Citation Nr: 18144357 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-34 929 DATE: October 25, 2018 ORDER A 10 percent disability rating, but not higher, for chronic costochondritis is granted for the entire appellate period. FINDING OF FACT The Veteran’s chronic costochondritis causes no more than moderate muscle impairment productive primarily of pain, weakness, and fatigue. CONCLUSION OF LAW For the entirety of the appellate period, the criteria for a 10 percent disability rating, but no higher, for chronic costochondritis, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.56, 4.73, Diagnostic Codes (DC) 5297, 5321 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from December 1985 to December 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated May 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Entitlement to a compensable disability rating for the period from January 31, 2014 for chronic costochondritis. Increased Ratings Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes (DC or DCs), is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The assignment of a particular DC is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the Diagnostic Code, and the demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, the evidence does not establish that staged ratings are warranted. When evaluating musculoskeletal disabilities under schedular criteria, the Board may consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis In its May 2014 rating decision, the RO continued the Veteran’s noncompensable rating for chronic costochondritis on the basis that Diagnostic Code 5297 does not provide for a compensable rating unless one rib has been removed or two or more ribs have been resected without regeneration. See Rating Decision dated May 14, 2014 at pg. 2; 38 C.F.R. § 4.71a, Diagnostic Code 5297. Nevertheless, in its May 2016 Statement of the Case, the RO considered Diagnostic Code 5321, which pertains to a muscle injury to Group XXI, the muscles of respiration. 38 C.F.R. § 4.71a, Diagnostic Codes 5297, 5321. As such, the Board’s analysis will discuss evaluation under both diagnostic codes. Costochondritis is not listed in the rating schedule. Where a particular 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 area and symptomatology, are closely analogous. 38 C.F.R. §§ 4.20, 4.27 (2017); Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992). Here, because there is no specific diagnostic code for costochondritis, the Veteran’s condition was initially rated by analogy under Diagnostic Code 5297, which governs rib removal. Costochondritis is an inflammation of the cartilage that connects the ribs to the breastbone (i.e., the costochondral joints). See MedlinePlus, U.S. National Library of Medicine. Accordingly, costochondritis may be rated as a musculoskeletal disability under 38 C.F.R. § 4.71a, or alternatively as a muscle disability under 38 C.F.R. § 4.73. Diagnostic Code 5297, under which the Veteran is currently rated, states that removal of one rib or resection of two or more ribs without regeneration warrants a 10 percent disability rating. A 20 percent rating requires removal of two ribs. Removal of three or four ribs warrants a 30 percent rating. A 40 percent rating is assigned for removal of five or six ribs. Removal of more than six ribs warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5297. The Veteran’s condition could also be rated by analogy as an injury to Muscle Group XXI, the muscles of respiration of the thoracic muscle group. 38 C.F.R. § 4.73, DC 5321. Under that code, a slight injury warrants a noncompensable evaluation; a moderate injury warrants a 10 percent rating; a moderately severe or severe injury warrants a 20 percent rating. Id. Under Diagnostic Code 5321, thoracic muscle group XXI, a noncompensable (zero percent) disability rating is assigned for slight muscle disability, a 10 percent rating is assigned for moderate disability, a 20 percent rating is assigned for a moderately severe or severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5321. The factors for determining whether muscle disability is slight, moderate, or severe are particular to the evaluation of healed wounds, such as those from gunshots or other missiles. 38 C.F.R. §§ 4.55, 4.56. 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 is defined as a simple wound of muscle without debridement or infection. Service treatment records (STRs) will show a superficial wound with brief treatment and return to duty healing with good functional results and no cardinal signs or symptoms of muscle disability. There will be minimal scarring and no evidence of facial defect, atrophy, or impaired tonus. Also, no impairment of function or retained metallic fragments retained will be present. 38 C.F.R. § 4.56(d)(1). A moderate disability of muscles is defined as 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 will include entrance and (if present) exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone 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 disability of muscles is defined as a through and through or deep penetrating wound by small high velocity missile or large low- velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. Service department records should show hospitalization for a prolonged period for treatment of wound. Objective findings will include entrance and (if present) exit scars indicating track of missile through one or more muscle groups along with indications on palpation of exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of the muscles is defined as 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, sloughing of soft parts, and intramuscular binding and scarring. Objective findings will include 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). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). Turning to the evidence, an April 2014 VA examination reflects that the Veteran reported constant, aching localized pain in his chest wall described as being an eight on a scale of 10. He said the pain was exacerbated by physical activity and stress, and there was nothing that relieved the pain, although massage helped. Although the Veteran reported no overall functional impairment from the disability, he also reported experiencing flare-ups as often as 24 times per day, which resulted in functional impairment and impacted arm movements, lifting and pushing. He said the flare-ups were precipitated by physical activity, and lasting for an hour. He described the pain during flare-us as being an eight on a scale of 10. He noted that nothing really relieved the pain, but massage helped. The Veteran stated that he can function without medication. He also reported experiencing stiffness, weakness, giving way, and redness. The Veteran denied being hospitalized and surgery for his disability. The examiner noted that the Veteran’s previous diagnosis of costochondritis remained unchanged and the condition was active. On examination, the Veteran’s ribs were tender to palpation of the left chest wall adjacent to the second through sixth left ribs. The examiner noted that x-rays of the Veteran’s ribs revealed that the ribs were within normal limits. The examiner concluded that the Veteran’s disability does not impact his usual occupation or activities of daily living. VA treatment records dated June 2014 reflect that the Veteran had normal range of motion in all joints, he experienced mild tenderness of the left chest wall when raising his left arm and with palpation. The impression was left chest chronic pain. See VA initial evaluation note dated June 30, 2014. The Veteran underwent VA examination in February 2016. The Veteran denied using assistive devices as a normal or occasional mode of locomotion. The Veteran reported that his chest pain is constant, with pain radiating down his left arm. He is unable to hold his arm up for long periods of time. The pain is on both sides of his chest. Because of his chest pain, the Veteran stated he is unable to sleep on his side to accommodate his sleep apnea, which results in lack of sleep and stress. He stated that his chest pain made him feel depressed and angry. On examination, the Veteran’s chest wall was tender on palpation. The examiner noted that the Veteran’s previous diagnosis of costochondritis remained unchanged and the condition was active. The examiner reported that the Veteran has a non-penetrating injury of the thoracic muscle group, bilaterally (Group XXI), and that the injury does not affect muscle substance or function. The examiner noted that the Veteran was negative for injury to other muscle groups, i.e. the shoulder girdle or arm, the forearm or hand, foot or leg, and pelvic girdle or thigh. The Veteran was negative for muscle atrophy, scars and fascial defects associated with his muscle injury. All muscle strength testing was normal. The examiner indicated that the Veteran is negative for cardinal signs and symptoms of muscle disability such as pain, weakness, loss of power, fatigue, uncertainty of movement, and impaired coordination. X-rays of the left and right ribs were negative for fractures or other significant bone or soft tissue abnormality or complications. The examiner concluded that the Veteran’s muscle injuries do not impact his ability to work. In his July 2016 substantive appeal, the Veteran stated that he experiences chest pain in the morning he described as four or five on a scale of ten, increasing to nine or ten as the day goes on. He said the pain causes him to toss and turn at night, which interferes with his sleep and increases stress and anger. He stated that he experiences left-side pain during intimacy with his wife as well as anxiety about performance. He noted that he always tries to stretch the left side of his chest, he’s unable to hold his left arm up while jogging, he avoids using his left arm when lifting, and he is always protecting the painful area. He added that when he is in a crowd he has anxiety about a physical confrontation because his upper body is weak. As noted above, although the Veteran’s costochondritis is currently assigned under Diagnostic Code 5927, the May 2016 Statement of the Case (SOC) indicates that the condition was evaluated under the criteria for Diagnostic Code 5321 for a Group XXI muscle injury. See SOC dated May 26, 2016 at pg. 14. The Board finds that the Veteran’s costochondritis is most appropriately rated by analogy under Diagnostic Code 5321. In evaluating this claim, the Board initially notes that, because the Veteran’s disability is assigned by analogy to a muscle injury, the exact characteristics of a muscle injury, as described in the rating criteria (i.e., penetrating wounds) are not adequate descriptors of the Veteran’s overall disability picture. Nevertheless, the Board is mindful of 38 C.F.R. § 4.40, which states that, with respect to disabilities of the musculoskeletal system, “functional loss... may be due to pain.” DeLuca, supra. Additionally, the February 2016 VA examiner’s observation that the Veteran had no cardinal signs and symptoms of muscle disability is contradicted by the Veteran’s lay statements of record, including statements noted by the February 2016 examiner. The Board notes that the Veteran is competent to report an observable symptom such as pain. Layno, supra. In this context, the Board notes that, while no associated bone or joint abnormalities have been identified as related to the Veteran’s chronic costochondritis, the evidence reflects that during the period on appeal he has consistently complained of pain, weakness, and fatigue, which are cardinal signs and symptoms of muscle disability, and these symptoms are worsened with movement. He further indicated that he awakens with pain, and he experiences flare-ups that result in functional impairment. Given the consistent complaints of pain, weakness, and fatigue, and after resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s service-connected disability has more nearly approximated a moderate disability throughout the pendency of this appeal. Accordingly, a 10 percent rating is warranted under DC 5321. The Board has considered whether a rating in excess of 10 percent is warranted under DC 5321; however, the evidence does not show symptoms that are consistent with a moderately severe or severe impairment, including prolonged treatment or hospitalization during service or evidence of impaired respiratory function or decreased strength and endurance in the upper extremities. In this regard, the Board notes the Veteran has consistently reported pain and fatigue with his condition, but has not asserted that he experiences loss of muscle power as a result of his costochondritis. Notably, during the February 2016 VA examination, the Veteran’s muscle strength tested normal. A complete review of the lay and medical evidence of record shows that his costochondritis is manifested by aching pain that impairs his ability to perform certain movements, when present, as opposed to loss of muscle power or strength, or other functional loss in the costochondral junctions or upper extremities. Therefore, the Board finds that the Veteran’s costochondritis is moderate, at best, and warrants no more than a 10 percent rating under DC 5321. The Board also considered whether a rating in excess of 10 percent is warranted under other potentially applicable diagnostic codes. As noted above, costochondritis involves the rib and its cartilage. See MedlinePlus, supra. As a result, the Veteran’s costochondritis has previously been rated under DC 5297, for removal of the ribs; however, the evidence of record does not show that the Veteran has ever had a rib removed or resected, meaning that he would not meet the criteria for even a 10 percent rating, much less a 20 percent rating under DC 5297, which requires the removal of at least two ribs. The Board finds that these criteria are not analogous to the Veteran’s primary symptom of chronic pain. The Board also considered the application of Diagnostic Codes 5003 and 5019 for arthritis or bursitis, respectively; however, there is no evidence of arthritis or bursitis in the Veteran’s treatment records, and in any event those disabilities are evaluated based upon limitation of motion of the affected parts. The evidence does not show that the Veteran experiences limitation of motion in any affected area, including his chest and upper extremities, that is related to his costochondritis. Thus, the Board finds that DCs 5003 and 5019 do not assist the Veteran in obtaining a rating higher than 10 percent with respect to his costochondritis. Finally, the Board finds there is no basis for staged rating of the Veteran’s costochondritis pursuant to Hart, as the lay and medical evidence shows the Veteran’s costochondritis has been consistently manifested by symptoms that more nearly approximate a 10 percent rating throughout the appeal period. Accordingly, resolving any doubt in the Veteran’s favor, the Board finds that a disability rating of 10 percent, but no higher, for chronic costochondritis is warranted for the entire period on appeal, commencing January 31, 2014, the date of claim for increase. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel