Citation Nr: 21064725 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-10 144 DATE: October 21, 2021 ORDER Prior to January 17, 2019, entitlement to an initial rating in excess of 20 percent for lumbosacral strain with degenerative arthritis of the spine is denied. From January 17, 2019, entitlement to an initial staged rating in excess of 40 percent for lumbosacral strain with degenerative arthritis of the spine is denied. Entitlement to an initial 20 percent rating for costochondritis of the left side is granted. Entitlement to an initial 20 percent rating for costochondritis of the right side is granted. FINDINGS OF FACT 1. Prior to January 17, 2019, the Veteran's lumbosacral strain with degenerative arthritis of the spine did not manifest as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire spine, or incapacitating episodes. 2. From January 17, 2019, the Veteran's lumbosacral strain with degenerative arthritis of the spine has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. Throughout the appeal period, the Veteran's bilateral costochondritis has manifested moderate symptoms, to include chronic pain on both sides of the sternum that limits use of arms. CONCLUSIONS OF LAW 1. Prior to January 17, 2019, the criteria for an initial rating in excess of 20 percent for lumbosacral strain with degenerative arthritis of the spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5243-5242. 2. From January 17, 2019, the criteria for an initial staged rating in excess of 40 percent for lumbosacral strain with degenerative arthritis of the spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5243-5242. 3. The criteria for an initial 20 percent rating for costochondritis of the left side have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.56, 4.73, Diagnostic Code 5303. 4. The criteria for an initial 20 percent rating for costochondritis of the right side have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.56, 4.73, Diagnostic Code 5303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to December 1979. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for costochondritis with a 20 percent disability rating and service connection for lumbosacral strain with degenerative arthritis of the spine with a 20 percent disability rating, effective June 12, 2017. In October 2018, the Veteran duly filed a notice of disagreement (NOD) as to the effective dates and initial ratings assigned for these disabilities. In February 2019, the RO granted an increased rating for the lumbosacral strain with degenerative arthritis of the spine to 40 percent disabling effective January 17, 2019. In May 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2021, the Board granted earlier effective dates of February 9, 2000 for the award of service connection for costochondritis and lumbosacral strain with degenerative arthritis of the spine. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, a "staged" rating is warranted if the evidence demonstrates distinct periods when a service-connected disability exhibits diverse symptoms meeting the criteria for different ratings, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain with degenerative arthritis of the spine prior to January 17, 2019 and in excess of 40 percent thereafter. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5242. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1). Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. at Note (5). Additionally, if there is evidence of IVDS, Diagnostic Code 5243 provides it is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (VA's Combined Ratings Table). The Formula for Rating intervertebral disc syndrome (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 explains that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The rating criteria for IVDS were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). The revised criteria provide that a rating under Diagnostic Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 be assigned for all other disc diagnoses. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the amendment discussed above has a specified effective date without provision for retroactive application, the amendment may not be applied prior to its effective date. As of the effective date, February 7, 2021, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. The Veteran's thoracolumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5242. In the assignment of diagnostic codes, hyphenated numbers may be used. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 5243 sets forth the criteria for rating IVDS and Diagnostic Code 5242 sets forth the criteria for degenerative arthritis of the spine. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5242, were amended. However, the amendment changed only the title of the regulation from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than [IVDS]", the latter to account for situations when there is not disc herniation with compression and/or irritation of the adjacent nerve root to warrant rating the disability, instead, under Diagnostic Code 5243. No substantive changes were made to the General Rating Formula so including to Diagnostic Code 5242, in terms of assessing, as an example, range of motion. The Veteran's lumbar spine disability has been evaluated as 20 percent disabling prior to January 17, 2019 and as 40 percent disabling from January 17, 2019. The question for the Board, therefore, is whether her disability picture more nearly approximated the criteria for higher ratings. Prior to January 17, 2019 VA outpatient treatment records dated from February 2000 show the Veteran's complaints and treatment for ongoing chronic back pain. In January 2003, imaging study of the lumbar spine showed generalized osteoporosis, with no evidence of fracture. The impression was mild degenerative joint disease on facet joints on the right at L4-5. During a July 2003 orthopedic examination, there was tenderness of the lumbosacral aspect of the lower back without spasm. Forward flexion was to 70 degrees, extension was to 10 degrees, and lateral flexion was to 20 degrees to the right and to the left. During kinesiotherapy sessions in May, June, and July 2014, the Veteran's back movement showed that forward-, backward-, and side- bending were all within normal limits. The Veteran was provided a VA back conditions examination in November 2017. She complained of low back pain with prolonged sitting, standing, and walking as well as bending and twisting. She had stiffness in the morning and after sitting for a prolonged period. She had been treated with muscle relaxers and physical therapy with minimal relief. The Veteran reported flare-ups with staying in the same position for too long, spasms, and stiffness to that point that she could not move. She had a dull ache in the low back constantly. Regarding functional loss, she reported that she was limited to stay in the same position for too long and sleeping was difficult because she was constantly tossing and turning to get comfortable. Initial range of motion (ROM) consisted of forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss. There was moderate tenderness to palpation over the bilateral lumbar paravertebral musculature consistent with her chronic lumbar strain and DDD. There was evidence of pain on passive ROM and in non-weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and the ROM after repetitive testing consisted of forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. It was noted that pain, fatigue, and lack of endurance significantly limited functional ability with repetitive use over time but the examiner was not able to determine in terms of ROM without resorting to mere speculation. The examination was conducted during a flare-up; the ROM during a flare-up consisted of forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. There was muscle spasm that did not result in abnormal gait or abnormal spinal contour. Additional contributing factors of disability included the following: less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. Muscle strength testing was normal with no muscle atrophy. Reflex and sensory examinations were normal. The Veteran did not have any radicular pain or signs or symptoms due to radiculopathy or any other neurological abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). There was no ankylosis of the spine. The examiner found that the Veteran did not have IVDS with episodes requiring bed rest, and her back condition did not impact her ability to work. The Veteran was provided a VA back conditions examination in August 2018. She complained of back pain that affected her mobility and participating in activities of daily living. She stated she was currently lived with her sister who assisted her with bathing and grooming. She reported lower constant chronic persistent pain, which was aggravated with movements, and with sitting and standing for long periods of time; she also had spasms and sharp pain. Current treatment included use of back brace, Bengay cream, and medication. The Veteran reported she had flare-ups of severe pain during which she could not walk or engage in any activities and had to lie in bed. Initial ROM consisted of forward flexion to 35 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The abnormal ROM itself contributed to a functional loss of pain and decreased ROM. The Veteran exhibited pain with all ROMs causing functional loss but there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no change in RO after repetitive testing. The examiner stated it was not possible to determine without resorting to mere speculation to estimate loss of ROM with repetitive use over time or during a flare-up because there was no conceptual or empirical basis for making such a determination without directly observing function under these condition. There was muscle spasm, but it did not result in abnormal gait or abnormal spinal contour. Additional contributing factors of disability included the following: less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal with no muscle atrophy. Reflex examination was normal but sensory examination revealed decreased sensation to light touch with bilateral foot/toes. The Veteran had mild radicular pain, paresthesias/dysesthesias and numbness in the bilateral lower extremities. She did not have any other neurological abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). There was no ankylosis of the spine. The Veteran had IVDS with episodes requiring bed rest having a total duration of at least 1 week but less than 2 weeks during the previous 12 months, due to severe back pain. She used a cane regularly as a normal mode of locomotion. As to the Veteran's back condition's impact on her ability to work, the Veteran reported she lost 2 to 4 weeks of work time in the last 12 months due to back pain, and she could not sit for a long time at work. Her work was sedentary which aggravated her back. She was also limited in bending, stooping, pushing, pulling, carrying, and lifting moderate objects. After careful consideration of the medical and lay evidence of record, the Board concludes that, prior to January 17, 2019, an initial rating in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. The Board finds that, prior to January 17, 2019, the preponderance of the evidence is against finding that the Veteran's lumbar spine disability manifested as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least 4 weeks, and accordingly, a disability rating in excess of 20 percent is not warranted. During this period, physical examination revealed forward flexion of 70 degrees in July 2003, 90 degrees in May, June and July 2014, 45 degrees in November 2017, and 35 degrees in August 2018. The November 2017 and August 2018 VA examinations revealed muscle spasm, but it was not severe enough to result in an abnormal gait or abnormal spinal contour, which is contemplated by a disability rating of 20 percent. As for incapacitating episodes due to IVDS, the Board notes that the medical evidence establishes that the Veteran does suffer from IVDS with incapacitating episodes requiring bed rest to treat the IVDS. However, the August 2018 VA examiner indicated that the Veteran's IVDS resulted in episodes requiring bed rest for a total duration of one week but less than two weeks during the previous 12 months, due to severe back pain. The Veteran has not contended otherwise. Consequently, the Board finds that the Veteran's lumbar spine disability did not manifest as incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months to warrant a higher disability rating under the criteria for IVDS. As a final matter, the Board notes that the change to Diagnostic Code 5243 effective February 7, 2021 states that the criteria should be applied for intervertebral disc syndrome only when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the evidence does not reflect that the Veteran suffers intervertebral disc syndrome/lumbosacral disc herniation, the revised criteria is not applicable. In any case, the revised criteria is not applicable during this time period as the effective date is after this period. In addition to the schedular criteria, the Board has considered functional loss due to flare-ups of pain, fatiguability, and lack of endurance for this period under consideration. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The probative evidence, both medial and lay, establishes that the Veteran has reported increased pain with prolonged standing and sitting, and limited mobility in bending, stooping, pushing, pulling, carrying, and lifting moderate objects in August 2018. However, as noted above, range of motion testing has produced varied results, the worst being forward flexion of 35 degrees. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has been so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis of the entire thoracolumbar spine. VA examiners consistently have indicated that ankylosis is not present. Even considering DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, ankylosis was not nearly approximated. The Veteran has not contended otherwise. Consequently, the Board finds that, prior to January 17, 2019, the Veteran's back disability did not manifest as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes such that a rating in excess of 20 percent is warranted. From January 17, 2019 During a January 2019 VA examination, the Veteran complained of constant back pain that limited her movement and ability to perform activities of daily living, such as bending, dressing or bathing herself. She also reported intermittent muscle spasm and intermittent pain radiating down both her legs with numbness of the toes, which was worse with prolonged sitting or standing. She walked with assistance of a cane. Initial ROM testing revealed forward flexion of 10 degrees; extension of 10 degrees; right and left lateral flexion of 10 degrees; and right and left lateral rotation of 10 degrees. The abnormal, decreased, ROM itself contributed to a functional loss due to constant pain and spasm. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in RO after repetitive testing. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limited functional ability with repeated use over a period of time or during a flare-up. The Veteran exhibited pain with all ROMs causing functional loss but there was no evidence of pain with weight bearing. There was moderate tenderness to her mid lower spine. The Veteran did not perform repetitive-use testing due to fear of pain. The examiner stated it was not possible to determine without resorting to mere speculation to estimate loss of ROM with repetitive use over time or during a flare-up because there was no conceptual or empirical basis for making such a determination without directly observing function under these condition. Additionally, for this Veteran, there was no persistent evidence of record considered to be valid or reproducible for rating purposes that indicated a loss of function during these conditions. There was guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. Additional contributing factors of disability included the following: less movement than normal due to ankylosis, adhesions, etc. as the Veteran had limited ROM with difficulty performing ROM, guarding, and disturbance with locomotion using a cane for support. Muscle strength testing was normal with no muscle atrophy. Reflex examination was normal but sensory examination revealed decreased sensation to light touch with bilateral foot/toes. The Veteran had radicular pain, paresthesias/dysesthesias, and numbness in the bilateral lower extremities. She did not have any other neurological abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). There was no ankylosis of the spine. The Veteran had IVDS with episodes requiring bed rest having a total duration of at least one week but less than two weeks during the previous 12 months, due to severe back pain. She used a cane regularly as a normal mode of locomotion. As to the Veteran's back condition's impact on her ability to work, the Veteran reported she lost two to four weeks of work time in the last 12 months due to back pain and she could not sit for a long time at work. Her work was sedentary but sitting long time aggravated her back. A September 2020 Back Conditions Disability Benefits Questionnaire (DBQ) shows a diagnosis of lumbosacral strain with degenerative arthritis of the spine and IVDS. The Veteran reported chronic back pain with inability to bend over to pick up things or sit or stand for long periods. She reported no flare-ups but functional impairment in terms of inability to bend over at all. She refused to perform ROM testing. Pain was noted on examination and caused functional loss. There was guarding, without muscle spasms, of the thoracolumbar spine but it was not clear that it resulted in abnormal gait or abnormal spinal contour. Muscle strength was normal except for reduced strength with right hip flexion, but there was no muscle atrophy. Deep tendon reflexes and sensory examinations were also normal. There was no ankylosis. The Veteran did not have any signs or symptoms due to radiculopathy or other neurological abnormalities. The examiner indicated that the Veteran had IVDS, but it did not require episodes of bed rest during the past 12 months. She used a back brace occasionally. There was no objective evidence of pain noted in non-weight-bearing. The examiner indicated that the Veteran's thoracolumbar spine disability impacted her ability to work, and she lost one to two weeks of worktime in the last 12 months. Beginning January 17, 2019, the Board concludes that an initial staged rating in excess of 40 percent is not warranted as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Rather, the evidence clearly demonstrates that the Veteran has continued to retain motion in her lower back, albeit severely limited. Findings obtained through the January 2019 and September 2020 VA examinations included, at least, forward flexion of the thoracolumbar spine to 10 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 10 degrees, respectively, and that there has been no ankylosis of the spine at any time during the rating period on appeal. Also, as there was motion, the medical evidence of record simply does not show unfavorable ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher rating. See 38 C.F.R. § 4.71a, General Rating Formula. The Board has also considered whether there is any additional functional loss not contemplated in the current 40 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. Throughout this period, severe pain on motion is shown and at times, the ROMs could not be test due to pain. Additionally, the Veteran complained of inability to bend over to pick up things or sit or stand for long periods. However, in any event, additional functional loss approximating a finding of unfavorable ankylosis of the entire thoracolumbar spine has not been shown. Accordingly, a rating greater than 40 percent on this basis is not warranted. Id. Separate neurological ratings for bilateral lower extremities associated with service-connected back disability are already granted in this case, and the record does not show any other neurological abnormalities in connection to the back disability. As the preponderance of the evidence is against the claims for higher initial ratings, there is no doubt to be resolved, and ratings greater than those currently assigned for the Veteran's service-connected disabilities are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement an initial rating in excess of 20 percent for costochondritis. The Veteran's costochondritis is currently evaluated as 20 percent disabling, effective February 9, 2000, under 38 C.F.R. § 4.73, Diagnostic Code 5303. The rating schedule does not provide a specific diagnostic code for costochondritis, so the Veteran's costochondritis has been rated analogously under Diagnostic Code 5303 for an injury to Muscle Group III, the intrinsic muscles of shoulder girdle: (1) pectoralis major; (2) deltoid. 38 C.F.R. § 4.73, Diagnostic Code 5303. 38 C.F.R. §§ 4.20, 4.27. Costochondritis is an "inflammation and associated tenderness of the cartilage (i.e., the costochondral joints) that attaches the front of the ribs to the breastbone." Gale Encyclopedia of Medicine (4th ed. 2012). In this case, 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. Based on the Veteran's reported symptomatology and as discussed further below, the Board finds that the Veteran's costochondritis is most appropriately evaluated as a muscle disability. Of particular note, disabilities of the shoulder and arm would be the most related musculoskeletal disability to consider for rating costochondritis; however, the Veteran has not indicated that her costochondritis causes limitation of motion of the arms and/or shoulders that warrants a higher rating. Rather, she asserts that has pain on both sides of her sternum where her ribs meet the breastbone. The Veteran has not identified, and the objective findings discussed below do not suggest, that there is distinct musculoskeletal symptomatology of her bilateral shoulders that would warrant separate evaluation. Thus, the Board has concluded that the Veteran's costochondritis should be scrutinized as a muscle disability. In this regard, the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). 38 C.F.R. § 4.56 provides factors to be considered in classifying a muscle injury as slight, moderate, moderately severe, or severe. Under 38 C.F.R. § 4.56 muscle disabilities are evaluated as follows: (a) 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; (b) a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; and (c) 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. Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. Muscle disability is considered to be slight if it was a simple wound of muscle without debridement or infection. The history of a slight muscle disability should include service department record of a superficial wound with brief treatment and return to duty, as well as healing with good functional results. There should be no cardinal signs or symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement). The objective signs of slight disability include minimal scars; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56. Muscle disability is considered to be moderate if it was caused by a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. The history of a moderate muscle disability should include service department records or other evidence of in-service treatment for the wound as well as a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement), particularly, lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective signs of moderate disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue; some loss of deep fascia or muscle substance; impairment of muscle tonus and loss of power; or a lowered threshold of fatigue when compared to the sound side. Id. Muscle disability is considered to be moderately severe if it results from 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. The history of a moderately severe muscle injury should include service department records or other evidence showing hospitalization for a prolonged period for treatment of the wound; consistent complaints of the cardinal signs and symptoms of muscle disability as noted above; and, if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups; the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and impairment of strength and endurance in comparison to the sound side. Id. Severe disability consists of 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. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. Id. If present, the following are also signs of severe muscle disability: (1) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. Diagnostic Code 5303 pertains to the function of elevation and abduction of arm to level of shoulder and acting with 1 and 2 of Muscle Group II in forward and backward swing of arm. For the dominant side, a moderate injury warrants a 10 percent rating, a moderately severe injury warrants a 30 percent rating, and a severe injury warrants a 40 percent rating. 38 C.F.R. § 4.73. A moderate injury warrants a 20 percent rating, a moderately severe injury warrants a 30 percent rating, and a severe injury warrants a 40 percent rating. Id. For the non-dominant side, a 20 percent rating is available for a moderate to moderately severe disability. A higher 30 percent rating is available for severe disability. 38 C.F.R. § 4.73. The Veteran is right-handed; therefore, her right side is considered the dominant side for rating purposes. VA examined the Veteran in November 2017. The report notes a history of costochondritis to the anterior chest wall, right greater than left, which began in 1978 during active duty service. The Veteran described a traumatic event where she was struck with a closed fist to the chest wall by a male soldier; he punched her directly in the right breast and right chest wall. She had since had chronic recurrent chest wall pain to the right anterior aspect that was worse with palpation and with reaching and stretching. She had been treated with Motrin. The Veteran was right hand dominant. The examiner indicated that the Veteran had a history of a Group III muscle injury affecting both side. She did not have any scar and there was no evidence of fascial defects associated with the muscle injury. The muscle injury did not affect muscle substance or function. She had lower threshold of fatigue and fatigue-pain on both sides of the muscle group affected, occasionally. The Veteran had normal strength (5/5) for all muscle groups and there were no measurable or notable muscle atrophy. In August 2018, the Veteran underwent another VA examination. The examiner noted the Veteran had a non-penetrating muscle injury. The Veteran reported chronic persistent pain with burning. The examiner indicated that the Muscle Group III, involving intrinsic muscles of shoulder girdle, on both sides, as well as Muscle Group XXI (muscles of respiration; thoracic muscle group) and XXII (muscles of the front of the neck), were affected. There were minimal scar(s) and some loss of muscle substance associated with the muscle injury. She had fatigue-pain on both sides of the muscle groups affected, occasionally. The Veteran had normal strength (5/5) for all muscle groups and there was no muscle atrophy. In January 2019, the Veteran underwent another VA examination. The Veteran reported chronic pain on both sides of the chest with intermittent sharp shooting pain that radiated down the right breast worse than the left side of the chest. She stated that she was unable to bathe or dress herself, and her sister helped her with her activities of daily living. The examiner indicated that the Muscle Group III, involving intrinsic muscles of shoulder girdle, on both sides, was affected. There were no scar(s) or any fascial defects associated with the muscle injury. The muscle injury did not affect muscle substance or function. She had consistent fatigue-pain on both sides of the muscle groups affected, specifically, the right and left chest muscle was tender. The Veteran had less than normal strength (4/5) with shoulder abduction, for Muscle Group III, but there was no muscle atrophy. Most recently, the Veteran underwent a VA examination in September 2020. The Veteran continued to complain of chest pain. The examiner noted that Muscle Group III was not affected but the Muscle Group XXII, involving muscles of the front of the neck, including trapezius, sternocleidomastoid, hyoid muscles, sternothyroid, and digastric, on both sides, was affected. There were no scar(s) or any fascial defects associated with the muscle injury. The muscle injury did not affect muscle substance or function. The examiner also found that there were not any cardinal signs or symptoms present attributable to the muscle injury. The Veteran had normal strength (5/5) with shoulder abduction, for Muscle Group II, but there was no muscle atrophy. The Veteran reported she worked from home in a government job and lost zero to one week of work time in the last 12 months due to costochondritis symptoms manifested by sharp pain in the front of her chest near where the breastbone and ribs met, typically on the left side. She had pain when she took a deep breath or coughed and tenderness on pressing on the rib joints. Based on a careful review of the clinical and subjective evidence, upon resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's costochondritis warrants separate ratings of 20 percent for moderate impairment caused by costochondritis of the left and right side under Diagnostic Code 5303. The Board finds that the Veteran's subjective complaints of severe pain, particularly during exertion, manifest symptomatology that arguably equates to moderate impairment. Concerning this, the Veteran reports symptoms of chest pain and minimized use/interference with daily activities, such as bathing and dressing herself. However, the Board concludes that the next higher rating of 30 percent is not warranted for either side under Diagnostic Code 5303, as moderately severe muscle injury symptoms have not been shown. Although the Veteran related that she did not report the incident that caused the chest injury, service treatment records do not show any hospitalization or treatment required for debridement or prolonged infection of the chest. Service treatment records dated September 1978 show that she complained of severe upper chest and rib pain with swelling of abdomen and rib area. She had several strained muscles. The assessment was pelvic inflammatory disease and early urinary tract infection. Per the Veteran's report, the injury was caused by non-penetrating trauma inflicted by impactful force to her chest. Thus, the Board notes that the Veteran's muscle injury was not caused by a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. The evidence of record also does not reflect consistent complaints of the cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement). Particularly, the Veteran has had lower threshold of fatigue and fatigue-pain on both sides of the muscle group affected, occasionally, but she has normal to slightly reduced strength (4/5) with shoulder abduction and there was no muscle atrophy. Moreover, there was no sign of small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue; some loss of deep fascia or muscle substance; impairment of muscle tonus and loss of power; or a lowered threshold of fatigue when compared to the sound side. To the contrary, the VA examinations revealed no to minimal scar(s). None of the VA examinations conducted during the period on appeal shows fascial defects or loss of power and muscle tone. In addition, the Veteran reported she worked from home in a government job and lost zero to one week of work time in the last 12 months due to costochondritis symptoms. To the extent that she was able to work, albeit losing about one week of time from work, inability to keep up with work requirements due to costochondritis is not shown. Based on the foregoing evidence, the characterization of moderately severe or even severe impairment of the muscle group involved is not supported. Therefore, while the Board finds the Veteran's testimony credible with respect to the claimed increased symptoms of pain and minimized use with exertion; and concludes that throughout the appeal period, her costochondritis more closely approximates the higher rating of 20 percent for moderate impairment. Additionally, the Board notes that the August 2018 VA examination found that Muscle Groups XXI and/or XXII were also affected by costochondritis. However, there was no specific symptoms identified for these affected muscle groups. Regarding cardinal signs and symptoms, the examiner noted occasional pain but failed to indicate which muscle group(s) affected were being referred to. There is no indication that the Veteran's respiration, rotary and forward movement of the head, or deglutition (swallowing) was functionally limited. Similarly, the September 2020 VA examiner also notes Muscle Group XXII was affected, while Muscle Group III was not affected by the costochondritis. However, no cardinal signs and symptoms or limited function were identified affecting the Muscle Group XXII. In fact, the Veteran mainly complained of pain affecting her ability to conduct daily activities, particularly involving reaching and stretching. She was shown to have less than normal strength (4/5) with shoulder abduction at the January 2019 VA examination but otherwise, she exhibited normal muscle strength through the appeal period. As such, the Board finds that the Veteran's symptoms more closely resemble Muscle Group III, the shoulder girdle and arm muscle group, including intrinsic muscles of shoulder girdle: pectoralis major and deltoid as evaluation under Diagnostic Code 5303 would result in a highest disability rating than under Diagnostic Code 5321 or 5321. However, as the Veteran's costochondritis involves both sides of Muscle Group III, the Board concludes that throughout the appeal period, separate ratings of 20 percent for costochondritis of the left and right side should be awarded for moderate impairment. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.