Citation Nr: 21021436 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 08-33 777 DATE: April 13, 2021 ORDER Entitlement to an increased rating of 10 percent disabling, and no higher, for left second and third costosternal costochondritis is granted. FINDING OF FACT Resolving doubt the Veteran’s favor, her costochondritis is manifested by no worse than moderate impairment of the muscles of respiration; there is moderate functional loss due to muscle damage, with no other cardinal signs or symptoms of muscle disability, and no atrophy. CONCLUSION OF LAW The criteria for an increased rating of 10 percent disabling, and no higher, for costochondritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Veteran testified at a hearing before a Decision Review Officer. In March 2015, the Veteran presented sworn testimony during a Board hearing before a Veterans Law Judge (VLJ). In June 2015, in pertinent part, the Board denied the Veteran’s claim of entitlement to a compensable disability rating for costochondritis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand, the Court issued a June 2016 Order vacating the portion of the Board’s decision denying the Veteran’s claim for entitlement to a compensable disability rating for costochondritis and remanded the matter for action in compliance with the Joint Motion for Partial Remand. In a November 2016 decision, the Board denied entitlement to a compensable disability rating for costochondritis. In a February 2019 Memorandum Decision, the Court vacated the Board’s November 2016 decision and remanded the matter to the Board for development consistent with its decision. In the February 2019 Memorandum Decision, the Court determined that the Board failed to satisfy its duties to provide heightened reasons or bases for its determination that Diagnostic Code 5320 was the most appropriate Diagnostic Code for evaluating the Veteran’s unlisted condition, costochondritis. Second, the Court found that the Board failed to provide adequate reasons or bases for whether a separate evaluation was warranted for manifestations of the Veteran’s costochondritis not addressed under Diagnostic Code 5320. Third, the Court indicated that the Board provided inadequate reasons or bases for its determination that a noncompensable evaluation for a muscle injury contemplated the Veteran’s costochondritis. In an August 2019 letter, the Veteran and her representative were provided notice by the Board that the VLJ who conducted that hearing was no longer employed by the Board, and that she could request another hearing before a different VLJ. See also Cook v. Wilkie, 908 F.3d 813 (2018) (appellant entitled to an opportunity for a Board hearing following vacatur and remand from the Court, even if that appellant was previously given a Board hearing in the case). The Veteran was given 30 days to respond. As neither the Veteran nor her representative have requested that a hearing before another VLJ be scheduled, the Board proceeded with a review of the case. See 38 C.F.R. § 20.707. In October 2019, the Board remanded the appeal to the RO for further development consistent with the February 2019 Court Memorandum Decision. In a September 2020 rating decision, the RO granted an increased rating of 10 percent disabling for left second and third costosternal costochondritis under Diagnostic Code 5320. In an October 2020 rating decision, the RO determined that a clear and unmistakable error had been committed in awarding a 10 percent disability rating under Diagnostic Code 5320 and reduced the disability rating to a noncompensable rating for left second and third costosternal costochondritis. Increased Ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating – Muscle Injuries The rating schedule does not include criteria for an evaluation of costochondritis; however, the schedule provides for analogous ratings under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. In consideration of the nature of the disability at issue, musculoskeletal codes pertaining to the chest region can be applied to determine the applicable rating. 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. The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 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). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. VA regulations provide various factors to consider when determining if a muscle injury is slight, moderate, moderately severe, or severe. A muscle disability is considered slight if it was a simple wound of muscle without debridement or infection. The history of a slight muscle disability should include service department records 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. A muscle disability is considered 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 as noted above 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. A muscle disability is considered 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. 1. Entitlement to an increased rating for left second and third costosternal costochondritis. The Veteran seeks an increased evaluation for her costosternal costochondritis. Initially, the Board notes that “costochondritis” is an “inflammation of the cartilaginous junction between a rib or ribs and the sternum.” Dorland’s Illustrated Medical Dictionary 423 (32d ed. 2012). The Veteran’s costochondritis disability is not listed in the Rating Schedule but presents a disability picture approximating a musculoskeletal disability. Where a particular disability for which a veteran has been service connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology, are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Veteran’s service-connected costochondritis has been rated by analogy as an injury to Muscle Group XX (Diagnostic Code 5320). However, the Board finds that Diagnostic Code 5321 is the most appropriate code to evaluate the Veteran’s disability. In this regard, the Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). Accordingly, one diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). With that above criteria in mind, the Board finds that the medical evidence of record demonstrates that Diagnostic Code 5321 is the most appropriate Diagnostic Code to consider the Veteran’s increased rating claim. Specifically, the medical evidence indicates that the primary symptomology reflects an injury to the muscle groups involving respiration. The Veteran’s complaints, as documented in her treatment records, indicate pain and discomfort during the respiratory process, which would result in shortness of breath, spasms, and other respiratory symptoms. As such, the Board will analyze the Veteran’s increased rating claim under Diagnostic Code 5321. Diagnostic Code 5321 covers injuries or disabilities of the muscles of respiration or thoracic muscle group. For slight injury, a noncompensable rating is assigned. A moderate injury warrants a 10 percent rating. A (maximum) 20 percent rating is warranted for severe or moderately severe injury. 38 C.F.R. § 4.73, Code 5321. Here, the evidence shows that during an April 2007 VA physical examination of the Veteran’s chest, the examiner found normal antero-posterior diameter and no evidence of intercostal retractions or deformities. A February 2008 VA treatment record notes the Veteran’s complaints of chest pain. An October 2008 VA otolaryngology report shows muscle soreness in the Veteran’s chest wall. In an April 2009 private emergency report, the Veteran reported chest pain with nausea, burning, sweating, shortness of breath, weakness, dizziness, and fatigue, which was relieved with rest. The Veteran also reported that she had been experiencing these symptoms for four consecutive days. Upon physical examination, the Veteran denied any tenderness to the chest. The physician indicated that there was no evidence of a fractured rib or murmur. The private physician characterized the Veteran’s chest pain as acute. In an April 2009 VA treatment report, the Veteran reported chest pain with shortness of breath. She described the chest pain as burning, tinging, and stabbing, which is exacerbated by physical activity and weather changes. In an April 2009 VA treatment report, the Veteran complained of chest pain. The examining physician noted that the Veteran was suffering from bilaterally midsternal chest pain associated with body positioning. The physician stated that the Veteran was “extremely” short of breath during periods of pain. The physician indicated that the Veteran’s symptomatology was not related to any cardiac issues. The physician noted that the Veteran would experience mechanical restriction of the thoracic rib cage that would be exacerbated with certain movements, especially with deep inhalation/exhalation. The Veteran underwent injections to relieve chest pains. The physician diagnosed right first rib syndrome and thoracic rib dysfunction. In a May 2009 VA treatment record, the physician noted the Veteran’s complaints of right first rib tightness. During a May 2011 VA examination, the VA examiner found no evidence of tenderness on palpation of the chest wall, or wheezing. Chest x-rays were normal. An April 2012 VA x-ray report shows no evidence of acute cardiopulmonary disease or abnormalities of the chest. In a February 2013 VA treatment record, the VA physician indicated that the Veteran’s chest wall was tender to palpitation, around the 9th rib junction. The VA physician noted a heart murmur but stated that the Veteran’s chest pain was not related to the murmur. During an April 2014 VA muscle injury examination, the Veteran reported chest wall pain. She also reported pain on movement occurring twice a month, which diminished over minutes. Upon physical examination, the Veteran’s muscle strength was normal, and there was no evidence of muscle atrophy. The VA examiner stated that the Veteran had no known pulmonary conditions, and occasional costochondritis pain was not significantly limiting respiration or chest wall expansion. The VA examiner confirmed a diagnosis of costochondritis and characterized it as a non-penetrating muscle injury. As to functional impact, the VA examiner indicated that her costochondritis did not impact her ability to work. In a March 2014 VA treatment record, the Veteran reported chest pain that radiated to her left arm. In a July 2014 statement, the Veteran reported that she was employed as a contractor. However, she stated that she was unable to work for a few months due to her headaches, chest pains, and numbness in her face. During the March 2015 Board hearing, the Veteran testified continuing symptomology of her costochondritis. Namely, she described that she experienced chest pain extending to the middle of her chest, right arm, shoulder, and left quadrant. During periods of severe chest pain, she had shortness of breath. She had muscle spasms. Her chest pains were brought on by certain body positioning and relieved by applying pressure or lying down. She reported chests pain occurring daily, lasting twenty minutes in duration. She testified that over the prior four years she had sought physical therapy with mobilization. During a January 2020 VA muscle injury examination, the Veteran reported chest wall pain. The examiner reported the following: Veteran reports onset of symptoms in 2002; she developed persistent cough that lasted three months; she developed pain to the left side of ribs off and on. Over time the pain became persistent; she was seen [with] complaints of symptoms and tested for heart condition; test result was normal and the heart was ruled out. She was diagnosed with costochondritis in 2002. She has continued to have the pain ever since and progressively worse; she now has a constant dull pain to the second and third left ribs and a sharp pain with laughing, coughing, sneezing or lifting that radiate[s] all the way to the back and shoulder area. The sharp pain is also noticeable with exercise activity and even just taking a deep breath or reaching to pull the side belt or reaching behind. Veteran also reports occasional spasm. She has occasional flare ups of symptoms at least once a month; the pain is more severe than usual [when] it flares-up with severe spasms last 20-30 seconds making it difficult to move or perform any strenuous activities. In 2008, she was seen at UT San Antonio [with] complaints of flare up of symptoms and was treated. The pain makes it difficult to sleep at night and keeps her awake throughout the night; she wakes up at least five times to reposition self. Sometimes she cannot get out of bed and has to use headboard to get out of bed. Upon physical examination, the Veteran’s muscle strength was normal and there was no evidence of muscle atrophy. However, the VA examiner noted fatigue and pain with localized tenderness and pain to left external oblique with palpation. The VA examiner confirmed a diagnosis of costochondritis and characterized it as a penetrating muscle injury, presumably in error. As to functional impact, the VA examiner indicated that her costochondritis results in decreased ability in performing activities that require reaching pulling, climbing, lifting or bending especially with repetitive or prolonged use/activities. In a September 2020 addendum opinion, the VA examiner opined that Costochondritis, also known as chest wall pain, costosternal syndrome, or costosternal chondrodynia is an acute and often temporary inflammation of the costal cartilage, the structure that connects each rib to the sternum at the costosternal joint. It is not a muscle injury. However, veteran reports occasional spasm to the chest wall consistent with muscle groups: GROUP XIX, GROUP XX. GROUP XXI. There is no loss of power, weakness, lowered threshold of fatigue, impairment of coordination, and uncertainty of movement; just pain. Veteran would have a decrease in ability in performing activities that require reaching pulling, climbing, lifting or bending especially with repetitive or prolonged use/activity. However, there is not enough evidence to support veteran's complaints of shortness of breath, mechanical asymmetry, and trigger point injection to assist with rib mobilization results in functional impairment of the lungs. Veteran would have increased difficulties in performing activities that require reaching pulling, climbing, lifting or bending especially with repetitive or prolonged use/activity during flare ups. After resolving doubt in the Veteran’s favor, the Board finds that the symptoms associated with the Veteran’s costochondritis more closely approximate a 10 percent disability rating (productive of a moderate muscle injury). The evidence of record reflects that the Veteran’s costochondritis has manifested by complaints of chest wall muscle soreness, shortness of breath, first rib tightness, and chest pain. The Veteran’s condition result in functional impairment which is, at worse, moderate. However, there are no other cardinal signs and symptoms of a muscle disability such a loss of power, weakness, lowered threshold of fatigue, impairment of coordination, and uncertainty of movement. During the appeal period, the evidence reveals that the Veteran complained of fatigue and pain in the VA examinations and VA treatment records. However, there is no evidence of loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or wound of muscle without debridement or infection. Furthermore, there was no evidence of intercostal retractions, deformities, or fractured rib or murmur associated with her service-connected costochondritis. See VA treatment record dated April 2007 and April 2009. A preponderance of the evidence is against a finding that the Veteran’s symptoms are more analogous to a moderately-severe disability of the respiratory muscles. 38 C.F.R. § 4.73, DC 5321. There has been no objective evidence of loss of deep fascia, muscle substance, or normal firm resistance of muscles, positive impairment of strength and endurance, or other signs or symptoms of similar severity to those listed in the findings for a moderately severe muscle injury. Other than the fatigue and pain resulting in moderate functional loss, there were no other objective abnormalities indicated on the VA examinations or in the treatment records. The Board therefore finds the overall disability picture for the Veteran’s costochondritis does not more closely approximate a 20 percent rating for moderately severe or severe muscle injury under the applicable diagnostic code. The Board has also considered other potentially applicable diagnostic codes; to include Diagnostic Code 5297, which provides ratings for removal of the ribs. As there is no lay or medical evidence of removal of the ribs associated with the service-connected costochondritis, the Board finds that Diagnostic Code 5297 does not apply. Moreover, as pain and respiratory function, rather than limitation of motion, are the Veteran’s primary symptoms, there is no suggestion in the evidence that the Veteran could receive more than a 10 percent rating under other diagnostic codes applicable to musculoskeletal disabilities, which provide ratings based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a. (Continued on the next page)   Accordingly, the Board finds that an initial 10 percent rating, but no higher, is warranted for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.40, 4.56, 4.73, DC 5321. A.P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.