Citation Nr: 18138293 Decision Date: 09/26/18 Archive Date: 09/25/18 DOCKET NO. 15-37 151 DATE: September 26, 2018 ORDER Whether new and material evidence has been received to reopen a claim for service connection for a chest disability, to include costochondritis, as secondary to service-connected cervical spine disability, is granted. Entitlement to a rating of 40 percent for a thoracolumbar spine disability, but no higher, is granted. REMANDED Entitlement to service connection for a chest disability, to include costochondritis, as secondary to service-connected cervical spine disability is remanded. FINDINGS OF FACT 1. An unappealed April 2007 rating decision denied a claim to reopen a claim for service connection for a chest disability, including chest pains and breathing problems. 2. Evidence received since the April 2007 decision was not of record at that time; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. 3. The Veteran’s thoracolumbar spine disability has been manifested by forward flexion of 30 degrees or less; it has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for a chest disability is final. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received since the April 2007 decision; the claim for service connection for a chest disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for a rating of 40 percent, but no higher, for a thoracolumbar spine disability is granted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to March 1990. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the Veteran has a 100 percent combined disability rating and receives special monthly compensation.   Legal Criteria and Analysis 1. New and material evidence has been received since the April 2007 decision; the claim for service connection for a chest disability is reopened. Pursuant to 38 U.S.C. § 5108 (2012) and 38 C.F.R. § 3.156 (2017), and in light of the “low threshold” espoused in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Board finds that the competent medical evidence received since the last final denial in April 2007 constitutes new and material evidence sufficient to reopen the Veteran’s claim. At that time, the RO denied reopening the claim due to an insufficient diagnosis and for lack of nexus evidence. Since then, however, competent medical evidence pertaining to a diagnosis of costochondritis has been added to the claims file. Therefore, the Board finds that new and material evidence has been received sufficient to reopen the Veteran’s claim. 2. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability Where a veteran is seeking an increased rating for a disability one year or more after the grant of entitlement to service connection, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The present level of disability will be judged from the time period one year before the increased rating claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). At the same time, each disability will be viewed in relation to its history. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran’s disability was different at distinct times, will also be considered. See Hart, 21 Vet. App. at 510. VA assigns a percentage rating for a disability by comparing a veteran’s disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran’s symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the Veteran’s condition, the law, and medical knowledge. See id. § 4.1. For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must also consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Additional reference to the Veteran’s disabilities are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Here, the Veteran is currently rated at 20 percent under DC 5242. A higher rating of 40 percent requires forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. The Board finds that the preponderance of the competent medical evidence shows a higher rating of 40 percent is warranted. Pursuant to the July 2015 VA examination report, forward flexion of the thoracolumbar spine was limited to 10 degrees and the Veteran could not engage in repetitive use testing due to severe pain. Earlier, the July 2014 VA examination report shows forward flexion of 30 degrees on repetitive use testing and during flare-ups or pain on use there is an additional range of motion loss of five degrees in all planes, which would result in 25 degrees of flexion. Accordingly, the Board concludes that an increased rating of 40 percent is warranted and notes that a 40 percent rating is the maximum rating based on limitation of motion. At the same time, a 50 percent rating is not warranted because the preponderance of the competent medical evidence does not show that the Veteran has ankylosis. Accordingly, a 50 percent rating is not warranted.   REASONS FOR REMAND 1. Entitlement to service connection for a chest disability, to include costochondritis, as secondary to service-connected cervical spine disability In August 2014, the Veteran’s private physician, Dr. P.S., concluded that the Veteran’s chest pain “is non-cardiac in nature” and suggested a secondary link between his chest condition and his cervical spine disability. Dr. G. H. diagnosed the Veteran’s chest pain as costochondritis. The opinion of Dr. P.S. is too speculative to support a grant of benefits, but a VA medical opinion is necessary to address whether the Veteran’s costochondritis is related to his service-connected cervical spine disorder. Further, as the AOJ did not reopen the claim, it must be returned to the AOJ for adjudication on the merits. The matter is REMANDED for the following action: 1. The AOJ should associate with the claims file any outstanding treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the virtual file). 2. A medical opinion should be opinion regarding the etiology of the Veteran's costochondritis. An examination should only be performed if the medical professional providing the opinion finds one is necessary. The opinion provider must review the Veteran's claims file, and based on such review (and, if necessary, examination of the Veteran), provide an opinion responding to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's costochondritis has been caused by his service-connected cervical spine disorder? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's costochondritis has been aggravated (i.e. worsened in degree of severity) by his service-connected cervical spine disorder? Please be sure to separately and specifically address the questions of causation and aggravation. If the opinion is to the effect that the service-connected psychiatric disorder aggravated (but did not cause) the Veteran's hypertension, please identify, to the extent possible, the degree of additional disability (pathology/impairment) resulting from such aggravation, indicating the "baseline" severity of such disability prior to any aggravation by a service-connected disability and the level of severity existing after the aggravation occurred. A complete rationale for all opinions rendered must be provided. If an opinion cannot be provided without resorting to speculation, the medical professional must   explain why this is so and must identify what additional information, if any, would be required to provide an opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel