Citation Nr: 22017947 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-53 997 DATE: March 27, 2022 ORDER Entitlement to service connection for tinnitus is granted. For the entire period on appeal, a 10 percent initial disability rating, but no higher, for costochondritis is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an increased disability rating for residuals of left hip stress fracture is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, her currently diagnosed tinnitus had its onset during active military service. 2. The Veteran's costochondritis causes no more than moderate muscle impairment productive primarily of pain/fatigue. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial 10 percent disability rating, but no higher, for the service-connected costochondritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.56, 4.73, Diagnostic Codes (DC) 5297, 5321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for varicose vein condition, residuals stress fracture left hip, costochondritis, residual scars status post venous stripping; and denied service connection for bilateral hearing loss, tinnitus, refractive error bilateral eyes, right hip condition, and chronic headaches. The Veteran timely filed a notice of disagreement (NOD), appealing the left hip, costochondritis, hearing loss, and tinnitus. The Veteran noted disagreement with PTSD and PTSD related sleep disorder and stress-induced acid reflux, but no claims had been made for those disabilities as of that time. In November 2018, the Veteran's left hip disability was increased to 10 percent disabling, effective November 7, 2016. Because less than the maximum available benefit for a schedular rating was awarded, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). In September 2019, the Veteran submitted claims for several disabilities, including an increased rating for her left hip disability and costochondritis. A November 2019 rating decision denied an increased rating for both disabilities. A Board video-conference hearing was held in March 2020 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Initial Matter The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Indeed, the Board recognizes that the issue of unemployability was raised through the submission of three separate VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, the Veteran requested a hearing to address her claim for a TDIU and thus the Board will not consider the claim in this decision. Service Connection Laws and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Tinnitus (as an organic disease of nervous system) is considered a "chronic" disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran contends that her tinnitus is related to military noise exposure in conjunction with her duties in service. Viewing the evidence in the light most favorable to the Veteran, and the providing the benefit of the doubt, the Board finds the evidence is at least in equipoise as to whether the Veteran's tinnitus began in service and was continuous since service. Thus, service connection is warranted. First, the Veteran testified in her March 2020 hearing that she suffers from tinnitus. See March 2020 Hearing Transcript. As tinnitus is a disability capable of lay observation and diagnosis, the Board finds the Veteran has a diagnosis of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Accordingly, the first element for service connection has been met. Next, the Board concedes exposure to military acoustic trauma while in service. The Veteran provided competent and credible lay statements regarding experiencing military noise, to include on the flight line, with weapons, and ordinance testing. Additionally, the Veteran complained of tinnitus while in service. According to a May 2010 service treatment record (STR), the Veteran reported bilateral periodic tinnitus, with an onset of 3 to 4 years prior. She separated from active service in 2011. Therefore, the second element for service connection has been met. The Board has duly considered the Veteran's lay statements of tinnitus symptoms in service and since service. See March 2020 Hearing Transcript. The Board has no reason to doubt the credibility of those lay reports. Although a lay person (including a lay adjudicator) is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay Veteran and the lay adjudicator to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of the tinnitus symptoms. See Kahana, 24 Vet. App. at 438 (Lance, J., concurring) (noting that "any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion"). Accordingly, the Board finds that, with resolution of any doubt in the Veteran's favor, her credible statements of in-service noise exposure and the continuity of symptomatology since separation from service warrant service connection for tinnitus on a presumptive basis. 38 C.F.R. § 3.303(b). Increased Disability Rating Pertinent Laws and Analysis Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38C.F.R. §4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, DC 5297 and 5399-5321 were not changed. The Veteran's service-connected costochondritis is rated as noncompensable, effective July 29, 2013, under DC 5399-5321. Costochondritis is not listed in the rating schedule. Where a particular disability 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). Here, because there is no specific DC for costochondritis, the Veteran's condition was initially rated by analogy under DC 5399-5321, which governs the muscles of respiration. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Costochondritis is an inflammation of the cartilage that connects the ribs to the breastbone (i.e., the costochondral joints). See MedlinePlus, U.S. National Library of Medicine. Accordingly, 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. Under DC 5297, which applies to the removal of ribs, a 10 percent disability rating is warranted if there is a removal of one rib or resection of two or more ribs without regeneration. A 20 percent rating requires removal of two ribs. Removal of three or four ribs warrants a 30 percent rating. A 40 percent rating is assigned for removal of five or six ribs. Removal of more than six ribs warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5297. Under DC 5321, which applies to the thoracic muscle group XXI, a noncompensable (zero percent) disability rating is assigned for slight muscle disability, a 10 percent rating is assigned for moderate disability, a 20 percent rating is assigned for a moderately severe or severe disability. 38 C.F.R. § 4.73, DC 5321. The factors for determining whether muscle disability is slight, moderate, 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 slight disability of muscles is defined as a simple wound of muscle without debridement or infection. STRs will show a superficial wound with brief treatment and return to duty healing with good functional results and no cardinal signs or symptoms of muscle disability. There will be minimal scarring and no evidence of facial defect, atrophy, or impaired tonus. Also, no impairment of function or retained metallic fragments retained will be present. 38 C.F.R. § 4.56(d)(1). A moderate disability of muscles is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings will include entrance and (if present) exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone 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 disability of muscles is defined as a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. Service department records should show hospitalization for a prolonged period for treatment of wound. Objective findings will include entrance and (if present) exit scars indicating track of missile through one or more muscle groups along with indications on palpation of exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of the muscles is defined as a 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, sloughing of soft parts, and intramuscular binding and scarring. Objective findings will include ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies; (b) adhesion of the scar; (c) diminished muscle excitability on 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; or (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). Turning to the evidence, the Veteran was provided a VA examination in May 2014 where she complained of pain in the left lower sternal-chondral junction. There was no specific injury. The examiner identified two different types of pain affecting the area: one was a sharp very short duration pain; and the second was a discomfort type of pain after physical activities. The Veteran indicated worry because of the proximity of the deformity to the heart. She reported taking ibuprofen as needed. The examiner noted there were no cardinal signs of muscle injuries, with respiratory muscles strength 5/5. The bony prominence in the lower left sternal area measures 7.0 cm. long and 2.5 cm. wide. There was no functional impact. Another VA examination was provided in February 2018. The Veteran stated that she saw an orthopedic surgeon for chest pain related issues and reported that she was found to have a "twisted breastbone and extra cartilage." She was offered surgery that would have entailed resection of the sternum and reattachment of the pectoralis major muscles, but she elected to defer the surgery due to having infants and toddlers at the time. She reported the condition had stayed the same, which manifested as chest pain along the lower half of the sternum along the lateral aspects, with intermittent dull to sharp pain which felt as she had a "corset on constantly." The Veteran stated increased physical activity such as lifting exacerbated the pain. Rowing motions made the pain particularly worse. She reported no current treatment. The examiner found there were no cardinal signs and/or symptoms attributable to muscle injuries with normal strength. Pertinent physical findings were torsional deformity of distal sternum on physical examination with tenderness along costal cartilages. Functional loss included difficulty with heavy lifting. The examiner explained that since the condition affected cartilage and not a muscle, no muscle groups were indicated as affected. A November 2019 VA examination report noted her costochondritis was quiescent on examination and was not impairing functional activity. In her March 2020 hearing, the Veteran testified she had intermittent pain in her chest such that "I actually feel like I'm having a heart attack but it's like a spasm," and was exacerbated by asthma attacks which made it feel like she had on a corset, described as tightness that prevented her from relaxing. She also described her inability to run, put her hands up or pull down, or pick up things like her children, and weakness in her arms. She also stated that when she had a spasm she must stop until it subsides. The Veteran's costochondritis is currently rated under DC 5321, applicable to muscles of respiration, which, in this case, the Board finds is the most appropriate code. In evaluating this claim, the Board initially notes that, because the Veteran's disability is assigned by analogy to a muscle injury, the exact characteristics of a muscle injury, as described in the rating criteria (i.e., penetrating wounds) are not adequate descriptors of the Veteran's overall disability picture. Nevertheless, the Board is mindful of 38 C.F.R. § 4.40, which states that, with respect to disabilities of the musculoskeletal system, "functional loss... may be due to pain." DeLuca, 8 Vet. App. at 204. First, the Board finds that the May 2014 and February 2018 VA examiners did not address the Veteran's lay statements of record, including statements within those examinations regarding pain and functional loss. The Board notes that the Veteran is competent to report an observable symptom such as pain. In this context, while no associated bone or joint abnormalities have been identified as related to the Veteran's costochondritis, the evidence reflects that during the period on appeal she consistently complained of pain and fatigue, which are cardinal signs and symptoms of muscle disability, and these symptoms are exacerbated with movement. She also indicated that she experienced flare-ups that resulted in functional impairment, especially during physical activity and asthma attacks. Given the consistent complaints of pain and fatigue, and after resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's service-connected disability has more nearly approximated a moderate disability throughout the pendency of this appeal. Accordingly, a 10 percent rating is warranted under DC 5321. A rating in excess of 10 percent is not warranted under DC 5321 because the evidence does not show symptoms that are consistent with a moderately severe or severe impairment, including prolonged treatment or hospitalization during service or evidence of impaired respiratory function or decreased strength and endurance in the upper extremities. In this regard, the Board notes the Veteran has consistently reported pain and fatigue with her condition and additionally asserted that she experienced weakness as a result of her costochondritis. However, during the May 2014 and February 2018 VA examinations, the Veteran's muscle strength tested normal. A complete review of the lay and medical evidence of record shows that her costochondritis manifested by aching pain that impaired her ability to perform certain movements, when present, as opposed to loss of muscle power or strength, or other functional loss in the costochondral junctions or upper extremities. Therefore, the Board finds that the Veteran's costochondritis is moderate, at best, and warrants no more than a 10 percent rating under DC 5321. The Board also considered whether a rating in excess of 10 percent is warranted under other potentially applicable diagnostic codes. As noted above, costochondritis involves the rib and its cartilage. See MedlinePlus, supra. While the Veteran reported that surgery had been recommended, the evidence of record does not show that she ever had a rib removed or resected, meaning that she would not meet the criteria for even a 10 percent rating, much less a 20 percent rating under DC 5297, which requires the removal of at least two ribs. The Board finds that these criteria are not analogous to the Veteran's primary symptom of pain. The Board also considered the application of DC 5003 and 5019 for arthritis or bursitis, respectively; however, there is no evidence of arthritis or bursitis in the Veteran's treatment records, and in any event those disabilities are evaluated based upon limitation of motion of the affected parts. The evidence does not show that the Veteran experiences limitation of motion in any affected area, including her chest and upper extremities, that is related to her costochondritis. Thus, the Board finds that DCs 5003 and 5019 do not assist the Veteran in obtaining a rating higher than 10 percent with respect to her costochondritis. Finally, the Board finds there is no basis for staged rating of the Veteran's costochondritis pursuant to Hart, as the lay and medical evidence shows the Veteran's costochondritis has been consistently manifested by symptoms that more nearly approximate a 10 percent rating throughout the appeal period. Accordingly, resolving any doubt in the Veteran's favor, the Board finds that an initial disability rating of 10 percent, but no higher, for costochondritis is warranted for the entire period on appeal. Finally, neither the Veteran nor her 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, 369-70 (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 Service connection for bilateral hearing loss The Veteran contends that she has hearing loss which is related to military noise exposure in service. The Veteran was provided a VA examination in May 2014 and the audiogram results did not reveal hearing loss disability for VA purposes, as defined under 38 C.F.R. § 3.385. More recently, during the Board hearing, the Veteran testified that her hearing had gotten worse since her previous VA examination. She is competent to report her own hearing difficulty. Thus, there is a possibility that her hearing loss now meets the criteria to establish a disability under VA regulations and as such, re-examination is required. See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007); 38 C.F.R. § 3.327(a). Increased Rating for Left Hip The Veteran seeks a higher rating for her left hip disability. A remand is necessary to provide the Veteran with an updated VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this regard, a VA compensation examination was conducted in November 2019; thereafter, however, the Veteran testified during the March 2020 Board hearing that her left hip is worse than it was when it was evaluated in November 2019. Specifically, the Veteran described difficulties with ambulating, stating "I'm walking, and it doesn't work. My leg just goes out to the side," and "when I get in my car, I'm not able to pick up my left leg to get in the car." In addition, the Board notes that the Veteran has challenged the adequacy of her previous VA examinations regarding her hip. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her bilateral hearing loss. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not that the bilateral hearing loss disability is a result of the Veteran's military service, to include his military noise exposure such as exposure to the flight line, weapons, and ordinance testing. In doing so, specifically address: (i) the January 2003, January 2004, June 2006, September 2008, July 2009, April 2010, May 2010, and September 2010 hearing conservation data within the STRs; and (ii) the Veteran's lay reports, including those in his March 2020 hearing transcript, describing the onset of her hearing loss. A complete rationale for all proffered opinions must be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected residuals of stress fracture of the left hip. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) In so doing, the examiner should consider the lay statements of the Veteran within the March 2020 hearing transcript that her leg will go out to the side and when she gets in her car, she is not able to pick up my left leg to get in the car. 4. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.