Citation Nr: 21040301 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-39 018 DATE: July 3, 2021 ORDER A rating in excess of 10 percent for chest wall pain since September 17, 2013, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's service-connected chest wall pain, affecting muscle group XIX, is manifested by a moderate injury. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chest wall pain have not been 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, who is the appellant in this case, had service from March 1979 to December 1984. In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in August 2018, and remanded these issues for additional development in order to request Social Security Administration records and schedule a VA examination. After the development was completed, the case returned to the Board for further appellate review. 1. A rating in excess of 10 percent for chest wall pain. The Veteran seeks a higher rating is warranted for his service-connected chest wall pain. This disability is currently rated 10 percent under 38 C.F.R. § 4.73, DC 5399-5319. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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). After a full review of the record, and as discussed below, the Board concludes that a rating in excess of 10 percent for chest wall pain is not warranted. The August 2014 VA examination showed continued symptoms of intermittent discomfort in the left lateral chest area, non-exertional, with no apparent precipitating causes. The Veteran told the VA examiner that these episodes occur at unpredictable intervals, about 3-4 times a month and usually last about 30 to 40 minutes. These symptoms were treated with nothing in particular. His medical records show he had a variety of tests for possible cardiac causes of his left chest pains, but they have not shown any cardiac cause of his symptoms. His VA treatment records show diagnosis of atypical chest pain. Regarding "torn abdominal muscles," the Veteran reported that his primary doctor mentioned to him previously that perhaps a torn muscle could have been the cause of some of his symptoms, but the torn muscle might have healed. On physical examination, there were no objective abnormalities noted in his abdominal muscles. There were no other significant diagnostic test findings or results. The Veteran testified before the undersigned in August 2017. He endorsed chest wall pain with symptoms of chest tightness and feeling like he is having a heart attack. He said the chest pain slightly takes his breath away until is subsides, which affects his ability to work because he has to wait until the pain passes. He also endorsed acid reflux symptoms, including sharp pain that moves up from the center of his chest and heartburn. On VA examination in July 2019, the Veteran endorsed continued left side, intermittent chest pain, non-exertional with no apparent precipitating causes. The Veteran also reported he is unable to work due to the unpredictability and severity of the intermittent chest area pain that is resolved with rest. The VA examiner noted a 2008 diagnosis for chest wall pain, but did not find a current muscle group injury. The VA examiner found the chest wall pain did not impact his ability to work. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his chest wall pain. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptomatology relating to his chest wall pain because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability relating such to the appropriate DCs. The Board finds that the question of the severity of his chest wall pain is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Accordingly, the Board finds that the medical examination opinions and findings are of greater probative value than the Veteran's allegations regarding the severity of his chest wall pain. The Veteran does not meet the DC 5319 criteria for a rating in excess of 10 percent because he has not been shown to have at least moderately severe muscle disability. The Board has also considered whether higher or separate Diagnostic Codes are applicable. The evidence of record indicates that the Veteran's service-connected chest wall pain is primarily manifested by moderate muscle disability. There is no medical or lay evidence of other muscle group symptoms that would not result in the pyramiding of other related Diagnostic Codes. The Board has considered whether higher ratings are available but find none are warranted. At no time during the pendency of this appeal has the Veteran's left chest wall pain been shown to result in a moderately severe disability, including an inability to keep up with work requirements. Objectively, the Veteran's chest wall pain does not meet the criteria for a moderately severe muscle disability where entrance and (if present) exit scars indicate a 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. The Veteran's chest wall pain symptoms are clearly accounted for in the 10 percent rating pursuant to DC 5319. Based on the foregoing, the Board concludes that a rating in excess of 10 percent for a chest wall pain is not warranted for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran seeks a TDIU. The Veteran has the following disabilities that are service connected: tinnitus (rated 10 percent, since December 2008); episodic chest wall pain (rated 10 percent, since September 2013). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). He testified before the undersigned in August 2017 that he cannot work due to symptomatology associated with service-connected chest wall pain, including taking breaks and anxiety related to the pain. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matter is REMANDED for the following action: (Continued on the next page) 1. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.