Citation Nr: 18123797 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 15-21 212 DATE: August 3, 2018 ORDER Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for the Veteran’s chronic rib separation left 5th, 6th ribs disability is granted for the entire appeal period. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s chronic rib separation left 5th, 6th ribs manifests moderately severe or severe symptoms of chest pain. CONCLUSION OF LAW The criteria for a 20 percent rating, but not higher, for chronic rib separation left 5th, 6th ribs are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Codes 5321. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1989 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran presented sworn testimony at a hearing before the undersigned in May 2018. The Board observes that during his May 2018 hearing, the Veteran raised the issue of entitlement to service connection for a psychiatric condition and heart condition, secondary to his service connected rib condition. After that hearing, in May 2018, the Veteran submitted a claim for service connection for a heart condition and back condition as secondary to his service connected rib condition. In June 2018, the Veteran failed to report for his VA examination associated with his heart claim. Consequently, a July 2018 rating decision denied the heart condition claim. Regarding the psychiatric condition, a May 2015 rating decision denied direct service connection for PTSD. The Veteran did not appeal that decision. With regards to a secondary service connection theory of entitlement, the Veteran and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155. If the Veteran would like to pursue any additional claims, such as a request to reopen the previously denied claim, he should do so pursuant to these new requirements. Additionally, the Board notes that the Veteran was initially denied a TDIU in a May 2015 rating decision. The Veteran did not appeal that decision. Nonetheless, the Board observes that a claim for a TDIU was again raised at the May 2018 hearing, when the Veteran testified that his service-connected rib condition prevents him from working. See May 2018 Hearing Transcript at 7. The Board takes jurisdiction of the issue of entitlement to a TDIU as it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to a rating in excess of 10 percent for chronic rib separation left 5th, 6th ribs. The Veteran asserts that his rib disability has increased in severity. See May 2018 Hearing Transcript. Applicable laws and regulations Disability evaluations are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. .38 C.F.R. § 4.20. Chronic Rib Disability After review of the evidence, the Board finds the criteria for a rating of 20 percent, the maximum, for chronic rib separation left 5th, 6th ribs have been met. See 38 C.F.R. §§ 4.71a, 4.73, DC 5321. The Veteran’s rib disability has been evaluated pursuant to the range of diagnostic codes most analogous to his current disability. See 38 C.F.R. § 4.73, DC 5321 (Group XXI. Muscles of respiration: Thoracic muscle group). An unlisted disorder may be rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. See 38 C.F.R. § 4.20. Conjectural analogies must be avoided, as is the use of analogous ratings for conditions of doubtful diagnosis, or those not fully supported by clinical and laboratory findings. The Veteran’s malformed right rib, status post fracture disability is currently rated under DC 5321, and thus, is rated by analogy under the criteria for thoracic muscle disabilities. See 38 C.F.R. §§ 4.20, 4.27. The Board has considered other diagnostic codes, but has not found codes more analogous or more applicable to the Veteran’s present disability. For VA rating purposes, the cardinal signs and symptoms of such a muscle disability are a loss of power, weakness, a lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). Federal regulations classify these muscle injuries as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d). Diagnostic Code 5321 (Group XXI. Muscles of Respiration: Thoracic muscle group) provides a 0 percent evaluation for slight symptoms; a 10 percent evaluation for moderate symptoms; and a 20 percent evaluation for either moderately severe or severe level symptoms. 38 C.F.R. § 4.73. The February 2013 VA examiner indicated that there had been no interval changes in the Veteran’s chronic rib separation condition since his previous July 2010 VA examination and did not repeat and examination at that time. At the August 2014 VA examination, the Veteran reported that his rib injury causes him pain so severe that it results in him missing work for 1 to several days. The examiner noted that certain movements cause the Veteran severe pain of his 1 thorax for a few minutes and he has chronic mild discomfort requiring medication. At the May 2016 VA examination, the Veteran reported a history of injury to his ribs in service when he was playing football during active duty and was “speared” in the back by the helmet of an opposing player at high velocity. He sustained multiple contusions and muscle strain and “displaced” multiple ribs on his left side. The VA examiner noted, the Veteran has injury to his thoracic muscle group. The Veteran indicated he feel pain “like needles in his left chest with a numbing feeling up under my arm” which is worse when he moves his left arm. The VA examiner opined that because the Veteran cannot easily move his left arm without this movement causing pain in the left chest wall, this makes it difficult for the Veteran to maintain regular employment. Additionally, at the May 2018 Board hearing, the Veteran competently and credibly testified the symptoms of his rib condition are so severe that he has not been able to carry his children, including his one-year old child. The Veteran reported that walking too far, sitting to long, any type of bending, standing or carrying anything too long, puts pressure on his rib cage and heart, making it difficult to breathe, and causes cramps into his ribs. The Veteran explained that when he experienced the rib injury, it trapped part of the muscles in between the ribs and it is laying on his heart. He further explained that when he has a muscle spasm or cramp or has any issue with that muscle, it sends it straight to his heart and he feels everything. He reported being unable to take deep breath. The evidence overwhelmingly shows that the Veteran has experienced severe or moderately severe pain in the thoracic muscle area. Objective examinations as well as the Veteran’s subjective statements have showed pain so severe that a 20 percent evaluation, for chronic rib separation left 5th, 6th ribs have been met throughout the appeal period. See 38 C.F.R. § 4.73, DC 5321. The Board notes that a 20 percent evaluation is the maximum evaluation available under Diagnostic Code 5321. Entitlement to a TDIU is remanded. Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran’s claim for a TDIU. The Veteran asserts that he is unable to work due to his service-connected disability. See May 2018 Hearing Transcript. The Board finds that further development is needed to ascertain the Veteran’s current level of education, special training, and previous work experience, as such is unclear and central to his claim because he has not completed and filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), which is necessary for VA to adjudicate this issue. Additionally, the Veteran does not currently meet the schedular criteria for the assignment of a TDIU set forth in 38 C.F.R. § 4.16 (a). The AMC/RO should consider whether the claim for TDIU should be submitted to the Director of the Compensation and Pension. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, the matter is REMANDED for the following action: 1. Give the Veteran an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. The Veteran should also be notified that under 38 C.F.R. § 3.158 (a) (2016) his claim for a TDIU will be considered abandoned if he fails to cooperate by providing the completed VA Form 21-8940. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature and severity of his chronic rib disability and its impact on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel