to her costochondritis has been identified. The Veteran is not shown to have symptoms analogous to a severe or moderately disability of the muscles of respiration. 38 C.F.R. §§ 4.73, Diagnostic Code 5321, 4.56(d)(3) (2012).  Significantly, during a September 2002 VA examination, it was noted that her muscle strength was good.  She did not have bone, joint or nerve damage.  At a more recent VA examination in August 2011, the examiner indicated that despite tenderness and pain, the Veteran could function independently and perform ADLs. The Board notes in this regard that the rating schedule does not provide a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997).  For these reasons, the Board finds that the overall disability picture for the Veteran's costochondritis does not more closely approximate a 20 percent rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 

Because there is no evidentiary basis upon which to assign a rating in excess of 10 percent and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505.

Gastritis

Prior to July 22, 2011, the Veteran's gastritis was assigned a noncompensable evaluation under Diagnostic Code 7307, hypertrophic gastritis. 38 C.F.R. § 4.114. Under Diagnostic Code 7307, a 10 percent evaluation is warranted when there is chronic gastritis with small nodular lesions, and symptoms. A 30 percent evaluation is warranted when there is chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). 

In September 2002, the Veteran underwent VA examination. The examiner noted that the Veteran had gastritis but it was controlled on aciphex and had no impact on her ability to perform physical or sedentary employment. In October 2002 she had a normal GI series. 

In November 2005, she underwent an esophagogastroduodenoscopy (EGD) and it showed chronic gastritis with intestinal metaplasia and organisms consistent with h. pylori. 

In April 2006, she had a follow up for an incomplete colonoscopy. She had no upper or lower gastrointestinal symptoms. She reported a history of constipation and h. pylori hemorrhagic gastritis via EGD. In August 2006, she had a normal gastric examination. 

In September 2006, she underwent a second VA examination. She denied daily vomiting. She stated that she had hematemesis four times in the previous year. She denied melena or bright red blood in her stool. She complained of circulatory disturbance and bloating following meals. She denied diarrhea but reported chronic constipation, stating that she had a bowel movement 2 or three times per week. 

In November 2006, she had a normal gastric examination. In April 2007 she complained of mild epigastric tenderness. In October 2007, she was diagnosed with gastroenteritis after complaining of epigastric pain for three days. In November 2007, she had a normal EGD. In July 2009, she complained of nausea and vomiting. 

Prior to July 22, 2011, the evidence showed that the Veteran had symptoms of gastritis that were not chronic. As noted above, her gastritis was well controlled with medication in September 2002. She had normal gastric examinations in 2006 and 2007. The symptoms described in September 2006 were not chronic. There is no evidence of treatment for chronic symptoms in 2008 or 2010. Further, there is no evidence that she had small nodular lesions confirmed by gastroscope. For these reasons, a compensable evaluation for gastritis prior to July 22, 2011 is not warranted. 38 C.F.R. § 4.114.

On July 22, 2011, the Veteran underwent a VA examination. She reported chronic nausea that was worse than it was in 2009. She had nausea three to four times per day, four or five times per week. She had nausea both before and after meals. She reported chronic regurgitation and vomiting of yellow liquid up to four times per week. She had a history of hematemesis. She reported having semi-liquid bowel movements three times per week, alternating with episodes of constipation. She reported intermittent pain in her epigastrium two or three times per week. She also had chronic retrosternal heartburn. She did not have anemia. 

Based upon these chronic symptoms, the RO assigned a 10 percent evaluation effective on the date of her examination: July 22, 2011. Her disability picture does not more closely approximate a 30 percent evaluation because the evidence does not show that she has multiple small eroded or ulcerated areas. 38 C.F.R. § 4.114. Although she has chronic gastritis with symptoms, as noted above, the criteria set forth in Diagnostic Code 7307 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991). Therefore, a 30 percent evaluation is not warranted. 38 C.F.R. § 4.114.

There is no other medical or lay evidence of record pertinent to her gastritis. 

Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's gastritis does not more closely approximate a 30 percent rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 


Extraschedular Consideration

The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's costochondritis and gastritis are contemplated by the schedular criteria set forth in Diagnostic Codes 5321 and 7307. Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. 

When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  In this case, given the grant of TDIU  by a July 2010 rating decision, there is no remaining controversy for the Board to discuss. 


ORDER

Service connection for a low back disability is denied. 

A disability evaluation in excess of 10 percent for costochondritis is denied. 

A compensable disability evaluation prior to July 22, 2011 for gastritis is denied. 

A disability evaluation in excess of 10 percent for gastritis as of July 22, 2011 is denied. 


____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs