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CCK Successfully Argues Against Board Decision Denying Compensable Rating for Costochondritis

CCK Successfully Argues Against Board Decision Denying Compensable Rating for Costochondritis

Summary of the Case

The Veteran served on active duty in the United States Army from October 2001 to July 2004.  In July 2004, the Regional Office (RO) granted service connection for costochondritis with a noncompensable rating.  Three years later, the Veteran sought an increased rating, but was denied in September 2007.  She continued to appeal this decision and consistently reported chest pain, shortness of breath with constant burning, tingling, and stabbing pain, and chest wall muscle soreness.  However, in March 2011, the RO issued a Statement of the Case continuing her noncompensable rating.  The Veteran appealed to the Board of Veterans’ Appeals.

In April 2014, a VA examiner evaluated the Veteran’s costochondritis using a muscle injury Disability Benefits Questionnaire.  The examiner diagnosed her with a non-penetrating muscle injury in muscle group XXI, the thoracic muscle group, and noted normal muscle strength and no evidence of muscular atrophy.  Additionally, the examiner determined that the Veteran had no known pulmonary conditions and that the sporadic costochondrial pain did not significantly limit respiration or chest wall expansion.  In June 2015, the Board issued a decision denying an increased rating for the Veteran’s costochondritis.  However, she appealed this decision to the Court of Appeals for Veterans Claims (CAVC).  In June 2016, the Court issued a joint motion for partial remand in which both parties agreed that the Board provided inadequate reasons or bases for its decision.

In November 2016, the Board issued another decision that denied entitlement to a compensable rating for costochondritis.  In its decision the Board noted that the rating schedule does not include criteria for an evaluation of costochondritis and determined that the condition may be rated analogous to a musculoskeletal disability under 38 CFR § 4.71a or alternatively as a muscle disability under 38 CFR § 4.73a.  Furthermore, the Board concluded that because of the similar anatomical location and symptomatology, the most appropriate diagnostic code (DC) for the condition was DC 5320 for muscle group XX, spinal muscles of the thoracic region.  The Board also considered DC 5297 for removal of ribs, but determined that because no lay or medical evidence demonstrated the removal of the ribs associated with her service-connected costochondritis, that DC did not apply.

CCK Appeals for a Compensable Rating for Costochondritis

CCK successfully appealed to the CAVC the Board decision that denied entitlement to a compensable rating for costochondritis.  CCK argued that the Board misinterpreted and misapplied the law governing ratings by analogy, and failed to meet its heightened reasons or bases duty under Suttman.  Specifically, Suttman states that when, on the basis of the evidence of record, two or more provisions of VA’s rating schedule are potentially applicable to the evaluation of a particular disability, VA must provide reasons or bases for its decision to rate that disability under one such provision rather than another potentially applicable provision.  Importantly, this requirement is heightened where the disability has been rated as an unlisted condition by analogy to another condition. CCK also argued that the Board failed to adequately explain its rejection of the Veteran’s lay statements regarding her symptoms.

Court Agrees with CCK’s Arguments

CCK argued, and the Court agreed, that the Board failed to satisfy its obligation to provide heightened reasons or bases for its determination that DC 5320 is the most appropriate DC for evaluating the Veteran’s unlisted condition, costochondritis, in several regards.  Additionally, the Court noted that the VA examiner identified muscle group XXI as the affected area, not group XX under which the Board rated her.  Here, the Court determined that the Board provided inadequate reasons or bases for determining that costochondritis, a condition that affects the ribs and breastbone, was more appropriately evaluated as a spinal muscle condition rather than a respiratory muscle condition.  Finally, the Court agreed that the Board erred when it required objective evidence to demonstrate entitlement to an increased evaluation for a muscle injury and rejected the Veteran’s lay statements.  Accordingly, the Court remanded the Veteran’s case back to the Board.

To read the Court’s full decision, click here.

Category: Court Wins

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