Citation Nr: 1806012	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  11-13 076	)	DATE
	)
	)

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


THE ISSUES

1.  Whether there is clear and unmistakable error (CUE) in a June 2003 rating decision that granted service connection for costochondritis with an effective date of December 20, 2001. 

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

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

[Whether the September 1988 Board of Veterans' Appeals (Board) decision that denied service connection for a respiratory disorder should be revised or reversed on the basis of CUE is addressed in a separate decision.] 


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Kate Sosna, Associate Counsel


INTRODUCTION

The Veteran had active duty service from October 1978 to October 1986 with additional Reserve service.

This matter comes to the Board on appeal from rating decisions issued in May 2010 (costochondritis), July 2011 (CUE), and June 2016 (TDIU) by a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A hearing transcript is associated with the record on appeal.

The Board observes that, following the issuance of a statement of the case in May 2016, the Veteran perfected an appeal as to the issues of whether new and material evidence had been received in order to reopen a claim of entitlement to service connection for hypertension, and entitlement to service connection for coronary artery disease in July 2016.  A review of the Veterans Appeals Control and Locator System (VACOLS) reveals that the Agency of Original Jurisdiction (AOJ) appears to have closed such appeal in error.  However, as such issues have not been certified for appeal, and as the Veteran has requested a Board hearing in connection with them, the Board will not accept jurisdiction over them at this time, and instead refers them to the AOJ for appropriate action.


FINDINGS OF FACT

1.  The June 2003 rating decision that granted service connection for costochondritis with an effective date of December 20, 2001, is final.
2.  In assigning an effective date of December 20, 2001, for the award of service connection for costochondritis, the June 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome.

3.  For the entire appeal period, the Veteran's costochondritis has been manifested by pain, weakness, and fatigueability, most nearly approximating moderately severe disability of Muscle Group XXI.

4.  The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The June 2003 decision that granted service connection for costochondritis with an effective date of December 20, 2001, is final.  38 U.S.C. § 7105 (c) (West 1991 & Supp. 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)].

2.  The criteria for the revision or reversal of the June 2003 rating decision that granted service connection for costochondritis with an effective date of December 20, 2001, on the basis of CUE have not been met.  38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017).

3.  The criteria for a 20 percent rating, but no higher, for costochondritis as a moderately severe disability of Muscle Group XXI have been met.  38 U.S.C. 
§§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5321 (2017).

4.  The criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  See also Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).

While the Veteran has made vague challenges as to the competence and impartiality of VA employees generally, which will be discussed in detail herein, he has not alleged any other deficiency with respect to VA's duties to notify or assist.  See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  CUE

The Veteran contends that there was clear and unmistakable error in the June 2003 RO rating decision with regard to the assignment of an effective date of December 20, 2001, for the grant of service connection for costochondritis.

As an initial matter, the Board finds the June 2003 rating decision is final.  In a letter dated that same month, the Veteran was notified of the grant of benefits and his appellate rights.  However, he did not appeal the assigned effective date.  In this regard, the claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  Moreover, no new and material evidence regarding such matter was received within one year of the issuance of the June 2003 rating decision and, while the Veteran subsequently submitted duplicate copies of service treatment records (STRs), no new relevant STRs were subsequently associated with the file.  Therefore, the June 2003 rating decision is final.  38 U.S.C. § 7105(c) (West 1991 & Supp. 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)].

Consequently, as the June 2003 rating decision is final, such will be accepted as correct in the absence of clear and unmistakable error.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105.

Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error.  In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Furthermore, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question.  Id.  Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993).  

Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo, supra.  
Where evidence establishes CUE, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. §§ 3.104(a), 3.400(k).  

The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel, supra.  

To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error.  An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE."  Fugo, supra.  It must be remembered that there is a presumption of validity to otherwise final decisions, and that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger.  

The Veteran contends there was CUE in the June 2003 rating decision, essentially because he was diagnosed with costochondritis in service and should therefore be awarded an earlier effective date.  Notably, the Veteran's argument that the Board should have considered his 1987 claim for a respiratory disorder as a claim for costochondritis is addressed in a separate decision.

As relevant to the general laws and regulations governing effective dates in effect at the time of the June 2003 rating decision, such state that, unless the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a) (West 1991 & Supp. 2002); 38 C.F.R. § 3.400 (2002).  For service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service.  38 C.F.R. § 3.400 (b)(2).  

In 2003, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim.  Such informal claim must have identified the benefit sought.  Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).

In reviewing all of the evidence of record at the time of the June 2003 rating decision, the Board finds no clear and unmistakable error of fact or law with respect to the assignment of December 20, 2001, as the effective date for service-connected costochondritis.  

In this regard, of record and considered by the RO in the June 2003 rating decision were private treatment records, VA treatment records, STRs, copies of STRs submitted by the Veteran, a May 2002 VA examination report, a February 2003 examination report, and lay statements of the Veteran.  The RO granted service connection because the Veteran suffered from costochondritis during service, had a current diagnosis, and the February 2003 VA examiner opined the Veteran's current costochondritis had its onset during his military service.  As to the effective date, the RO assigned December 20, 2001, as such was the date the Veteran's original claim for service connection for costochondritis was received.  

The RO's factual determination that the Veteran's claim was filed on December 20, 2001, is supported by a plausible factual basis, to include the absence of any prior claim for costochondritis in the record.  Here, the Board finds that there is no document of record that can be construed as a formal or informal claim for service connection for costochondritis prior to December 20, 2001.  Moreover, the RO specifically noted the Veteran's in-service treatment for costochondritis.  Thus, the sole fact the Veteran alleges was overlooked was actually discussed.  

Importantly, even if the RO had considered his 1987 claim for service connection for a respiratory disorder as a claim for service connection for costochondritis, as the 1988 Board decision is final, his 2001 claim would be a claim to reopen and the effective date could not be earlier than the December 20, 2001, claim.

Broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" can never rise to the stringent definition of CUE.  Fugo, supra.  Furthermore, clear and unmistakable error is not the mere misinterpretation of facts.  Oppenheimer, supra.

Therefore, based on the foregoing, the Board finds that correct facts as they were known at the time of the June 2003 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied.  Moreover, such rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim.  Therefore, the Veteran's CUE motion is denied.

III.  Increased Rating Claim

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id.

The Board also observes that disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca, supra.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40. 

Furthermore, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  Correia v. McDonald, 28 Vet. App. 158 (2016).  Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 

The Veteran's substernal chest pain has been diagnosed as costochondritis.  He contends that the current 10 percent rating does not reflect the severity of his disability, which causes pain, fatigueability, shortness of breath, and requires the use of a back brace.

Notably, costochondritis is a disability that is not listed under VA's rating schedule.  Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous.  38 C.F.R. §§ 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that "when a condition is specifically listed in [VA's schedule for rating disabilities], it may not be rated by analogy.").  

In this case, in the aforementioned June 2003 rating decision that granted service connection, the RO assigned a 10 percent rating for severe limitation of the dorsal spine under 38 C.F.R. § 4.71a, DC 5291 (2002).  Notably, the regulations for rating disabilities of the spine were revised effective September 26, 2003, prior to the Veteran's June 19, 2009, claim for an increased rating and spinal disabilities aside from intervertebral disc syndrome are now rated under a general schedule.  See 68 Fed. Reg. 51454 (Aug. 27, 2003).  Nevertheless, as the evidence of record does not document symptoms more closely approximating limitation of the spine, the Board finds that a further discussion of the ratings related to the spine is unwarranted.

Indeed, given the findings on examination, the Board finds that 38 C.F.R. § 4.73, DC 5321, which relates to disabilities of the muscles of respiration, more appropriately captures the nature of the Veteran's costochondritis.  See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011); see also Butts v. Brown, 5 Vet. App. 532, 539 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"); Pernorio v. Derwinski, 2 Vet. App. 625 (1992) (any change in a diagnostic code by VA must be specifically explained).  

Specifically, under DC 5321, disabilities resulting from injuries to the thoracic muscle group (Group XXI) are classified as slight, moderate, moderately severe, or severe.  38 C.F.R. §§ 4.56 (d), 4.73.  A noncompensable rating is warranted for slight muscle injury.  A 10 percent rating is warranted for moderate muscle injury.  A 20 percent rating is warranted for moderately severe or severe muscle injury. 

For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56 (c).

A slight disability of muscles comprises simple wound of muscle without debridement or infection.  Objective findings include 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).

A moderate muscle disability comprises a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.  Objective findings should include entrance and (if present) exit scars; small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance or impairment of muscle tonus; and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56 (d)(2).

A moderately severe muscle disability comprises a through-and-through or deep open penetrating wound by a small high-velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  There should be a history of hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements.  Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment.  38 C.F.R. § 4.56 (d)(3).

A severe muscle disability contemplates through-and-through or deep penetrating wounds 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.  There should be a history of hospitalization for a prolonged period for treatment of the wound, with consistent complaints 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.  Objective findings should include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function.  38 C.F.R. § 4.56 (d)(4).

Based on the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that his costochondritis symptomatology, to include intermittent substernal chest pain, fatigability, reduced strength, and tenderness to palpation necessitating extensive cardiopulmonary testing and interfering with employment, most nearly approximates a moderately severe disability of the thoracic muscle group, thus warranting a 20 percent rating, but no higher, for the entire appeal period.  

In this regard, the Veteran was afforded VA examinations in May 2010, January 2016, and April 2016, at which times he described experiencing intermittent aching substernal chest pain that caused him to feel tired.  The 2016 examiners noted the Veteran's costochondritis impacted his thoracic muscle group.  While the examiners did not note the presence of any scarring, muscle atrophy, or any signs of symptoms attributable to muscle injury, the Board finds the other lay and medical evidence establishes the Veteran has an extensive history of treatment for his reported chest pain and that said pain interfered with his ability to keep up at work.  Specifically, the Veteran's former private physician, Dr. J.W.L., submitted several letters in association with the Veteran's vocational rehabilitation claims noting the impact his chronic costochondritis had on his employment and the extensive medical testing the Veteran had undergone in attempts to identify his proper diagnosis and treatment plan.  See February 2006 letter noting Veteran was incapacitated from employment due to chest pain; September 2002 letter noting chest pain interfered with activities of normal living including breathing, walking, and working; and November 2002 letter noting extensive work-up and unemployability.  Additionally, the April 2016 examiner opined the Veteran's substernal chest pain would limit his ability to perform heaving lifting or repetitively use his upper body in the work place.  Thus, resolving all reasonable doubt in the Veteran's favor and with awareness that a moderately severe disability and a severe disability warrant the same rating under DC 5321, the Board finds the Veteran's costochondritis more nearly approximates a 20 percent rating under DC 5321, which is the maximum available rating under that code.  

Importantly, the Board notes that the May 2010 VA examiner found the Veteran to present with a normal back.  Moreover, the maximum rating under DC 5291 is 10 percent and is only warranted for symptoms approximating severe limitation of motion of the dorsal spine.  Thus, as the Veteran has consistently exhibited symptoms related to his thoracic muscle group and has been evaluated to have a normal back, the Board finds that the Veteran's costochondritis is most appropriately rated under DC 5321 for impairment of the thoracic muscle group rather than 5291 for limitation of motion of the dorsal spine.  See Butts, supra, Pernorio, supra.

The Board notes the Veteran has reported that doctors have suggested that the removal of a rib might alleviate his symptoms.  In order to warrant a rating in excess of 20 percent under DC 5297 related to removal of the ribs, the Veteran's symptoms would need to more nearly approximate the removal of three or more ribs.  38 C.F.R. § 4.73, DC 5297.  Notably, the Veteran himself has only reported suggestion of the removal of one or two ribs, not three.  Moreover, there is no documentation of any suggestion by any medical professional that the Veteran's costochondritis would be effectively treated by the removal of any ribs.  See June 2017 hearing testimony and 2016 examination reports.  Thus, the Board finds the disability is more accurately rated by analogy under the criteria related to muscle group disabilities. 

Notably, the Veteran has occasionally noted experiencing depression related to his rib disease, heart problems, and other difficulties he associates with his costochondritis.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  In this case, the Veteran has previously sought and been denied service connection for many of the disorders he has tangentially associated with his costochondritis.  Moreover, he has perfected an appeal as to one such issue as noted in the introduction.  More importantly, however, is the fact the Board has attributed all of the Veteran's signs and symptoms associated with chest pain to his service-connected costochondritis.  Thus, the Board finds that, to assign separate ratings would either vitiate finality of otherwise decided issues, constitute pyramiding under 38 C.F.R. § 4.14, or would interfere with the Veteran's pending claims; therefore, the Board declines to assign separate ratings.

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his costochondritis.  The Board also acknowledges that the Veteran, in advancing this appeal, believes that said disability has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report his observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.  Thus, his own assessments as to the severity of the symptoms and their relationship to the rating criteria are deemed less probative than the opinions of medical practitioners who have specialized knowledge and skill in excess of the Veteran.  

The Veteran has been an active participant in his appeal and has submitted vague statements that could be construed as challenging the validity of his examinations or any work performed by VA employees in general.  However, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties).  The presumption of regularity is only rebuttable by clear evidence to the contrary.  Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).  Here, the Veteran has not provided clear evidence to rebut the presumption of regularity.  Instead, he has voiced his general dissatisfaction with the appeals process and occasionally with VA generally, more specifically with the Vocational and Rehabilitation branch than with the benefits administration.  As he has not demonstrated that the VA examiners were unaware of any significant fact in his case or introduced any evidence that shows a lack of impartiality or incompetence, the Veteran has not met his burden to show that the VA examinations are inadequate and the Board finds his arguments in this regard to be unpersuasive.  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error).  

The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected costochondritis; however, the Board finds that his symptomatology has been stable throughout the appeal.  Therefore, assigning staged ratings is not warranted.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Ultimately, the Board finds that a 20 percent rating, but no higher, for costochondritis is warranted for the entire appeal period; however, the preponderance of the evidence is against a rating in excess of 20 percent.  Therefore, the benefit of the doubt doctrine is not applicable except as has been applied to the rating assigned herein, and the Veteran's claim for a higher rating is otherwise denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

IV.  Entitlement to a TDIU

During the appeal, the Veteran has reported that he is unable to maintain substantially gainful employment due to his service-connected disabilities, primarily his costochondritis.  Specifically, at the June 2017 Board hearing, he noted his service-connected foot disorder would not likely interfere with employment and neither would his service-connected pseudofolliculitis barbae as long as he was able to abstain from shaving.  Instead, he contends his costochondritis prevents employment due to limitations on his ability to perform physically demanding work.

The Board notes that entitlement to a TDIU was denied in a June 2016 rating decision and rather than issue a statement of the case as to that issue in response to the Veteran's notice of disagreement, the RO issued a supplemental statement of the case.  In this regard, it appears the RO recognized that the Veteran contends that his unemployability is due to his costochondritis, and the TDIU claim and appeal stems from his June 2009 claim for an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. 
§§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013).  

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice, supra.  Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

The Veteran is service-connected for pseudofolliculitis barbae, rated as 10 percent disabling, dermatitis of the feet, rated as 10 percent disabling, and costochondritis, rated as 20 percent disabling by virtue of this decision.  Thus, the Veteran's service-connected disabilities do not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16 (a).  Further, the Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16 (b) in the first instance.  However, if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities, the Board may refer the matter to the Director, Compensation Service, for consideration of entitlement to TDIU on an extra-schedular basis.  However, upon review of the evidence, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation.  

In a January 2016 Application for Increased Compensation Based on Unemployability, the Veteran noted he had an associate's degree with other training related to electronics and mechanics as well as a commercial driver's license.  The copious Vocational and Rehabilitation records also indicate the Veteran was at one point pursuing higher education through that program.  Turning to his work history, the evidence of record indicates that the Veteran last worked as part of the Vocational Rehabilitation program at a call center in 2011.  There is also evidence the Veteran has historically performed work as a diesel mechanic, volunteered for lengthy periods of time by providing transportation and assistance to persons with cerebral palsy, and performed ad hoc work for a temporary placement agency.  Notably, in records associated with his hypertension, the Veteran routinely noted performing mechanical work and performing "runs" for parts.  See November and December 2015 blood pressure diary.  

At the June 2017 Board hearing, the Veteran reported working as a driver for Uber.  Upon questioning, he also opined he would be able to work for 30-35 hours a week performing this work despite his service-connected disabilities and, if he was self-employed and able to choose his own hours, he would likely work 40 hours a week.  

While the record indicates the Veteran had pronounced difficulty finding employment through the Vocational Rehabilitation program, such does not appear to be related to his service-connected disabilities.  In this regard, in 2010, the Veteran deferred placement and evaluation due to scheduling problems.  In 2008 he declined evaluation, stating that his 10 year volunteer history proved his ability to sustain employment.  Additionally, in 2010, the Veteran appeared for some form of vocational training or assessment and was asked to leave due to his behavior and comportment with the secretary and security guard who greeted him.  At one point, the Veteran declined to take a placement because he felt the work was beneath him and violated labor laws.  Most recently, in 2016, the Veteran requested information regarding Vocational Rehabilitation assistance with self-employment, but ultimately determined he would prefer to seek a TDIU rating.

Notably, an April 2016 VA examiner opined the Veteran's costochondritis would impact his ability to perform strenuous work, and, as noted above, his private physician opined in the early 2000s that his chest pain would prevent employment.  Additionally, another private physician, Dr. B.P., opined in August 2008 that the Veteran would not be capable of lifting 60 pounds or kneeling, but she did not attribute this exclusively to his costochondritis.  

Importantly, the question of employability is ultimately a legal one, not a medical one.  Additionally, while the Veteran's private clinicians found he would be severely limited in employment opportunities due to his costochondritis, the Veteran's own reports at the Board hearing indicate he is in fact capable of employment and the April 2016 VA examiner opined that his costochondritis symptoms would only cause interference with his ability to perform heavy lifting or perform repetitive upper body movements.  Furthermore, the Board observes that, while the Veteran may have difficulty performing physical labor due to his costochondritis, his treatment records indicate he has maintained an impressive level of physical activity and frequently works out and plays basketball.  Additionally, the record indicates that, to the extent the Veteran was occasionally unemployed during the appeal period, there is evidence to suggest that such was related to his nonservice-connected disabilities and other employment impairments.  In this regard, in an undated Vocational Rehabilitation report it was noted his many nonservice-connected issues were a barrier to employment, to include his psychiatric disorder, his age, his poor work history, his educational deficits, his lack of support, his debt with associated transportation and housing concerns, as well as his felony conviction.

Based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation.  In this regard, while he does have some limitations associated with such disabilities, to include the need to limit his lifting and repetitive motion of the upper body, and could potentially be awarded service connection for CAD and HTN based on his pending appeal, such limitations alone are not of sufficient severity to produce unemployability.  To the contrary, the available evidence shows the Veteran has been able to work and his own reports are that he could work even more than he currently does with a flexible schedule.  

In sum, while the Veteran's private physicians and the April 2016 VA examiner observed limitations that impacted the Veteran's ability to work, the cumulative evidence of record indicates that his service-connected disabilities alone were not of sufficient severity to produce unemployability.  As such, a TDIU is not warranted.  See 38 C.F.R. § 4.16.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for a TDIU rating must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

There is no CUE in the June 2003 rating decision that granted service connection for costochondritis effective December 20, 2001; the appeal is denied.

A 20 percent rating, but no higher, for costochondritis is granted, subject to the laws and regulations governing the payment of monetary awards.

A TDIU is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs