Citation Nr: 1322311 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-07 132A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left ankle disorder. 2. Entitlement to a compensable rating for costochondritis prior to March 26, 2009. 2. Entitlement to a rating in excess of 10 percent for costochondritis on or after March 26, 2009. REPRESENTATION Appellant represented by: David Cormier, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to October 1981 and from August 2003 to July 2004. This case comes before the Board of Veteran's Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO in Boston, Massachusetts. Regarding the characterization of the appeal as to the claim to reopen, the Board notes that, regardless of the RO's actions, it has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board must first decide whether new and material evidence to reopen the claim for service connection for a left ankle disorder has been received. In regards to the claim for increase for costochondritis, the Board notes that while the RO originally found the Veteran's March 2009 VA Form 9 to be untimely and treated the VA Form 9 as a new claim for an increased evaluation for costochondritis, the RO subsequently issued a Supplemental Statement of the Case in May 2010 treating the VA Form 9 as timely. Accordingly, the Board finds that an appeal as to the Veteran's disagreement with the rating assigned for his-service connected costochondritis in the April 2007 rating decision has been perfected. During the pendency of the appeal, the RO issued another rating decision in September 2009 and increased the Veteran's disability evaluation for costochondritis to 10 percent effective from March 26, 2009. However, 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). Thus, the issue remains on appeal. In May 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing, the Veteran indicated his intent to withdraw the claim for service connection for left renal artery aneurysm. As such, this claim is withdrawn and no longer before the Board. See 38 C.F.R. § 20.204 (2012). After the hearing, the Veteran submitted a waiver of the RO's initial consideration of newly submitted evidence, which included copies of treatment records and a statement from his physician. Therefore, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304. In various written statements and during the Veteran's hearing, he has indicated that he has fibromyalgia, a sleeping disorder, chronic fatigue, and depression. However, the RO has not adjudicated claims for service connection for these disorders. Accordingly, these matters are not currently before the Board, and therefore, they are referred to the RO for appropriate action. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The merits of the claim for service connection for a left ankle disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. In a December 2004 rating decision, the RO denied the Veteran's claim for service connection for a left ankle sprain. The Veteran was notified of that decision and of his appellate rights, but he did not appeal. There was also no evidence or information received within one year of that decision that pertained to a left ankle disorder. 2. The evidence associated with the claims file since the December 2004 rating decision is not cumulative or redundant of evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disorder. 3. Throughout the appeal period, the Veteran's costochondritis has been manifested by chest pain consistent with no more than moderate muscle group injury. CONCLUSIONS OF LAW 1. The December 2004 rating decision that denied service connection for a left ankle sprain is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). 2. The evidence received since the December 2004 denial is new and material, and the criteria for reopening the claim for service connection for a left ankle disorder have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012) (as in effect for claims filed on and after August 29, 2001). 3. Resolving all doubt in favor of the Veteran, the criteria for a 10 percent disability evaluation, but no higher, for costochondritis prior to March 26, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.73, Diagnostic Code 5322 (2012). 4. The criteria for an evaluation in excess of 10 percent for costochondritis on or after March 26, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.73, Diagnostic Code 5322 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Given the favorable disposition of the application to reopen the claim for service connection for a left ankle disorder, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. There is no prejudice to the Veteran. As for the remaining claim for an increased evaluation, the Veteran was provided a notice letter dated in November 2006, prior to the initial adjudication of the claim in April 20007. Therefore, the timing requirement has been met. Moreover, the content of the notice satisfied the duty to notify provisions. In this regard, the November 2006 letter informed the Veteran of the medical and lay evidence needed to substantiate his claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, all identified and available post-service medical records pertinent to the years after service, and the Veteran's Social Security Administration (SSA) records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified any outstanding records that are available and relevant to the claims being decided herein. Moreover, the record includes various written statements provided by the Veteran and his representative, as well as a transcript of the Veteran's May 2013 Board hearing. During the May 2013 hearing, the undersigned Veterans Law Judge identified the issues on appeal. She explained why the claim for service connection for a left ankle disorder was denied and what evidence is needed to substantiate the claim. She also explained that the focus of the increased evaluation claim would be on the severity of the Veteran's disability. The Veteran was provided the opportunity to describe how his costochondritis affects him, and his functional impairment and current symptoms were discussed. The undersigned Veterans Law Judge further clarified where the Veteran receives his treatment in order to determine whether all relevant records had been obtained. Therefore, the Board finds that it has complied with the duties owed during a hearing. Moreover, the Veteran and his representative have not contended otherwise. The Veteran was also afforded a VA examination in November 2006 and August 2009 to determine the nature and severity of his service-connected costochondritis disability. 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 adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination, and they fully address the rating criteria that are relevant to rating the disability in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, with respect to the claim for increase, there is adequate medical evidence of record to make a determination in this case. 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). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. I. New and Material Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The RO originally denied the Veteran's claim for service connection for a left ankle sprain in a December 2004 rating decision. The pertinent evidence then of record included the Veteran's service treatment records and a September 2004 VA examination report. In the December 2004 rating decision, the RO noted that the Veteran's service treatment records documented treatment for a left ankle sprain in October 2003, but also observed that no permanent residual or chronic disability was shown in these records or on the September 2004 VA examination following his discharge from service. Therefore, the RO determined that service connection was not warranted for a left ankle sprain. The Veteran was notified of the December 2004 rating decision and of his appellate rights that month, but he did not appeal the denial of this issue. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Moreover, the Board notes that the Veteran did not submit any evidence or other information within one year of the issuance of that decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the December 2004 rating decision became final. Nevertheless, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran requested that VA reopen the previously denied claim for service connection in September 2006. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The evidence associated with the claims file since the December 2004 rating decision includes VA outpatient treatment records dated from July 2004 to May 2010, the Veteran's SSA disability determination, statements from the Veteran's treating VA physician Dr. G. (initials used to protect privacy), a transcript of the Veteran's May 2013 Board hearing testimony, and additional written statements from the Veteran and his representative. The VA outpatient treatment records document the Veteran's complaints of left ankle pain, which he related to service. In a May 2008 statement, the Veteran's treating VA physician, Dr. G., included a copy of a May 2008 left ankle MRI report, which noted findings suggestive of a chronic partial tear of the anterior tibiotalar ligament. In a May 2008 statement, Dr. G. also wrote that the Veteran suffered from a chronic left ankle pain syndrome that was initially treated while he was on active duty. In a March 2010 statement, Dr. G. indicated that the Veteran had a chronic partial tear of the left ankle that was clearly demonstrated on MRI. He noted that the original injury occurred in service and had continued to cause distress from pain to the present. Dr. G. stated that he would consider this problem to be service-connected. During the Veteran's Board hearing, and in various written statements, the Veteran alleged that he initially injured his left ankle in service while stationed at Guantanamo Bay. He reported that he experienced continued left ankle problems since his discharge from service. The Board finds that the evidence is "new" in that it was not before agency decision makers at the time of the December 2004 final denial of the claim for service connection. It is also not duplicative or cumulative of evidence previously of record, as there was no post-service diagnosis of a left ankle chronic partial tear at the time the claim was first denied. Moreover, the Veteran's statements as to continuity of left ankle symptoms since service, as well as the statements from Dr. G., address a potential relationship between the Veteran's in-service complaints and his current symptoms. The Board will presume the credibility of the newly-submitted evidence. See Justus, 3 Vet. App. at 513. As such, this evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a left ankle disorder and raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a left ankle disorder are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, for reasons discussed below in the remand, the Board finds that further development is necessary before the merits of the claim can be addressed. II. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, as the RO has already assigned staged ratings for the Veteran's costochondritis, the Board will consider the propriety of those ratings, as well as whether any further staged rating of the disability is warranted The Veteran's costochondritis has been assigned a noncompensable evaluation prior to March 26, 2009, and 10 percent evaluation thereafter pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5399-5322. VA's Rating Schedule does not contain a specific diagnostic code for costochondritis. Instead, through use of a hyphenated diagnostic code, the disability has been rated by the RO as analogous to impairment of muscle group XXII, whose function include rotary and forward movement of the head, respiration, and deglutition, and the following muscles of the front of the neck: (1) trapezius I (clavicular insertion); (2) sternocleidomastoid; (3) the "hyoid" muscles; (4) sternothyroid; and (5) digrastric. Under Diagnostic Code 5322, a zero percent rating is assigned for a slight muscle group injury, a 10 percent rating is contemplated for a moderate muscle group injury; a 20 percent rating is warranted for a moderately severe muscle group injury; and, a maximum 30 percent rating is assigned for a severe muscle group injury. 38 C.F.R. § 4.73, Diagnostic Code 5322. Diagnostic Code 5321 also provides the rating criteria for the evaluation of impairment of muscle group XXI, related to the muscles of respiration, namely the thoracic muscle group. Under that diagnostic code, zero percent rating is contemplated for a slight muscle group injury, a 10 percent rating is assigned for a moderate muscle group injury; and a 20 percent rating is warranted for a moderately severe or severe muscle group injury 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). Slight disability of muscles results from a simple wound of muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1). 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). 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). In this case, an August 2005 private treatment report documents an assessment of chest pain and costochondritis. A November 2005 report also reflects that there was reproducible tenderness at the right side of the chest. The Veteran's VA outpatient treatment records document his longstanding complaints of chronic chest pain. In September 2006, he presented with a history of chest pain for the past two weeks and costochondritis. An assessment of costochondritis was made at that time. During a November 2006 VA examination, the Veteran reported experiencing constant chest pain left of the sternum. He indicated that he occasionally experienced flare-ups of pain, which were usually triggered by movements and associated with a sudden feeling of dyspnea. He indicated that his exercise tolerance was poor and that he could no longer run, which he attributed to his chest pain. The Veteran denied having any cough, sputum, or hemoptysis with the pain. The only treatment consisted of pain medications, including Tylenol and Oxycodone. The examiner also noted that the Veteran recently underwent left renal artery repair in October 2006. The examiner indicated that he reviewed the claims file, which documented a negative stress test. He indicated that the nature of the pain and the fact that he was reproducible on examination was more consistent with costochondritis. On physical examination, there were normal heart sounds, and there was no venous congestion or edema. The examiner noted that there were no abnormal respiratory findings, and chest expansion and diaphragm excursion were normal. There was also no chest wall scarring or deformity of the chest wall. A chest x-ray revealed that the heart was not enlarged. There was no evidence of pneumothorax, congestive failure, or pleural effusion. There was a calcified granuloma in the left upper lobe, but a pulmonary function test revealed normal spirometry, normal lung volumes, and normal diffusion. There was no evidence of cor pulmonale or pulmonary hypertension. The examiner indicated that, while the Veteran's chest pain was subjectively incapacitating to him, there was little evidence that there was either significant lung or cardiac disease. The examiner commented that it seemed that mainly the chest wall caused him the pain and hence his difficulties on exertion. A November 2006 private treatment report reflects that the Veteran complained of chest pain with occasional tightness and difficulty breathing. He noted that the pain only lasted a few seconds, but that the frequency had increased since he underwent surgery. A December 2006 private treatment report reflects that the Veteran complained of constant sharp pain primarily along and near the midline from the sternum down to below the umbilicus. He indicated that the pain was worse when standing and after meals, and it was better when lying down. Medicine provided some relief. On examination, there was reproducible tenderness at the surgical site where the Veteran had recently undergone renal artery aneurysm repair. The examiner indicated that the there was sometimes an exaggerated response even on milder touch. An October 2008 medical report from the City of Worcester Department of Health and Human Services and completed by the Veteran's VA physician, Dr. G., reflects a diagnosis of myofascial pain syndrome. A November 2008 VA outpatient physical therapy report reflects that the Veteran complained that he could not sleep because of pain in his stomach, back, and chest if he moved. The Veteran performed therapeutic exercise. Manual therapy, including myofascial release techniques for the abdominals along the lower rib cage, pelvic crests, and along the lumbar spine, was also performed. There was local sterna/costal swelling on the left side of the chest to palpation. A December 2008 pain consultation note shows that the Veteran presented with a chief complaint of retrosternal pain. He described the pain as pressure, burning, stabbing, and sharp, with shooting pains in the neck. He rated the pain as a 7 on a scale to 10. The pain was present constantly and unrelated to breathing. It worsened with lifting, walking, and exercise, and the pain improved with rest. It was noted that the Veteran was currently taking Gabapentin with minimal improvement in his pain. He stated that the pain interfered with his ability to perform activities of daily living quite a bit. Atypical chest pain was assessed, and the examiner noted that fibromyalgia or myofascial pain syndrome should be considered. A December 2008 chest x-ray revealed a stable calcified granuloma in the left apex, but the lungs were otherwise clear bilaterally. The heart and mediastinum were unremarkable. There were no acute osseous abnormalities visualized. A CT scan of the chest revealed no secondary signs to suggest acute anterior chest wall injury. There were multiple pulmonary nodules measuring up to five millimeters in size. Correlation with any prior outside imaging was recommended. In December 2008, a history of sternal pain/atypical chest pain possibly related to costochondritis was indicated. The Veteran underwent a costochondral steroid injection at that time. VA outpatient treatment records also include a December 2008 report from Dr. G. indicating that the Veteran suffered from generalized myofascial pain syndrome and chest wall costochondritis. A May 2009 VA outpatient treatment report notes the Veteran's complaint of intermittent chest pain since 2003 and a history of fibromyalgia. He indicated that his chest pain was worse than usual and had increased in intensity. The pain was worse with movement and improved somewhat with rest. There were no associated symptoms to suggest a cardiac component. A diagnosis of costochondritis-type pain was indicated. It was noted that a nerve block had been attempted at the pain clinic. An assessment of chronic non-cardiac chest pain was noted. It was recommended that the Veteran continued outpatient analgesic medications as well as Gabapentin. During an August 2009 VA examination, the Veteran indicated that he had to carry several M60 and M16 rifles while serving at Guantanamo Bay. He stated that the repetitive motion of the rifle against his chest resulted in pain, which was mostly centered in the xiphoid. He noted that the pain was initially located to the xiphoid, but now it extended over the entire costochondral area and up the sternum. The Veteran stated that this pain severely limited his activities of daily living. He rated the pain as an 8 or 9 on a scale to 10, and he noted that the chest pain was present on a constant basis. He did get some relief after taking medication, but it resumed shortly thereafter. Precipitating and alleviating factors included repetitive motion, brushing teeth, lifting hands to eat, and lifting. The pain was worse with movement, and he could not lift more than 10 to 15 pounds. The examiner noted that the affected muscles included the pectoralis minor and major as well as the costochondral skeletal junction. There had been no other associated injuries, except for the fact that he had also been diagnosed with fibromyalgia. The Veteran had undergone treatment with Gabapentin with a little improvement, but then the pain slowly returned. He also underwent a steroid injection in 2008, which provided very mild improvement before the pain returned. The Veteran endorsed symptoms of a sharp, pinching-like sensation over the anterior chest wall as well as neck pain. He indicated that he could not lift and had difficulty getting got of bed and doing activities of daily living. On physical examination, the Veteran's gait was slow, and he walked with the assistance of a cane. There were no exit or entry wound scars on examination of his chest. Both sides were symmetrical. There were no gross abnormalities that were visualized. He did have bilateral gynecomastia without any breast masses. The Veteran pointed to an area of tenderness starting from the manubrium down to the xiphoid, extending beyond the costochondral junction, over the anterior chest wall bilaterally. There were no masses that were palpated, and there was no instability of the sternum. There was also no tissue loss, scar formation, adhesions, tendon damage, bone, joint or nerve damage, or overlying skin changes. The Veteran did not have any midline spine tenderness, although he did have tenderness over the paraspinal muscles bilaterally. There was no obvious muscle herniation. He did exhibit decreased ability to have normal range of function for activities, such as brushing his teeth and writing. Muscle contraction was felt in the paraspinal muscles near the neck. The examiner commented that much of the Veteran's range of motion of function was limited due to pain. After review of diagnostic imaging, the August 2009 VA examiner indicated that he Veteran did have decreased strength in certain muscle groups secondary to pain. There was also evidence of costochondritis based on the physical examination. However, he found that it was unclear as to how much fibromyalgia was affecting the Veteran, and a neurology consultation was recommended to assess the fibromyalgia. The examiner further indicated that the Veteran's activities of daily living were affected by his pain. In a March 2010 statement, the Veteran's treating VA physician, Dr. G., wrote that the Veteran's chest pain was felt to be atypical for costochondritis, and after extensive evaluation, it was felt to be part of a myofascial pain syndrome. Dr. G. noted that the Veteran's chest pain progressed and led to a diagnosis of fibromyalgia in August 2008. An October 2010 SSA disability determination report reflects that the Veteran was determined to be disabled and unable to work from August 2008 due to a number of medical impairments, including a left ankle ligament tear, fibromyalgia, status post renal artery aneurysm repair, fibromuscular dysplasia, degenerative disc disease of the lumbar spine, severe obstructive sleep apnea, atypical chest pain, depressive disorder, posttraumatic stress disorder, and an adjustment disorder with anxiety and depressed mood. During the May 2013 Board hearing, the Veteran reported that he experienced chronic pain in his chest. He also reported that he had myofascial pain syndrome that progressed into fibromyalgia. He indicated that he was able to do some activities around the house like cook and clean, but he was limited in these activities. He also had difficulty sleeping and reported that he used a CPAP machine and an acupuncture machine. He further indicated that he experienced flare-ups of pain during which he could not do anything. The aforementioned evidence reflects that the Veteran's costochondritis has been manifested primarily by chest pain affecting the pectoralis minor and major as well as the costochondral skeletal junction, which is consistent with a moderate muscle injury. The Board notes that this symptomatology has been present both prior to and following the March 26, 2009, as reflected on the November 2006 VA examination and in various treatment records. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his costochondritis more nearly approximated the criteria for a 10 percent prior to March 26, 2009. See 38 C.F.R. §§ 4.3 4.7. However, the Veteran has not been shown to have symptoms analogous to a severe or moderately severe disability of the muscles of respiration. 38 C.F.R. §§ 4.73, Diagnostic Codes 5321-5322, 4.56(d)(3). During an examination in 2009, the Veteran did have decreased strength in certain muscle groups with an impact on activities of daily living was noted on examination in 2009. However, there has been no evidence of palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles, as is required for a finding of moderately severe muscle injury. Other than pain and weakness, there were no other objective abnormalities indicated on VA examination and or in treatment records. Moreover, in December 2008, a CT scan of the chest revealed no signs to suggest an acute anterior chest wall injury, and there was no muscle herniation during the August 2009 VA examination. 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 for moderately severe or severe muscle injury under the applicable diagnostic codes. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's costochondritis is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. There is no indication of cardiac, respiratory, or other disability as the cause of the Veteran's chest pain. The Board acknowledges the reports of the Veteran as well as his treating VA physician that his costochondritis has progressed into a widespread myofascial pain syndrome or fibromyalgia. In this case, the Veteran is not service-connected for either disability, and thus, consideration of the symptomatology associated with these disabilities or rating based upon these disabilities is not appropriate. Indeed, as discussed above, the Board has referred such matters to the RO for appropriate action. Thus, for all of the foregoing reasons, the Board finds that the Veteran's chronic costochondritis symptomatology more closely approximates the criteria for a 10 percent rating for the entire appeal period. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected costochondritis is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. While the record reflects that the Veteran's costochondritis affects his ability to perform activities of daily living and work, such limitations are recognized in the rating for the disability. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which primarily consists of chest pain. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected costochondritis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER As new and material evidence has been received, the request to reopen the claim for service connection for a left ankle disorder is granted. Subject to the provisions governing the award of monetary benefits, a 10 percent disability evaluation is granted for costochondritis prior to March 26, 2009. An evaluation in excess of 10 percent for costochondritis is denied for the entire appeal period. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. As noted above, the Veteran's service treatment records reflect that he was seen for a left ankle sprain in service in 2003. Post-service VA outpatient treatment records also show that the Veteran has sought treatment for his left ankle complaints, which he related to his in-service injury. Reports from a VA physician, Dr. G., reflect a diagnosis of chronic partial tear of the anterior tibiotalar ligament, which he also related to the in-service injury. In addition, the Veteran has reported continuity of left ankle symptomatology since the initial in-service injuries. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals, such as ankle pain. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). In light of the Veteran's documented in-service and post-service treatment related to the left ankle, the evidence linking the Veteran's current diagnosis to service, as well as the Veteran's report of continuous symptomatology since service, the Board finds that a medical opinion is needed to resolve the claim for service connection on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left ankle. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should be made for any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left ankle disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran's service treatment records show that he was seen in October 2003 and November 2003 for a left ankle sprain after stepping off a decline while walking. Moreover, the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left ankle disorders. For each diagnosis identified, he or she should state whether it is at least as likely as not that the disorder is related to his injury and symptomatology in service or is otherwise causally or etiologically related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should undertake any other development it determines to be warranted. 4. The RO/AMC should then readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs