Citation Nr: 19153370 Decision Date: 07/10/19 Archive Date: 07/10/19 DOCKET NO. 07-18 249 DATE: July 10, 2019 ORDER Entitlement to an initial 20 percent rating for costochondritis associated with a residual scar, status post right lower lobe segmentectomy, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The record evidence shows that the Veteran’s service-connected costochondritis is manifested by muscle pain, cramps, and spasms that resulted in moderately severe or severe impairment to muscle group XXI throughout the appeal period. CONCLUSION OF LAW The criteria for an initial 20 percent rating for costochondritis associated with a residual scar, status post right lower lobe segmentectomy, have been met throughout the appeal period. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.55, 4.56, 4.73, 4.114, Diagnostic Code (DC) 5321 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision in which the Agency of Original Jurisdiction (AOJ) granted service connection for costochondritis and assigned a 10 percent rating effective March 7, 2005. A videoconference Board hearing was held in December 2009 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. In an August 2011 rating decision, the AOJ assigned a higher initial 20 percent rating effective December 1, 2010, for costochondritis. The Board remanded the appeal for further development in November 2010, July 2012, November 2015, April 2017, and in July 2018. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Increased Rating for Costochondritis The Veteran contends that his service-connected costochondritis is more disabling than currently (and initially) evaluated. Neither the Veteran nor his representative has raised any other issues nor have any other issues with respect to increased ratings been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). Laws and Regulations Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two 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 lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged ratings” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. The Veteran’s costochondritis currently is rated under 38 C.F.R. § 4.114, DC 5399-5321. See 38 C.F.R. § 4.114, DC 5399-5321 (2018). DC 5321 is for rating function of muscles of respiration in the thoracic muscle group. Because the evidence in this appeal does not show that the Veteran has limitation of motion in his arm in terms of degrees or at least incomplete paralysis of the upper radicular group, the Board finds that a rating by analogy under DC 5321 is appropriate. Id. Under DC 5321, a slight injury warrants a noncompensable rating. A moderate injury warrants a 10 percent rating. A moderately severe or severe injury warrants a maximum 20 percent rating. Id. Factors for consideration in the rating of muscle disabilities are set forth in 38 C.F.R. §§ 4.55 and 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). The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1). A history regarding this type of injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. Id. The type of injury associated with a moderate muscle disability is 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. 38 C.F.R. § 4.56(d)(2). A history regarding this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints 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. Id. Objective findings should include entrance and (if present) exit scars, small or linear, indicating 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. Id. The type of injury associated with a moderately severe muscle disability is 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. 38 C.F.R. § 4.56(d)(3). A history regarding this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Id. Objective findings should include entrance and (if present) exit scars indicating the track of the 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 the sound side. Id. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. Id. The type of injury associated with a severe disability of muscles is 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. 38 C.F.R. § 4.56(d)(4) (2018). A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, 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. Id. Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Id. Analysis The Veteran contends that a higher initial rating is warranted for his service-connected costochondritis because he experiences severe muscle pain, cramps, numbness, and spasms throughout the appeal period. He also contends that his severe muscle pain, cramps, numbness, and spasms are worsened by lifting more than 30-40 pounds or repetitive motion of his arms which also causes him to experience fatigue, pain, tiredness, and limitation of motion. See July 2005 VA Form 21-4138, June 2007 VA Form 9, December 2009 Board Hearing Transcript at 4-8. VA treatment records throughout the appeal period note the Veteran’s complaints of chest pain and cramps. See March 2007 through February 2018 VA treatment records. During a February 2007 VA examination, the Veteran reported worsening muscle pain in his chest muscle pain that is intermittent and almost daily pain associated with spasms over his chest scar. He reported precipitating factors of lifting, pulling, and pushing. He denied range of motion problems in the bilateral upper extremities, but stated he has right arm pain that radiates to his lower back and sharp pain and numbness over anterior chest wall. The Veteran denied shortness of breath, dyspnea on exertion, and noted flare-ups do not interfere with his activities of daily life. In March 2007, the Veteran was afforded a VA examination. He reported painful chest muscles and numbness over the anterior chest well. The Veteran was afforded another VA examination in September 2007. He reported shortness of breath with exercise, muscle cramps at the surgical site in his back with bending over and lifting, pain in his side and back when adducting his right arm with stress such as pulling a door open, and sharp transient pain three times a day. The examiner found no weakness, fatigue, instability, or shortness of breath and noted the Veteran’s quick ambulation down the hall of the clinic. The Veteran was afforded a VA examination in October 2008. He reported muscle soreness; lifting and reaching causing pain at times; and heavy physical work causing muscle cramping for a few seconds. The examiner noted the right 8th intercostal muscle involved with a “through and through wound”. Examination revealed pain and no tissue loss, decreased coordination, fatigability, weakness, uncertainty of movement, or flare-ups. Normal muscle strength and muscle function in terms of comfort, endurance, strength was indicated. No nerve damage; no tendon damage; no bone damage; no muscle herniation; no loss of deep fascia or muscle substance; no limitation of motion by muscle injury; and no limitation of motion with repetitive use were indicated. The examiner noted that pain affected his activities of daily living and the Veteran reported being unemployed due to no longer being able to hang wallpaper because of pain. The Veteran also complained of sharp pains in the scar area with heavy lifting and pulling and numbness from the anterior end of his chest scar to the costochondral area of the 8th rib. In a November 2009 private treatment note, Dr. B. M. noted the Veteran experiences cramps and pain when using his right arm and engaging intercoastal and back muscles to perform physical tasks. He also stated that when the Veteran engaged rhomboids and latissimus dorsi muscles on the right side, there was muscle fasciculation and cramping and that he likely has nerve and muscle damage. The Veteran was afforded a VA examination in December 2010. He reported right shoulder pain that progressively worsened and has become more severe with the use of his right arm for lifting things, bending, twisting. The examiner noted his pain appeared to be associated with right thorax back pain. The Veteran was afforded another VA examination in November 2013. The examiner diagnosed the Veteran with chest muscle impairment on his right side. The examiner endorsed a non-penetrating muscle injury in thoracic muscle group. Palpation shows loss of deep fascia and cardinal signs and symptoms of muscle disability were noted as lowered threshold of fatigue and fatigue pain as consistent on the right side. Examination reveals normal muscle strength, no muscle atrophy, and a well healed 22 x 0.5 cm scar on the posterior right side of the chest that was well healed, very deep, and tender to touch. No assistive devices were noted as being used and the examiner noted the Veteran’s ability to work is impacted in that he has limitations with strenuous activities to prevent increased respiratory rate due to existing condition of chest muscle impairment. The examiner noted he can entertain light physical and/or sedentary employment. The Veteran’s arm strength was found to be normal. The Veteran reported pain radiating from the surgical site to his arm that causes difficulty lifting. The examiner noted decreased light touch and pin prick in the anterior lower rib cage area. Most recently, the Veteran was afforded a muscle injuries VA examination in February 2018. He reported severe cramping and pain that makes breathing more and more difficult with his bronchitis and asthma. The examiner diagnosed him with costochondritis and trauma complex injury to thoracic group II and intercostal muscles and associated soft tissues and fascia on the right side. The examiner endorsed shoulder injury group II and thoracic muscle group XXI as being affected on both sides. The examiner noted an associated scar; some loss of deep fascia; palpation shows loss of deep fascia; respiration and right arm motion results in pain; excessive proximal rib motion; muscle spasms; abnormal motion of associated fascia and soft tissue; some impairment of muscle tonus; some loss of muscle substance; soft flabby muscles in wound areal and muscles swelling and hardening in abnormality contraction. Cardinal signs and symptoms of muscle disability included fatigue-pain and impairment of coordination on the right side. Muscle strength was normal, and no muscle atrophy was indicated. No assistive devices were noted as being used and the Veteran’s ability to work is impacted in that he has disturbance of bending, raising right arm, and lifting more than 20-30 pounds. The examiner also noted that he has daily disturbance of the continuity of the work day with exertion, deep breaths, sneezing or coughing. Notably, the examiner highlighted the new diagnosis of thoracotomy with large incision in the lateral posterius thorax and which involves intercostal space and intercostal nerve, upper and lower rib, and costochondral vertebral joints, that which he indicated has been present since 2003. To this end, the examiner noted there is visible abnormal spasm in the incision area with deep breaths and motion of the right arm; palpable pain; muscle and facial defect; and painful crepitus with the breathing and arm motion. The examiner also was afforded a VA peripheral nerves examination in February 2018. The Veteran reported severe cramping and pain in his right upper back and the examiner diagnosed the Veteran with traumatic neuritis in the right chest intercostal nerves since 2003. The examiner noted symptoms include post-operative intercostal nerve damage causing pain, cramping, severe muscle spasms, and abnormal proximal rib motion. No other neurologic symptoms or other nerve groups were endorsed. Muscle strength, reflex, and sensory testing were normal, and no muscle atrophy or tropic changes were found. The Veteran’s ability to work was noted as impacted due to disturbance of reaching, raising the arm, lifting, carrying, driving, pushing and pulling. The examiner found that muscle injury to the right thorax groups XXI and II is moderately severe. Finally, the examiner noted that the thoracotomy resulted in significant trauma to the chest wall and resulted in muscle fascia, nerve, and skin problems. The degree of trauma often results in the at least moderate if not severe pain, dysesthesia, and dysfunction as seen in this Veteran’s case. Additionally, the examiner indicated that the disruption in the anatomy of the area of the incision also creates scarring, adhesion, and disfigurement which results in dysfunctional motion. He also noted that twisting, turning, or bending of the thorax, deep breathing including coughing or sneezing, and motion in the right arm causes tension and forces on the incision area creating moderate, sometimes severe, abrupt pain, and/or spasm due to the trauma associated nerve and muscle, and that spontaneous severe pain or spasm may occur abruptly without provocation. Having reviewed the record evidence, the Board finds that it supports assigning an initial 20 percent rating for costochondritis associated with a residual scar, status post right lower lobe segmentectomy, throughout the appeal period. See 38 C.F.R. § 4.114, DC 5399-5321 (2018). The Veteran has reported credibly that he experiences severe muscle pain, cramps, numbness, spasms, fatigue-pain, and tiredness throughout the entire appeal period which approximates the criteria for moderately severe or severe impairment of the thoracic muscle group. Moreover, although VA examination results did not reveal cardinal signs and muscle disability symptoms characteristic of the applicable criteria until November 2013, the February 2018 VA examiner noted diagnoses of costochondritis and trauma complex injury to thoracic group II and intercostal muscles and associated soft tissues and fascia on the right side and traumatic neuritis in the right chest intercostal nerves have been present since 2003 and indication of nerve damage and a “through-and-through wound” have been present throughout the appeal period. The Board notes that the Veteran is already in receipt of two separate ratings for his service-connected residuals scars from his right lower lobe segmentectomy at 10 percent each from January 10, 2003 and a separate rating for his shoulder girdle associated with his residuals scars his right lower lobe segmentectomy rated as 20 percent disabling from December 1, 2010, and 40 percent disabling from February 7, 2018. The Board finds that any symptomatology already attributed to these service-connected disabilities cannot be considered in adjudicating the Veteran’s currently appealed claim as such constitutes pyramiding. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the criteria for an initial 20 percent rating for costochondritis associated with a residual scar, status post right lower lobe segmentectomy, have been met throughout the appeal period. See also 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran asserts that he is unemployable solely as a result of his service-connected disabilities. Having reviewed the record evidence, and although the Board is reluctant to contribute to “the hamster-wheel reputation of Veterans law” by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands “perpetuate the hamster-wheel reputation of Veterans law”). In April 2016, the Veteran reported that he needed to reschedule a VA examination because of his job. This conflicts with information on his December 2010 VA Form 21-8940 which indicated he last worked in June 2009. Thus, the Board finds that, on remand, the AOJ should attempt to obtain information regarding the nature of the Veteran’s current employment. The matter is REMANDED for the following action: 1. Request that the Veteran complete and return an updated VA Form 21-8940 with information regarding his current employment status. 2. Readjudicate the appeal. MICHAEL T OSBORNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.