Citation Nr: 21071494 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-28 729 DATE: November 30, 2021 ORDER Entitlement to a 20 percent initial rating for chronic costochondritis for the entire appeal period is granted. Entitlement to an initial evaluation higher than 30 percent evaluation beginning November 8, 2016 for GERD with antral gastritis is denied. REMANDED Entitlement to an extraschedular rating for chronic costochondritis is remanded. Entitlement to an extraschedular rating for GERD with antral gastritis is remanded. Entitlement to a compensable initial rating for gastroesophageal reflux disease (GERD) with antral gastritis prior to November 8, 2016 is remanded. FINDINGS OF FACT 1. The Veteran's chronic costochondritis is manifested by severe disability. 2. For the period beginning November 8, 2016, the Veteran's GERD with gastritis did not more nearly approximate a combination of symptoms productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent initial rating for chronic costochondritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5321. 2. [Deny] The criteria for Entitlement to a compensable initial rating for gastroesophageal reflux disease (GERD) with antral gastritis prior to November 8, 2016 have not been met. 3. [Deny] The criteria for Entitlement to an initial evaluation higher than 30 percent evaluation beginning November 8, 2016 have not been met. 4. The criteria for a disability rating in excess of 30 percent for service-connected GERD with antral gastritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1980 to January 2000. In April 2019, the Board issued a decision denying entitlement to increased ratings for costochondritis and GERD. The Veteran appalled the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's August 2019 decision, and remanding the case to the Board for additional consideration. The Board remanded the case in May 2021. This case is now again before the Board for adjudication. Increased Rating 1. Entitlement to a 20 percent initial rating for chronic costochondritis The Veteran contends that he is entitled to a higher rating because of the severity of his chest pain. Alternatively, he contends that an extraschedular evaluation is warranted due to marked interference with his work and frequent hospitalizations. The Regional Office (RO) has evaluated the Veteran's costochondritis under Diagnostic Code 5321. Diagnostic Code Diagnostic Code 5321 provides for injuries involving the respiration muscles. Severe or moderately severe injury would warrant a 20 percent evaluation, moderate injuries would warrant a 10 percent rating and slight injuries would warrant a noncompensable rating. The RO also noted that the Veteran is being evaluated by analogy with this Diagnostic Code. Rating by analogy is appropriate here as the June 2021 examiner explained that costochondritis is not a muscle injury but instead an injury of micro-tears to the cartilage that connects the rib to the breastbone. The question in this appeal is whether the Veteran's chronic costochondritis is severe, moderate, or slight in nature. During the January 2021 examination, the Veteran reported that pain causes frequent trips to the emergency room if he does not have pain pills on him. It also impacted his job because he could not stand for long periods and was unable to focus on tasks at hand. The examiner concluded that the Veteran's costochondritis was mild during service, and there have been no severe episode of costochondritis since service connection establishment. In April 2020, the United States Court of Appeals for Veterans Claims granted the Motion for the Joint Motion for Partial Remand (JMPR). In the JMPR, the parties explaining that the Board did not explain the ameliorative effects of the Veteran's medication when applying a diagnostic code. Subsequently, the Board remanded this case for another examination. The July 2021 examiner noted that certain motions can cause re-injury and again cause pain. In the Veteran's case, the examiner opined that it is likely that re-injury occurred frequently as a result of the job duties required as an FBI agent. For example, to pass an escape and evasion training, the Veteran uses the left upper extremity to manipulate a steering wheel while twisting his body to the right to drive a vehicle in reverse at high speeds. His chest pain is located just left of the mid sternum between the 3rd to 6th ribs. He described the pain as a sharp and burning quality of pain. He rates his pain as 8/10. Over the counter baby aspirin and drinking cold water only temporarily provide relief. Without aspirin, the Veteran would have constant pain. During the June 2021 examination, the Veteran reported that in his previous occupation, he lost two to four weeks of work time in the last 12 months. He reported he had difficulty with wearing a 15 to 20 pound vest, 20 pound weapon belt and a gun on his left for five to six hours. He also reported difficulty passing escape and evasion trainings that involved manipulating a steering wheel with his left hand while twisting his body to look behind and drive a car in reverse at a high speed. The examiner noted that costochondritis is an injury to the cartilage that connects the rib to the breastbone, often a result of a chest injury or strain from physical activity. The examiner explained that there is no definitive diagnostic testing that can be performed for this diagnosis. Re-injury can occur and is evidenced by the Veteran describing a sharp and burning quality of pain in the area close to the mid sternum at the 3rd-6th ribs two to three times a day. The Board finds that the Veteran has reported severe symptoms and the June 2021 examination and VA treatment records show severe symptoms due to his costochondritis throughout the appeal period. Moderately severe to severe symptoms under DC 5321 warrant a 20 percent evaluation. A 20 percent evaluation is the highest rating assignable under DC 5321. Despite this, a 20 percent evaluation does not appear to reflect the severity of pain that the Veteran has reported. Furthermore, the Veteran reports that he has marked interference with employment and frequent periods of hospitalizations for his disability. Therefore, the Board has remanded the issue of an extraschedular rating for chronic costochondritis for referral for extraschedular consideration. 2. Entitlement to an initial evaluation higher than 30 percent evaluation beginning November 8, 2016 for GERD with antral gastritis The Veteran contends that he is entitled to a higher rating because he has marked interference with work and frequent hospitalizations. As explained below, the Board is remanding the issue of an extraschedular evaluation to the Director VA's Director of Compensation Service for extraschedular consideration. The Veteran's GERD with antral gastritis is rated by analogy under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The rating criteria are not successive or cumulative with that of the lower rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (The Court recognized that disabilities rated by analogy will not show all objective criteria of the analogous rating). For the reasons that follow, the Veteran's GERD with antral gastritis manifested in persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. During the December 2016 examination, the Veteran reported persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, sleep disturbance, nausea, and melena with moderate anemia. In the February 2021 examination, the examiner indicated that the Veteran had reflux, substernal pain, sleep disturbance caused by esophageal reflux, and nausea. The examiner was asked to comment on the ameliorative effects of the medication but did not do so. The examiner found that the GERD did not have any severe episodes since service. In an April 2020, the United States Court of Appeals for Veterans Claims granted the Motion for the Joint Motion for Partial Remand (JMPR). In the JMPR, the parties explained that the Board did not explain the ameliorative effects of the Veteran's medication when applying a diagnostic code. Subsequently, the Board remanded the case. Therefore, the Veteran was afforded another examination and opinion following the January 2021 examination. The Veteran was afforded an examination in July 2021. He reported that his heartburn has increased in the last two years. He reported two flare-ups per day for his GERD that includes burning of the chest and throat. He also reported left side chest pain to the left of the mid sternum. His other symptoms included pysrosis, reflux, and substernal pain. The examiner explained that despite taking medication, the Veteran condition has worsened to include flare-ups twice a day. Without medication, the Veteran's symptoms would likely be constant throughout the day. Although the Veteran's symptoms would be constant throughout the day, the Veteran has not alleged vomiting, or material weight loss. The July 2021 examiner also only noted pyrosis, reflux and substernal pain as symptoms of the Veteran's disability. Although the Veteran alleges anemia. The December 2016 examiner noted anemia, but the January 2021 examiner and July 2021 examiner did not find anemia to be a symptom of his GERD with antral gastritis. The Veteran's VA treatment records also indicated that the Veteran has a history of blood loss due to hemorrhoids. In this case, the Veteran is not competent to report that his anemia is due to his GERD and gastritis as this is not susceptible to lay observation and he lacks the requisite medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran's GERD with antral gastritis manifested in persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 7346. A higher 60 percent rating under DC 7346 is not warranted unless there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Although the examiner explained that the Veteran's symptoms would be constant without medication, the Veteran does not have symptom combinations productive of severe impairment of health. A 60 percent rating does not require specific symptoms because it allows for "other symptom combinations," as long as they are productive of severe impairment of health. There is no evidence of severe impairment of health. The July 2021 examiner did not find symptom combinations productive of severe impairment of health even when considering the effects of medication. Thus, the Veteran's GERD with gastritis did not more nearly approximate a combination of symptoms productive of severe impairment of health. A higher schedular 60 percent rating under DC 7346 is not warranted. REASONS FOR REMAND 1. Entitlement to an extraschedular rating for chronic costochondritis is remanded. 2. Entitlement to an extraschedular rating for GERD with antral gastritis for the period beginning November 8, 2016 is remanded. Certain exceptional or unusual circumstances may warrant remand to refer this claim for extraschedular consideration. 38 C.F.R. § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Veteran claims that his GERD with antral gastritis and chronic costochondritis warrant a higher evaluation due to marked interference with employment and frequent hospitalizations. During a September 2010 examination for costochondritis, the Veteran reported sharp pains during flare-ups that are severe 8/10 that occurred at least five days a week and will last at least one hour. He had constant pain that is moderate 6/10. Treatment included oxycodone with good response. The Veteran reported that it impacted his occupation as a security specialist because it limits his lifting. His sleep is also impacted. During the June 2021 examination, the Veteran reported that in his previous occupation, he lost two to four weeks of work time in the last 12 months. He reported he had difficulty with wearing a 15-20 pound vest, 20-pound weapon belt and a gun on his left for five to six hours. He also reported difficulty passing escape and evasion trainings that involved manipulating a steering wheel with his left hand while twisting his body to look behind and drive a car in reverse at a high speed. The examiner noted that costochondritis is an injury to the cartilage that connects the rib to the breastbone, often a result of a chest injury or strain from physical activity. The examiner explained that there is no definitive diagnostic testing that can be performed for this diagnosis. Re-injury can occur and is evidenced by the Veteran describing a sharp and burning quality of pain in the area close to the mid sternum at the 3rd-6th ribs two to three times a day. For these reasons, the Board finds that a remand of this appeal for referral for extraschedular consideration is warranted. 3. Entitlement to a compensable initial rating for gastroesophageal reflux disease (GERD) with antral gastritis prior to November 8, 2016 is remanded. Pursuant to an April 2020 JMPR, the Board remanded the issue of a higher evaluation for his GERD with antral gastritis in May 2021. The Board requested an opinion regarding the severity of the Veteran's GERD currently and throughout the appeal period as if the Veteran was not taking medication. After examining the Veteran, the July 2021 examiner explained that despite taking medication, the Veteran condition has worsened to include flare-ups twice a day. The examiner opined that without medication, the Veteran's symptoms would likely be constant throughout the day. The examiner provided an opinion about the severity of his GERD with antral gastritis currently but did not consider the period prior to November 8, 2016. A retrospective opinion is needed that provides the severity of the Veteran's GERD and antral gastritis for the period prior to November 8, 2016 as if the Veteran was not taking medication. The matters are REMANDED for the following action: 1. The examiner must review the claims file and should note that review in the report. The VA examiner is asked to provide the severity of the service-connected GERD with antral gastritis for the period prior to November 8, 2016 as if the Veteran was not taking medication, and should opine as to what symptoms would have been or would not have been present in the absence of the treating medication. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. 2. Refer the Veteran's claim for entitlement to initial evaluation higher than 30 percent evaluation for GERD with antral gastritis beginning November 8, 2016 to VA's Director of Compensation Service for extraschedular consideration. 3. Refer the Veteran's claim for entitlement to initial evaluation higher than 20 percent evaluation for costochondritis beginning November 8, 2016 to VA's Director of Compensation Service for extraschedular consideration. (Continued on the next page) 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.