Citation Nr: 21027731 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-51 513 DATE: May 6, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right and left rib resection is denied. FINDING OF FACT The medical evidence establishes that the Veteran underwent rib resection surgeries in 2007 and 2008 resulting in the removal of two ribs. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for right and left rib resection are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Code (DC) 5297. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1993 to August 2014. In July 2019, the Veteran testified at a Board hearing. The transcript is of record. In November 2020, the Board remanded the case for further development, which is completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for right and left rib resection The Veteran contends she is entitled to an increased rating due to the removal of two ribs. A November 2014 rating decision granted service connection for status post right and left rib resection under DC 5297 at a 10 percent rating effective August 29, 2014. Recently, a February 2021 rating decision increased the Veteran's rating to 20 percent effective August 29, 2014. 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. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under DC 5297 for ribs, removal of, a 10 percent rating is warranted for the removal or one or resection of two or more ribs without regeneration. For the removal of two ribs, a 20 percent rating is warranted, and for the removal of three or four ribs, a 30 percent rating is warranted. A 40 percent rating requires removal of five or six ribs and a 50 percent rating for more than six ribs. Note (1): The rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy, or injuries of pleural cavity. Note (2): However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. Review of the medical evidence reveals that the Veteran underwent rib resection surgeries in 2007 and 2008. The December 2018 treatment notes report that the Veteran's pain, tingling and numbness of the right arm improved significantly after her surgeries. The Veteran attended a VA examination in January 2020 and reported symptoms of tingling, numbness, and pain in the hands resulting in a decreased ability to raise her arms. The examiner found no muscle injuries and no history of herniation, rhabdomyolysis, or compartment syndrome. The physical examination revealed normal muscle strength with no atrophy. Functionally, the examiner noted difficulty and increased pain with fine motor movements such as typing, writing, and gripping items. In February 2021 an opinion was obtained to provide clarification of the medical findings. The examiner reviewed the medical records, to include the surgical records. Based on the review of the records, the examiner opined that it is at least as likely as not that the Veteran's rib resection surgeries in 2007 and 2008 included the removal of two ribs. At the hearing, the Veteran testified that she had two ribs removed, one during each surgery. She also provided a statement arguing that an evaluation of 20 percent was warranted due to the removal of two ribs and described numbness on the back side of both arms in the armpit area and pain that causes her fingers to lock up. In order for the Veteran to warrant a rating in excess of 20 percent, the evidence must establish the removal of three or more ribs. In this case, the evidence does not establish, nor does the Veteran contend that more than two ribs were removed. As such, the Board finds that a rating in excess of 20 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.