Citation Nr: 21004324 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-37 317 DATE: January 26, 2021 ORDER Entitlement to an initial compensable rating for residuals of a right rib injury (rib disability), is granted. REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Throughout the appeal period, the Veteran's residuals of a right rib injury manifested by pain, painful motion, tenderness, shortness of breath, and functional loss. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial evaluation of 10 percent, but no higher, for residuals of a right rib injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5297. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to April 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded in July 2018. This remand also addressed several issues for which a Statement of the Case was to be issued; several Statements of the Case were issued in this regard, but the Veteran never responded, and those claims are not presently before the Board on appeal. In the April 2013 rating decision, the Veteran was denied TDIU. In the Veteran’s May 2013 Notice of Disagreement, it is unclear if he was also appealing the TDIU decision in addition to the claim for an initial compensable rating for residuals of a right rib injury. The Veteran also had a TDIU claim in a separate appeal. However, the Veteran has failed to file a VA Form 9 to perfect that appeal. Additionally, the Veteran submitted a VA Form 21-4138 Statement in Support of Claim in May 2014 and requested that the VA consider unemployability after the other issues (the aforementioned appeal stream) have been decided. Since the Veteran has not submitted a Form 9, the Board finds that a claim for TDIU has been reasonably raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009) and will be part of this decision. Entitlement to an initial compensable rating for residuals of a right rib injury The Veteran seeks an initial compensable rating for his service-connected residuals of a right rib injury. The Veteran's service-connected rib disability is rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5297. As noted above, the Veteran's service-connected rib disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5297. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 5299-5297 reflects that there is no diagnostic code specifically applicable to the Veteran's service-connected fractured rib disability, and that the disability has been rated by analogy to removal of ribs, under Diagnostic Code 5297. 38 C.F.R. § 4.20. Under Diagnostic Code 5297, a 10 percent rating is warranted for removal of one rib or resection of two or more ribs without regeneration. A 20 percent rating is warranted for removal of two ribs. A 30 percent rating is warranted where three or four ribs have been removed. A 40 percent rating is warranted where five or six ribs have been removed. A maximum (50 percent) rating is warranted for the removal of six or more ribs. 38 C.F.R. § 4.71a. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. However, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone result in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on the evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). At the outset, the Board notes that the Veteran has no history of rib removal or resection. Thus, the Veteran's disability does not meet the listed criteria for a compensable rating pursuant to Diagnostic Code 5297. However, the Board also notes that the Veteran's rib disability is not without residuals. The Veteran was afforded a VA examination in November 2012. The Veteran reported pain in his right chest wall when taking deep breaths. The examiner found that the Veteran’s ribs were symmetric-appearing and felt normal with full expansion on deep breathing. The examiner stated that the Veteran did not have a lung condition and that what he described was actually a feeling of shortness of breath when he was unable to take a deep breath. The examiner also opined that the Veteran’s rib condition would not impact his physical or sedentary employment. In July 2017, the Veteran submitted his own lay statement, in which he described how he injured his ribs on active duty and how he now suffers from chronic pain as a result. In a September 2017 primary care visit, the Veteran’s right ribs were found to be soft and tender. In January 2020, the Veteran reported to a VA Medical Center (VAMC) emergency department for shortness of breath. The Veteran stated that he had right rib cage pain for years. While the Veteran's residuals of pain, painful breathing, shortness of breath, and resulting functional impairments on movement are not specifically addressed in Diagnostic Code 5297. However, Diagnostic Code 5297 is used to evaluate what is considered a musculoskeletal disability. 38 C.F.R. § 4.40 states that a disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and in evaluating such a disability these defects must be taken into consideration. Further, painful motion is entitled to at least the minimum compensable rating for a joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 205-07 (1995). Pain, on its own, does not constitute functional loss; it must cause functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 39-42 (2011). While a rib is not considered a joint in the traditional sense, the Board finds no reason why, under the facts of this case, the rationale underlying the regulations and case law pertaining to rating joints is also not applicable to the Veteran's disability. In reaching this determination, the Board reiterates that both the Veteran's disability and the case law and regulations pertaining to the joints relate to disabilities of the musculoskeletal system. See 38 C.F.R. Part 4, Subpart B. Specifically, the intent of the schedular rating criteria to recognize a healed musculoskeletal injury as productive of a disability and subject to a minimal compensable disability rating of 10 percent. 38 C.F.R. § 4.59. Accordingly, the Board finds that the Veteran's residuals of pain, painful motion, shortness of breath, and his functional impairments that result from these symptoms support the grant of the minimum compensable rating, of 10 percent, pursuant to Diagnostic Code 5297. Burton, 25 Vet. App. at 3-5. Again, a higher 20 percent rating is available for removal of two ribs; however, as discussed above, removal of two ribs, or even more ribs, was not demonstrated or approximated at any point during the appeal period. Thus, a 20 percent evaluation, or even higher evaluations for removal of more than two ribs, is not warranted. Additionally, there are no other identified residuals to warrant consideration of other diagnostic codes, as the injury is specific to the Veteran's ribs nor does it involve any potentially related muscles. This appeal does not raise any additional issues, other than the TDIU claim described below. REASONS FOR REMAND As a TDIU claim has been raised by the record, the Veteran should be afforded an opportunity to supplement the record and have his claim adjudicated by the RO prior to a Board decision. Accordingly, this case is REMANDED for the following action: 1. Furnish the Veteran with a notice letter, including a VA Form 21-8940, informing him of the evidence necessary to substantiate a TDIU claim. Allow a reasonable period time to respond and to return the VA Form 21-8940. 2. Then, adjudicate the Veteran’s claim, already considered to be on appeal, in Statement of the Case. All the Veteran a reasonable period in which to respond. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.