Citation Nr: 21012964 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-48 187 DATE: March 8, 2021 ORDER A rating of 30 percent, but no higher, for costochondritis is granted. FINDING OF FACT During the appeal period, the evidence reflects that the Veteran’s service-connected costochondritis, affecting muscle group XIX, is manifested by a moderately severe injury. CONCLUSION OF LAW The criteria for a rating of 30 percent, but no higher, for costochondritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.56, 4.73, Diagnostic Code (DC) 5319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1987 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Subsequently, the Board remanded for further development in December 2019. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when 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, 510 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). A rating of 30 percent for costochondritis The Veteran seeks an increased rating for his costochondritis. He reported pain while lifting, bending, and stooping. He is currently rated at 10 percent under DC 5321. The Veteran contends that his disability is rated incorrectly under DC 5321, rather than DC 5319. During the appeal period, he has been rated under DC 5321 which is used for rating muscle group XXI relating to the respiration function and the thoracic muscle group. DC 5319 rates muscle group XIX relating to muscles of the abdominal wall, including the external and internal oblique. It is noted that the 2015 VA examiner described his disability as costochondritis with left-sided lower rib cage pain and the 2020 VA examiner determined that his disability related to the XIX muscle group and he did not have an injury to the respiratory muscles. In consideration of this information, the Board finds that the costochondritis disability is more appropriately rated under DC 5319 for the muscles of the abdominal wall. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Under Diagnostic Code 5319, muscle group XIX, a noncompensable rating is assigned for slight muscle disability, a 10 percent rating is assigned for moderate muscle disability, a 30 percent rating is assigned for moderately severe muscle disability, and a maximum 50 percent rating is assigned for severe muscle disability. The factors for determining whether muscle disability is slight, moderate, moderately severe, or severe are particular to the evaluation of healed wounds, such as those from gunshots or other missiles. 38 C.F.R. §§ 4.55, 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). A moderate muscle disability contemplates: injury characterized 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; a service treatment record or other evidence of in-service treatment for the wound; or, a record of consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, a moderate muscle disability consists of: entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; some loss of deep fascia or muscle substance impairment of muscle tonus and loss of power; or, lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability contemplates: injury characterized by 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; a service treatment record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; or, if present, evidence of inability to keep up with work requirements. Objectively, a moderately severe muscle disability consists of: entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; or, tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability contemplates: injury characterized by a through-and-through or deep penetrating wound due to a 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; a service treatment record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; or, if present, evidence of inability to keep up with work requirements. Objectively, a severe muscle disability consists of: ragged, depressed, and adherent scars indicating wide damage to 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; or, tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of a severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of 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 bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of a muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Turning to the evidence of record, the Veteran underwent a VA examination in May 2015. His diagnosis of costochondritis was confirmed. He reported having ongoing left-sided anterior lower rib cage pain for years which increased in the past two years. His pain occurred daily and was aggravated by physical activities that involved lifting or bending forward. He was not found to have a penetrating and non-penetrating muscle injury. He was not found to have any cardinal signs and symptoms. He did not have muscle atrophy. Medical treatment records show that in January 2015 he reported flare-ups and pain from his chest wall injury. In June 2016, the Veteran went to the emergency room for sharp, stabbing pain in his chest that he attributed to his costochondritis. In August 2016, the Veteran submitted a temporary disability document that indicated that he could not work for two months from July 2016 to September 2016. He was noted to have costochondritis and it stated that he could not operate heavy machinery due to constant chest pain. In June 2019, he reported that he worked in heavy construction and his costochondritis was irritated frequently even when lifting correctly. The Veteran was afforded another VA examination in September 2020. His costochondritis was documented as being a non-penetrating muscle injury of the muscle group XIX. His symptoms included decreased ability to bring left arm overhead due to thoracic limitations of injury, swelling, inflammations, decreased core stability on the left side, muscle spasms, and pain with coughing. He did not have an injury to the respiratory muscles. There was no muscle atrophy. He was not found to have fascial defects or muscle injuries that affect muscle substance or function. He had cardinal signs and symptoms of loss of power, weakness, lowered threshold of fatigue, fatigue and/or pain, impairment of coordination, and uncertainty of movement. His costochondritis functionally impacted his ability to work overhead due to pain of bringing his arm up and limitations of the costal cartilage. He was also limited in performing tasks that involved rotation and his sleep was affected to due pain. After consideration of the competent lay and medical evidence, the Board finds that the Veteran’s costochondritis disability more closely approximates a 30 percent rating, that is, a moderately severe disability. The evidence shows a record of consistent complaint of cardinal signs and symptoms and evidence of an inability to keep up with work requirements. However, his costochondritis has not manifested in symptoms that satisfy schedular criteria for a disability rating in excess of 30 percent under Diagnostic Code 5319. In finding a rating in excess of 30 percent is not warranted, the Board has considered that there is no competent evidence of ragged, depressed and adherent scars indicating wide damage to muscle groups; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swelling and hardening abnormally in contraction; or signs of severe impairment in muscle strength, endurance, or coordination. While the Veteran has been treated in the emergency department, it cannot be said that he has experienced hospitalization for a prolonged period of treatment for this disability. Absent symptomatology that is greater than moderately severe under 38 C.F.R. § 4.56, the preponderance of the evidence is against the award of a higher 50 percent (severe) disability rating for the Veteran's service-connected costochondritis under Diagnostic Code 5319. In sum, the criteria for a rating of 30 percent, but not higher, are met. At his September 2019 hearing and an October 2020 statement, the Veteran requested an extraschedular rating for his costochondritis. After reviewing the law and the evidence of record, the Board finds that the Veteran's costochondritis does not warrant referral for extraschedular consideration, as explained below. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If the disability picture is not adequately contemplated by the rating schedule, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Secretary for Benefits or the Director of the Compensation Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the rating criteria specifically address the Veteran's costochondritis symptomatology, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement which impact his ability to perform activities involving lifting, bending, and reaching overhead. Moreover, the criteria of moderate, moderately severe, and severe is broad enough to encompass the Veteran's symptoms, to include loss of working time, even though they are not specifically listed. See 38 C.F.R. § 4.1 (2020) (“Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”). Thus, the Board finds that the Veteran's disability picture is contemplated and compensated by the rating schedule, consideration of whether there has been marked interference with employment or frequent hospitalization is not required, and referral for extraschedular consideration is not warranted. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.