Citation Nr: 1746641 Decision Date: 10/19/17 Archive Date: 10/31/17 DOCKET NO. 13-28 484A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to an initial compensable rating for costochondritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which granted service connection for costochondritis and assigned a noncompensable rating, effective June 16, 2011, and denied entitlement to service connection for a heart condition/mild enlargement of heart. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have a current heart disability that is due to disease or injury in service. 2. The Veteran's costochondritis has been manifested by symptoms of significant chest pain, weakness, and fatigue most nearly approximating moderate injury and not more nearly approximating severe or moderately severe injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for an initial rating of 10 percent, but no higher, for costochondritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5321 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The RO's June 2011 notice letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The Board also finds that there has been compliance with the assistance provisions set forth in the law and regulations. The Veteran's service treatment records are associated with the claims folder, as well as all VA and private treatment records identified by the Veteran. The Veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2016). VA also satisfied its duty obtain a medical opinion when required. The Veteran was afforded VA examinations in November 2012 and July 2014. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). II. Background Service treatment records document multiple complaints of chest pain, cardiac tests, and a costochondritis diagnosis. In March 1989, the Veteran complained of chest pain and was referred to a physician. In March 1990, he complained of sharp chest pain that worsened with inhalation. On examination, there was tenderness to touch in the mid sternum. Radiology notes indicated that on exam there was mild enlargement of the cardiac silhouette, and differential diagnoses of pericardial effusion and cardiomyopathy. August 1990 service treatment records contain an assessment of costochondritis (non-cardiac). In September 1990, the Veteran complained of ongoing chest pain for 3 months. On exam, there was evidence of pain on palpation, but no edema or discoloration. An assessment of severe costochondritis was provided. Chest x-rays showed cardiac symptomatology and noted that etiology could not be completely excluded. Clinical testing was recommended. October 1990 service treatment records document complaints of chest pain for 7 months, no trauma involved. Chest x-rays showed mild enlargement of the cardiac silhouette with normal pulmonary vascularity. An assessment of chronic costochondritis was provided and a second opinion from a specialist was recommended. In November 1990 and December 1990, the Veteran continued to complain of chest pain. January 1991 service treatment records provided an assessment of questionable cardiomegaly and indicated that further testing was warranted. That same month, an echocardiogram was performed to rule out pericardial effusion. Tests results were normal with good function and no pericardial effusion. The Veteran continued to report chest pain in February 1991, but an echocardiogram was normal. In an April 1991 memorandum, regarding separation, the Veteran requested that his records be reviewed by a physician and that a physical examination be conducted if required. No separation physical examination was conducted. Post-service VA treatment records document complaints of chest pain and cardiac tests. A May 1990 Report of Medical Examination for Disability Evaluation, notes a history of mild external chest pain starting in October 1990 during service. Cardiovascular tests showed regular rhythm and no murmurs. The examiner concluded that the Veteran did not have angina. November 2002 chest x-rays showed no cardiomegaly. In November 2004, he complained of worsening shortness of breath and chest pain. An assessment noted that costochondritis could be contributing to the Veteran's symptoms. In October 2006, the Veteran was admitted to a VA hospital for symptoms of chest pain and dyspnea after cocaine use. Chest x-rays showed cardiomegaly with pulmonary edema. A diagnosis of costochondritis was provided. July 2009 VA treatment records document complaints of shortness of breath and weakness. Chest x-rays showed cardiomegaly without pulmonary edema. July 2011 chest x-rays were limited with an impression that cardiomegaly was suspected. In August 2011, the Veteran complained of chest pain and an echocardiogram was performed. Treatment records note that the reason for the study was coronary artery disease. However, the cardiologist noted that the study was technically difficult but near upper limits of normal. September 2011 and January 2012 cardiac exams were normal. The Veteran was afforded a VA heart examination in November 2012. A review of the claims file was noted. The Veteran reported a history of chest pain and shortness of breath. The examination report found that the Veteran had non-cardiac medical conditions of costochondritis and obesity, but he did not have a heart disability. There was evidence of pain on palpation along the sternum, but physical examinations were otherwise normal. There were no scars. METs testing showed symptoms of dyspnea and fatigue during activity. As for functional impact, the examiner opined that there was no function impact and noted that the Veteran was currently enrolled in vocational rehabilitation. Additional post-service VA treatment records document complaints of chest pain. In May 2013, the Veteran was admitted for three days to treat chest pain and shortness of breath. Based on evaluation, chest pain was found to be musculoskeletal. The Veteran was afforded a VA muscle injuries examination in July 2014. A review of the claims file and costochondritis diagnosis was noted. As for history, he had a nonpenetrating Muscle Group XXI injury treated in service that persisted since discharge. The Veteran reported treating pain with over the counter medication and flare-ups with lifting and weather changes. Symptoms of occasional fatigue and pain were noted. Muscle strength tests were normal with no atrophy. As for function impact, the examiner opined that costochondritis did not impact his ability to work. In May 2015, the Veteran complained of chest pain. VA treatment records contain chest x-rays containing no acute cardiopulmonary process, and an echocardiogram showing no ischemic changes. III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no bright line rule prohibiting consideration of evidence dated prior to the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). The Veteran claims to have a heart disability, to include mild enlargement of the heart, due to disease or injury in service. For the following reasons, the preponderance of the evidence is against the Veteran's claim for service connection for a heart condition. Service and post-service treatment records document numerous complaints of chest pain, however, no cardiac diagnosis. Although in March 1990 and October 1990, cardiac tests showed an enlarged heart, a cardiac condition was not found. On the contrary, based on October 1990 chest x-rays, a diagnosis of chronic costochondritis was provided. Post-service in October 2006, chest x-rays showed cardiomegaly, and a diagnosis of costochondritis, but no cardiac diagnosis, was provided. Further, on November 2012 VA examination, the examiner acknowledged the Veteran's complaints of chest pain and concluded that the Veteran had non-cardiac medical conditions. The weight of evidence thus reflects that the Veteran's symptoms including chest pain have been attributed by multiple health care professionals to his costochondritis and not to a heart disorder or disease. The question of whether symptoms such as pain or an enlarged heart could constitute a disability for purposes of the VA compensation laws and regulations is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C.A. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). However, in Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." Id. In this case, the above evidence and analysis reflects that the Veteran's chest pain and enlarged heart are not due to a heart disease or injury. It follows that they are not due to disease or injury in service. In addition, the Veteran is competent to report certain types of symptoms and injuries, which are capable of lay observation, such as chest pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report that he had chest pain during service, and that he has experienced chest pain since service. There is no reason to doubt the credibility of the Veteran's reports, particularly given the consistency of the statements and the corroborating medical records. While the Veteran is competent to report that he has experienced chest pain and related symptoms since service, the question of whether these symptoms are attributable to a heart disorder is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the Veteran's assertions as to the etiology of his chest pain and enlarged heart are not competent. To the extent they are competent, the Board finds that the specific examination findings of the trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a heart disability. The benefit-of-the-doubt doctrine is therefore not for application in this instance and the claim must be denied. See 38 U.S.C. A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. IV. Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 10 percent rating. The Veteran's costochondritis is currently rated noncompensable under Diagnostic Code 5399-5321. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2016). When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Diagnostic Code 5321 is the provision for evaluating injuries to Muscle Group XXI, the thoracic muscle group whose function consists of respiration. This diagnostic code provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, and a 20 percent evaluation for a severe or moderately severe muscle injury. 38 C.F.R. § 4.73, Diagnostic Code 5321. 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). A "slight" muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). See also 38 C.F.R. § 4.56(c) (indicating that, for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement). "Moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and 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. 38 C.F.R. §4.56(d)(2); see also 38 C.F.R. § 4.56(b) (a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged). "Moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. §4.56(d)(3). A "severe" muscle disability contemplates 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, where there was hospitalization for a prolonged period for treatment of the wound. There should be a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objectively, the muscles 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). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies; (b) adhesion of the scar; (c) diminished muscle excitability on electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile; or (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4)(iii). As set forth above, the record reflects that the symptoms of costochondritis are significant chest pain, weakness, and fatigue, cardinal signs and symptoms delineated in section 4.56(c). See November 2012 and July 2014 VA Examination Reports. Given the record, the Board finds that an initial 10 percent rating is warranted for costochondritis for the entire period of the claim under Diagnostic Code 5321. A rating in excess of 10 percent, however, is not warranted under this code absent findings of hospitalization for a prolonged period and cardinal signs and symptoms which result in an inability to keep up with work requirements. The symptoms therefore do not more nearly approximate severe or moderately severe muscle injury. The Board acknowledges the Veteran's contention, by and through his representative, that a new VA examination is warranted because the last VA examination was conducted in July 2014. However, the mere passage of time does not trigger VA's duty to provide additional medical examination unless there is allegation of deficiency in the evidence of record. Hart, 21 Vet. App. at 508 (citing Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007)). Here, there is no allegation of deficiency in the record, just a general allegation of worsening and passage of time but no indication of symptoms, to include those as to which lay evidence is competent, relevant to the determination of whether a rating higher than 10 percent is warranted. The Board additionally finds that the Veteran's costochondritis does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If the disability picture is not adequately contemplated by the rating schedule, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the rating criteria specifically address the Veteran's costochondritis symptomatology, such as weakness, fatigue and pain, as described above. Moreover, the criteria of moderate, moderately severe, and severe is broad enough to encompass the Veteran's symptoms even though they are not specifically listed. Thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, consideration of whether there has been marked interference with employment or frequent hospitalization is not required, and referral for extraschedular consideration is not warranted. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran has not reported, and the evidence does not otherwise reflect, that he has been unemployed during the claim period due solely to service-connected costochondritis or that he has been prevented from securing and following gainful employment due to such disability. At the most recent July 2014 VA examination, the examiner opined that costochondritis did not impact the Veteran's ability to work and there is no evidence indicating otherwise. As there is no evidence of unemployability due to service-connected disability, the question of entitlement to a TDIU is not raised under Roberson and Rice in this instance. For the foregoing reasons, the preponderance of the evidence reflects that an initial 10 percent, but no higher, rating is warranted for the Veteran's costochondritis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for a heart disability is denied. Entitlement to an initial 10 percent rating for costochondritis is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs