Citation Nr: 22012208 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 10-42 853 DATE: March 2, 2022 ORDER Entitlement to an increased disability evaluation for lumbar retrolisthesis, myositis, and intervertebral disc syndrome (IVDS), rated as 20 percent disabling for the rating period prior to February 7, 2019, is denied. Entitlement to an increased disability evaluation for lumbar retrolisthesis, myositis, and IVDS, rated as 40 percent disabling for the rating period since February 7, 2019, is denied. Entitlement to an increased disability evaluation for costochondritis, currently rated as noncompensable, is denied. FINDINGS OF FACT 1. For the rating period prior to February 7, 2019, the Veteran's lumbar retrolisthesis, myositis, and IVDS is manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 35 degrees; the Veteran does not have incapacitating episodes and no additional functional loss. 2. For the rating period since February 7, 2019, the Veteran's lumbar retrolisthesis, myositis, and IVDS is manifested by pain and forward flexion of the thoracolumbar spine to 10 degrees, without ankylosis or its equivalent during a flare-up; the Veteran does not have incapacitating episodes or additional functional loss. 3. The Veteran's costochondritis is manifested by no more than slight impairment of the muscles of respiration; there is no functional loss due to muscle damage, no cardinal signs or symptoms of muscle disability, and no atrophy or impairment of function shown. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for lumbar retrolisthesis, myositis, and IVDS have not been met for the rating period prior to February 7, 2019. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5021, 5235 5243 (2021). 2. The criteria for a disability evaluation in excess of 40 percent for lumbar retrolisthesis, myositis, and IVDS have not been met for the rating period since February 7, 2019. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2020. 3. The criteria for an initial compensable rating for costochondritis have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.56, 4.73, Diagnostic Code 5399 5321 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1998 to September 1998 and February 2003 to January 2004. The Veteran also had service in the Army National Guard and Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in an October 2020 rating decision, the Veteran was awarded an increased, 40 percent disability evaluation for his service-connected lumbar spine disability, and his myositis of the lumbar spine was recharacterized as lumbar retrolisthesis, myositis, and IVDS, effective February 7, 2019. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2015, November 2019, and October 2021, the Board remanded the Veteran's claims for increased disability evaluations for lumbar retrolisthesis, myositis, and IVDS and costochondritis to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in December 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201, 5269). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for lumbar retrolisthesis, myositis, and intervertebral disc syndrome (IVDS), rated as 20 percent disabling for the rating period prior to February 7, 2019. 2. Entitlement to an increased disability evaluation for lumbar retrolisthesis, myositis, and IVDS, rated as 40 percent disabling for the rating period since February 7, 2019. The Veteran is assigned a 20 percent disability rating for his lumbar retrolisthesis, myositis, and IVDS, for the rating period prior to February 7, 2019 and a 40 percent disability evaluation thereafter. For the rating period prior to February 7, 2019, the Veteran was rated pursuant to the provisions of Diagnostic Codes 5021 5237, and thereafter he was rated pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243, following the diagnosis of intervertebral disc disease (IVDS). Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). As previously noted, the Veteran is rated for his lumbar retrolisthesis, myositis, and IVDS for the rating period prior to February 7, 2019 pursuant to Diagnostic Code 5021 5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diagnostic Code 5021 provides that myositis is to be evaluated as degenerative arthritis based on limitation of motion of the affected parts; and Diagnostic Code 5237 provides ratings for lumbar strain. As will be discussed below, this has no practical effect on the disability rating assigned. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to higher disability ratings because his current disability evaluations do not property account for the severity of his symptoms. Prior to February 7, 2019 After a review of all the evidence, the Board finds that, for the rating period prior to February 7, 2019, the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for his service-connected lumbar retrolisthesis, myositis, and IVDS. At the August 2009 VA examination, the Veteran had forward flexion to 45 degrees, with extension to 8 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. There was muscle spasm and guarding, without abnormal gait or spinal contour. There was pain on motion and tenderness on palpation, but there was no evidence of muscle atrophy or weakness; there was also no evidence of ankylosis. The Veteran reported pain on motion and decreased range of motion that caused functional loss. Repetitive use testing did not show an additional loss of range of motion. The VA examiner found that the Veteran's functional loss due to flare-ups or repeated use included pain on motion. The VA examiner noted that the Veteran does not have intervertebral disc syndrome or experience incapacitating episodes. At the December 2013 VA examination, the Veteran had flexion to 60 degrees, extension to 15 degrees, lateral flexion to 20 degrees on the right and 15 degrees on the left, and lateral rotation to 20 degrees on the right and 15 degrees on the left. Pain was noted at 35 degrees flexion and 5 degrees extension, with lateral flexion and rotation reduced by 10 degrees in both directions. The Veteran had pain on movement and decreased range of motion resulting in functional loss. The Veteran had spasms, but not guarding; his spasms did not result in abnormal gait or spinal contour; he experienced tenderness to palpation, but did not have muscle atrophy or ankylosis. Muscle strength and reflexes were normal. The VA examiner indicated that the Veteran did not have IVDS or experience incapacitating episodes. The VA examiner noted that there were no signs of weakness, fatigability, incoordination, or instability on examination. The examination report reflects that the Veteran uses a brace, and the VA examiner noted that the Veteran had pain in all planes of motion and that the Veteran reported that he cannot work during a flare-up. At the April 2017 VA examination, the Veteran had flexion to 40 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The Veteran had pain on movement resulting in functional loss, but did not have pain on weight-bearing. The Veteran did not experience guarding, spasm, tenderness to palpation, or muscle atrophy. Muscle strength and reflexes were normal. There was no evidence of ankylosis. The VA examiner indicated that the Veteran did not have IVDS or experience incapacitating episodes. The VA examination report did not reflect that the Veteran had signs of weakness, fatigability, incoordination, or instability on examination. The VA examiner acknowledged that pain could significantly limit functional ability during flare-ups, and noted that the Veteran reported that the Veteran's functional loss consisted of pain on movement and impeded prolonged sitting or standing. The Veteran reported regular use of a brace, with occasional use of a cane. In August 2017, the Veteran had flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The Veteran denied experiencing flare-ups, but reported experiencing decreased range of motion and decreased ability to ambulate with repetitive use. The VA examiner noted that the Veteran's pain on motion caused functional loss. The Veteran experienced spasms, but not guarding; his spasms did not result in abnormal gait or spinal contour. There was no evidence of tenderness to palpation, muscle atrophy, or ankylosis. Muscle strength and reflexes were normal. The VA examiner indicated that the Veteran did not have IVDS or experience incapacitating episodes. The examination report reflects that the Veteran uses a brace. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain, and that prolonged sitting and lifting heavy objects were discouraged. The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating for this period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine, or its equivalent due to functional loss. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment. The Board observes that the VA examiners consistently indicated that the Veteran's functional loss was limited to decreased range of motion and pain on motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/non weight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Board points out that the Veteran did not have intervertebral disc syndrome during this rating period. Moreover, the Veteran's VA examination reports reflect that the Veteran does not experience incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of his service-connected degenerative disc disease of the lumbar spine and degenerative arthritis of the thoracic spine. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits, and as such, it is not for consideration here As such, the Board finds that the evidence of record reveals manifestations consistent with the currently assigned 20 percent evaluation for the rating period prior to February 7, 2019 for lumbar retrolisthesis, myositis, and IVDS. Since February 7, 2019 After a review of all the evidence, the Board finds that the Veteran's disability picture does not warrant a disability evaluation in excess of the currently assigned 40 percent disability rating for the rating period since February 7, 2019. In this regard, the Board notes that the February 2019 Disability Benefits Questionnaire (DBQ), completed by the Veteran's private physician, reflects that the Veteran had flexion to 20 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 10 degrees bilaterally; he had pain on motion in all planes of motion. The physician noted that there was pain on motion, weakness, and swelling that caused functional loss. The Veteran had spasms and guarding resulting in abnormal gait and spinal contour. The report indicated that the Veteran reported that his flare-ups impede his ability to work, and that repetitive movements increased his pain and reduced range of motion. The physician found that the Veteran has intervertebral disc syndrome, and that he experienced incapacitating episodes for at least 2 weeks, but less than 4 weeks, in the previous 12 months. The physician also noted that the Veteran used a brace daily, and occasionally required a cane to ambulate. At the August 2020 VA examination, the Veteran had flexion to 10 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally; he had pain on motion and on weight-bearing, but the Veteran did not experience reduced range of motion during repetitive use or flare-ups. The VA examiner noted that decreased range of motion and pain on motion that caused functional loss; the VA examiner noted that the Veteran reported that flare-ups prevented the Veteran from engaging in prolonged walking. The Veteran had tenderness to palpation, as well as spasm and guarding resulting in abnormal gait and spinal contour, but that the Veteran did not have muscle atrophy or ankylosis. The VA examiner noted that the Veteran could not engage in prolonged walking, sitting, or standing, and could not squat due to pain. The VA examiner also noted that the Veteran occasionally used a cane to ambulate; the Veteran wore a brace daily. Upon testing, muscle strength was full, and reflexed were normal. The VA examiner indicated that the Veteran had intervertebral disc syndrome, but did not experience incapacitating episodes. The Board finds that the criteria for a disability rating in excess of 40 percent have not been met or more nearly approximated. As noted, the evidence does not demonstrate the presence of ankylosis or its equivalent during a flare-up. The Board has considered the lay evidence of pain. However, that evidence does not establish that there is ankylosis as required for a higher rating. As previously noted, throughout the rating period on appeal, the Veteran had flexion to no worse than 10 degrees on repetitive use testing, and that other planes of motion did not show decreased range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2021). The Board has also considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion, and there is no evidence that his pain is the equivalent of ankylosis. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Chavis v. McDonough, Vet. App., No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").). To the extent that the Veteran reports limitations on his ability to engage in prolonged sitting, standing, or walking, as well as difficulty lifting objects, the Board finds that the Veteran's flare-ups, especially in light of their frequency, do not show that the evidence more nearly approximates a disability picture consistent with ankylosis. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 40 percent disability rating at any point during the rating period on appeal. The Board acknowledges that the Veteran has intervertebral disc syndrome. However, to the extent that the Veteran reported experiencing incapacitating episodes to the physician that completed his February 2019 DBQ, the Board observes that the DBQ indicates that the Veteran experienced incapacitating episodes at least 2 weeks, but less than 4 weeks, of the prior year, which is consistent with a 20 percent disability evaluation. Nevertheless, the Board notes that that Veteran's VA treatment records and VA examination reports do not reflect that the Veteran's lumbar retrolisthesis, myositis, and IVDS has been productive of incapacitating episodes at any time during the rating period on appeal. Thus, a higher rating based on IVDS is not warranted. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits. Therefore, the Board finds that the evidence does not support a disability evaluation in excess of 40 percent for the Veteran's service-connected lumbar retrolisthesis, myositis, and IVDS. 3. Entitlement to an increased disability evaluation for costochondritis, currently rated as noncompensable. The Veteran's costochondritis is assigned a noncompensable disability rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5399 5321. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that an unlisted muscle injury is the service-connected disorder, and it is rated as if the residual condition is a muscle injury of Muscle Group XXI, under Diagnostic Code 5321. Diagnostic Code 5321 pertains to the functioning of muscles involved in respiration and the thoracic muscle group. Under Diagnostic Code 5321, a noncompensable (0 percent) rating is assigned for slight functioning impairment of the thoracic muscles. A 10 percent rating for moderate functioning impairment of the thoracic muscle, and a maximum 20 percent rating for severe or moderately severe functioning impairment of the thoracic muscles. Id. Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. See generally 38 C.F.R. § 4.73. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile. Id. After a review of all of the evidence, the Board finds that a compensable rating is not warranted for the Veteran's costochondritis. The Board notes that the VA examination reports indicate that the diagnosis was based on a history of subjective chest wall and thoracic pain following a lifting injury in 2003. The August 2009, December 2013, April 2017, September 2017, and March 2021 VA examination reports that the Veteran initially developed costochondritis in 2003, and experiences occasional recurrences. Radiology reports reflect chest x-rays are normal. The December 2013 VA examination report indicates that the Veteran's costochondritis affects both sides of Group XXI, the muscles of respiration, thoracic muscle group; at the September 2017 VA examination, the Veteran described experiencing occasional fatigue-pain The most recent, March 2021 VA examination report reflects that the Veteran does not experience any signs or symptoms of a muscle injury. Upon examination, the Veteran did not have a scar, cardinal signs of muscle disability, muscle atrophy, or functional impairment; his costochondritis had no effect on his muscle substance and function. Further, while the VA examiners noted that the Veteran reports experiencing occasional fatigue and pain of Muscle Group XXI, there has been no finding of any effect on muscle substance or function, and he did not have any of the cardinal signs and symptoms of muscle disability. In short, the Board finds that this symptom is adequately compensated and most closely approximates the criteria for "slight" impairment of the muscles of respiration. Accordingly, based on the evidence of record, the Board finds that the Veteran's costochondritis is properly described as slight under the criteria of Diagnostic Code 5321 for thoracic and respiratory muscle injuries. As such, the evidence does not support an increased, compensable rating for costochondritis. 4. Extraschedular considerations. Here, the Veteran contends that his service-connected costochondritis and lumbar retrolisthesis, myositis, and IVDS warrant higher ratings on an extraschedular basis. Based on the evidence, the Board disagrees. Generally, disability rating are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95 The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Pursuant to the October 2021 Board remand, the AOJ requested an opinion from the Director, Compensation Service, as to whether extraschedular evaluations should be considered with regard to the Veteran's claims of entitlement to increased disability evaluations for his service-connected costochondritis and lumbar retrolisthesis, myositis, and IVDS. In the request for an opinion, the AOJ's Service Center Manager indicated that the Veteran's VA examination reports, VA treatment records, and vocational rehabilitation record, as well as various lay statements, were reviewed. The Service Center Manager found that the available evidence of record does not support the Veteran's contentions that his service-connected costochondritis and lumbar retrolisthesis, myositis, and IVDS warrant increased ratings on an extraschedular basis. The Service Center Manager acknowledged that the Veteran's representative argued that extraschedular consideration is warranted because these disabilities cause marked interference with employment, but pointed out that the Veteran's VA treatment records reflect continued employment a mail carrier and that the Veteran had been receiving VR&E education benefits for MA in Psychology, but that the Veteran requested in discontinuance status in 2018. The Service Center Manager also noted that VA treatment records show that the Veteran served in National Guard until 2018, and that the Veteran met the criteria for a combined, 100 percent schedular effective July 22, 2021. The Service Center Manager concluded that the evidence did not demonstrate a loss of earning capacity due to the Veteran's costochondritis and lumbar retrolisthesis, myositis, and IVDS. In December 2021, the Executive Director, Compensation Service, provided her opinion as to whether extraschedular consideration of the Veteran's claims for increased disability evaluations on extraschedular bases are warranted. The Director acknowledged that extraschedular evaluations are assigned where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization such that it renders application of regular rating schedular standards impractical. The Director noted that, following a review of the record, there is no evidence of unusual or exceptional disability pattern demonstrated that would render application of the regular rating criteria as impractical. She stated that, after considering all relevant evidence; including, but not limited to the Veteran's medical history and the Regional Office's summary of evidence, the Executive Director of Compensation Service determined the available medical evidence does not support increased disability evaluations on an extraschedular basis for the Veteran's service-connected costochondritis or for the Veteran's lumbar retrolisthesis, myositis, and IVDS, and denied the Veteran's request for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Based on the evidence of record, the Board finds that the Veteran's costochondritis and lumbar retrolisthesis, myositis, and IVDS do not present an exceptional or unusual disability picture such that it renders application of the regular rating schedule impractical. The Veteran has not demonstrated that his costochondritis and/or lumbar retrolisthesis, myositis, and IVDS factors interfere with his employment or require frequent periods of hospitalization. Therefore, the Board finds that the Veteran's claims for increased disability evaluations for his service-connected costochondritis and lumbar retrolisthesis, myositis, and IVDS on an extraschedular basis must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.