Citation Nr: 0001382 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 94 - 34 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a compensable rating for residuals of separation of the right ninth and tenth ribs from cartilage, to include traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from January 1952 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1992 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in December 1996, and was Remanded to the RO for additional development of the evidence, to include obtaining current orthopedic and neurologic examinations of the veteran to determine the nature, extent and etiology of any residuals of separation of the right ninth and tenth ribs from cartilage found present. The requested actions have been satisfactorily completed, and the case is now before the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran's claim for a compensable rating for residuals of separation of the right ninth and tenth ribs from cartilage, to include traumatic arthritis, is plausible because an increase in severity is claimed and it is capable of verification. 2. The medical evidence of record establishes that the veteran's service-connected residuals of separation of the right ninth and tenth ribs from cartilage are currently manifested by an irregularity of the right 10th rib along the posterior axillary line suggestive of an old fracture, with no symptoms or physical findings referable to the right rib cage, a full range of back motion, and no disability due to the right rib injury sustained in service. 3. Traumatic arthritis related to separation of the right ninth and tenth ribs from cartilage is not clinically or radiologically demonstrated or diagnosed. CONCLUSIONS OF LAW 1. The veteran's claim for a compensable rating for service- connected residuals of separation of the right ninth and tenth ribs from cartilage is well grounded because it is plausible and capable of verification. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). 2. The criteria for a compensable rating for residuals of separation of the right ninth and tenth ribs from cartilage are not met. 38 U.S.C.A. § 1155, 5107(a) (West 1991), 38 C.F.R. Part 4, §§ 4.7, 4.40, 4.31, 4.40, 4.45, 4.71a, 4.59, Diagnosic Code 5297 (1999). 3. Residuals of separation of the right ninth and tenth ribs from cartilage do not include traumatic arthritis. 38 U.S.C.A. § 1155, 5107(a) (West 1991), 38 C.F.R. Part 4, §§ 4.7, 4.40, 4.31, 4.40, 4.45, 4.71a, 4.59, Diagnostci Code 5297 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant's claim is plausible and is thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased rating is generally well grounded when the appellant indicates that he has suffered an increase in disability and submits evidence in support of his claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Drosky v. Brown, 10 Vet. App. 251 (1997). The Board further finds that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a)(West 1991). In that connection, we note that the RO has obtained available evidence from all sources identified by the veteran, that he has declined a personal hearing, and that he underwent comprehensive VA orthopedic, neurologic, and radiographic examinations in connection with his claim in February 1993, in August 1997 and in October 1998. On appellate review, the Board sees no areas in which further development might be productive. The appellant contends that the RO erred in failing to grant a compensable evaluation for his service-connected residuals of separation of the right ninth and tenth ribs because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the disability at issue is more disabling than currently evaluated; that he now experiences traumatic arthritis as a consequence of his separation of the right ninth and tenth ribs; that he is compelled to wear a back brace; and that the evidence he has submitted supports an increase in his evaluation to at least the next higher level under the provisions of 38 C.F.R. § 4.7 (1999). I. Evidentiary and Procedural History The veteran's service medical records show that in May 1953, he fell and struck his chest and was subsequently seen with complaints of pain on deep inspiration. Although a chest X- ray disclosed no evidence of rib fractures, his chest was strapped. Subsequent complaints of pain in the right chest, anteriorly, were noted, and an entry in August 1953 stated that the veteran had "a separation of ribs from cartilage at about the level of the 8th or 9th rib", without pain, but with a definite slipping of bone from cartilage and a popping sound. No further complaint, treatment, or findings of anterior right chest pain were shown during his remaining period of active service. In a report of medical history prepared by the veteran in connection with his service separation examination, he noted "some ribs pull loose." A summary of defects by the examining physician noted a history of a fall 4 months [previously] with disarticulation of a lower right rib (floating.) The report of service separation examination, conducted in October 1953, noted a disarticulation of [the] cartilaginous junction of [the] 10th rib with [the] 9th rib, anteriorly [sic]. The veteran initially claimed service connection for a rib injury in April 1978, approximately 25 years following final service separation. Service connection for separation of the 9th and 10th ribs from cartilage was granted by rating decision of May 1978, which did not identify the veteran's inservice rib injury as involving the right side. As a consequence, the RO's subsequent rating decisions have either not stated which side of the veteran's chest was affected by his injury, or have incorrectly stated that the injury affected the left side ninth and tenth ribs. Although the veteran has sought a compensable evaluation for his inservice rib injury on numerous occasions, VA examinations, hospital summaries, treatment records, and multiple X-ray studies from October 1963 to December 1991 have consistently reflected no clinical findings which would warrant a compensable evaluation. Rather, the record shows multiple hospitalizations for detoxification at the Substance Abuse Treatment Program (SATP),VAMC, Kansas City; at the VAMC, Topeka; and at the VAMC, Leavenworth. The last final denial of the veteran's claim for a compensable rating for his service-connected residuals of separation of the right ninth and tenth ribs is dated in June 1991. A hospital summary from the VAMC, Kansas City, shows that the veteran was admitted to the SATP from October to November 1990. No treatment was shown for his service-connected disability. The diagnoses at hospital discharge were alcohol dependence, histrionic personality disorder, and seizure disorder. He was treated and stabilized, then transferred to the VAMC, Leavenworth, where he was treated for alcohol dependence, chronic schizophrenia versus organic delusional disorder; history of seizure disorder; and history of arthritis with trochanteric bursitis. He was discharged to the Domiciliary. No treatment or findings associated with his service-connected disability were shown. A VA examination for special monthly pension, received in May 1991, diagnosed alcohol dependence; residual schizophrenia, chronic state; and seizure disorder. A VA hospital summary and treatment notes from the VAMC, Leavenworth, dated from December 1990 to March 1991, show that the veteran was admitted for treatment of alcohol intoxication. No treatment or findings associated with his service-connected disability were shown. In December 1991, the veteran reopened his claim for a compensable rating for his service-connected residuals of separation of the right ninth and tenth ribs by submitting additional evidence. That evidence consisted of Emergency Room treatment notes, dated in August 1991, showing that the veteran ran out of medications two months previously, and offering diagnoses of alcohol abuse, panic disorder, bipolar disorder, neurotic depression, peptic ulcer disease, cirrhosis, and benign positional vertigo. No treatment or findings associated with his service-connected disability were shown. A rating decision of May 1992 denied the veteran's claim for a compensable rating for his service-connected residuals of separation of the right ninth and tenth ribs from cartilage. The veteran appealed that decision. In September 1992, the veteran submitted a statement alleging that he was entitled to a compensable rating for his service- connected residuals of separation of the right ninth and tenth ribs from cartilage, to include traumatic arthritis, alleging additional VA treatment and prescription of multiple [orthopedic] braces. Reports of VA outpatient treatment, dated from September 1991 to March 1992 reflect treatment of the veteran for alcoholism, depression, generalized anxiety disorder, a histrionic personality disorder, a periorbital cyst, arthritis of the left hip, a seizure disorder, possible lumbar radiculopathy, headaches, musculoskeletal low back pain, tardive dyskinesia, and lumbar degenerative joint disease. A VA hospital summary and treatment notes from the VAMC, Kansas City, dated in March 1992, show that the veteran was admitted complaining of anxiety attacks and hearing voices after discontinuing his medication 3 weeks previously. No treatment was shown for his service-connected disability. The diagnoses included alcohol dependence, organic auditory hallucination; generalized anxiety disorder, major depression, a histrionic personality disorder, a seizure disorder, and arthritis. He was discharged to the VAMC, Leavenworth, Substance Abuse Treatment Program. A VA hospital summary and treatment notes, dated from March to April 1992, show that the veteran was admitted on transfer from the VAMC, Kansas City, where he had been treated for depression and detoxification. No treatment or findings associated with his service-connected disability were shown. The diagnoses at hospital discharge included alcohol depression, depression, generalized anxiety disorder, histrionic personality disorder, seizure disorder, degenerative joint disease, and possible tardive dyskinesia. Reports of VA outpatient treatment, dated from April to August 1992 show that in May, June and July 1992, the veteran was fitted for and issued orthopedic braces for mechanical low back pain with lordosis. Electromyographic testing was performed in June 1992 to evaluate the veteran's complaints of low back pain for the past 7 to 8 years, with worsening in the past 3 years. The findings were indicative of mild peripheral neuropathy, and neuropathy of the left peroneal nerve at the fibular head, with no conclusive evidence of left lower extremity radiculopathy. No treatment for his service-connected disability was shown. A VA hospital summary and treatment notes, dated in August 1992, show that the veteran was admitted for evaluation of brief episodes of anterior chest pain over the past few years, not brought on by exertion. It was noted that he had chronic obstructive pulmonary disease (COPD), chronic interstitial pulmonary fibrosis, and old granulomatous disease. A chest X-ray revealed bilateral pulmonary fibrotic changes with no change from the previous chest films or any demonstrable pulmonary infiltrate or consolidation. A cardiac work-up, with stress test and Bruce protocol, was conducted without chest pain and was terminated due to dyspnea. The veteran had no chest pain while hospitalized, and indicated that his chest pain was related to his anxiety. He was given a course of antibiotics and scheduled for follow-up. The diagnoses included chest pain, negative test; chronic low back pain; history of seizure disorder, small airway obstructive defect; history of depression; history of possible tardive dyskinesia; alcohol dependence; and sinusitis. No treatment for his service-connected disability was shown. VA outpatient records dated from September 1992 to May 1993 include a report of CT scan of the lumbar spine in September 1992, which disclosed degenerative changes of the anterior aspect of the lumbosacral spine, and was suggestive of a disc herniation at L4-5. An orthopedic consult showed an impression of chronic low back pain. An incisional biopsy in September 1992 revealed invasive squamous cell carcinoma of the left temple. Other records dated in September 1992 showed cervical/lumbar strain. The veteran's chronic low back pain was diagnosed as secondary to arthritis. Other VA treatment records reflect treatment of the veteran for conditions which included alcoholism, depression, generalized anxiety disorder, acute bronchitis, chronic airway obstruction, a histrionic personality disorder, refractive error of vision, a periorbital cyst, arthritis of the left hip, a seizure disorder, possible lumbar radiculopathy, headaches, a ganglion cyst, musculoskeletal low back pain, tardive dyskinesia, and lumbar degenerative joint disease. In October 1992 he was briefly admitted from the Domiciliary after urinating in another person's room. In December 1992, he filed a claim for a clothing allowance due to his use of a brace for a skeletal rib condition. No treatment or findings associated with his service-connected disability were shown. A report of VA orthopedic examination, conducted in February 1993, cited the veteran's history of falling and separating his 9th and 10th ribs while in service, and his current complaints of left ribcage pain on deep inspiration. X-ray revealed chronic bibasilar interstitial fibrosis of the lungs; and a remote fracture of the ribs, without residuals. The diagnoses included chronic bibasilar interstitial fibrosis of the lungs; and a remote fracture of the ribs, no residuals. In his Substantive Appeal (VA Form 9), received in June 1993, the veteran stated that his appeal for a compensable rating for residuals of separation of the right ninth and tenth ribs included traumatic arthritis associated with that injury. VA outpatient records dated in October and November 1993 show that the veteran continued to be seen in the mental health clinic from September 1992 to May 1993. In November 1993, he was hospitalized because of claims of seizures. No treatment for his service-connected disability was shown. No pertinent diagnoses were shown at hospital discharge. The veteran had brief periods of hospital admission from the domiciliary in April, May and June 1995 for alcohol abuse and for hypoxemia. VA outpatient treatment records dated from November 1994 to April 1997 show that the veteran was seen for complaints involving psychiatric issues; head, neck, and shoulder pain; a brain tumor; general conditioning and mobility enhancement, and a fatty tumor in the ear. No treatment or findings associated with his service-connected disability were shown. A VA hospital summary and treatment notes from the VAMC, Leavenworth, dated in April 1995, show that the veteran was admitted for evaluation of progressive shortness of breath, daytime sleepiness, and exertional dyspnea. He denied chest pain or a productive cough. No treatment or findings associated with his service-connected disability were shown, and none of the diagnoses at hospital discharge were related to his service-connected disability. Reports of VA orthopedic and neurological examinations, conducted in August 1997, cited complaints of fractured ribs in the left lower rib cage while in service in 1952, and of developing a pulling sensation in the posterior aspect of the left lateral chest, worse on bending, about 15 years ago. Examination revealed tenderness to palpation over the left lower ribs and hip bone, while right side palpation over the ribs did not reveal any problems. The clinical impression was left lower rib pain, possibly musculoskeletal. The examiners noted that the veteran's rib fractures had been on the right, and that X-rays of the left lower ribs were unremarkable. There were no positive findings with respect to the right rib cage on examination, but X-rays of the right rib cage disclosed irregularity of the 10th rib along the posterior axillary line suggestive of an old fracture, without evidence of any recent fracture. The veteran was admitted to the VAMC from the Domiciliary in October 1998 for evaluation and treatment of obstructive brain syndrome. A report of VA neurological examination, conducted in October 1998, cited a history offered by the veteran of injury to his rib cage, right leg, and cervical spine after falling off a bulldozer seat in 1953. Examination disclosed no findings related to the veteran's service-connected disability. The sole diagnosis was musculoskeletal headaches. A report of VA orthopedic examination, conducted in October 1998, cited a history offered by the veteran of injury to his rib cage, right leg, and cervical spine after falling off a bulldozer seat in 1953. His current complaint was frequent, severe, and constant left rib achiness, worsened at night and on stretching and bending, and inability to lift. Examination disclosed tenderness in the left anterior ribs at the level of the 10th rib, with a full range of motion in the back. X-rays of the left lower ribs were within normal, limits, while X-rays of the right rib cage disclosed an old fracture of the right 10th rib A second report of VA orthopedic examination, also conducted in October 1998, cited a history offered by the veteran of injury to his left rib cage when he fell off the back of a tractor 1953. He related that his ribs were taped, and that he had intermittent trouble with his ribs after leaving service, but never saw a doctor, took any medications, or used any type of brace or support. He sustained an on-the- job injury in 1977, and never worked again. He denied any problems with the right rib cage, but made repeated reference to left rib cage problems. Examination disclosed that palpation to both sides of the rib cage elicited complaints of pain on the left side, but not on the right. There was no demonstrable deformity of the right rib cage. X-rays taken in August 1997 disclosed irregularity of the 10th rib suggested an old fracture. The diagnosis was right rib injury, possible fracture, old, service-connected. The examiner stated that the veteran obviously sustained some type of injury to his right rib cage while on active duty, but currently had no symptoms or physical findings referable to the right rib cage. He concluded that the veteran had no disability due to the right rib injury sustained in service in 1953. II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (1999). Where entitlement to service connection has already been established, and an increase in the disability rating is the issue, the present level of the disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In accordance with 38 C.F.R. §§ 4.1 and 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's residuals of separation of the right ninth and tenth ribs. The Board has found nothing in the historical record which would lead to the conclusion that the most current evidence of record is not adequate for rating purposes. Moreover, the case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to that disability. Governing regulations provide that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). The veteran's service-connected residuals of separation of the right ninth and tenth ribs from cartilage are currently evaluated by analogy to 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5297 (1999). That diagnostic code provides that removal of more than six ribs will warrant assignment of a 50 percent evaluation; removal of five or six ribs will be rated as 40 percent disabling; removal of three or four ribs will be rated as 30 percent disabling; removal of two ribs will be assigned a 20 percent rating; and removal of one or resection of two or more ribs without regeneration will be rated as 10 percent disabling. Note (1): The rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of the pleural cavity. Note (2): However, rib resection will be considered as rib removal in a thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. Part 4, § 4.31 (1999). The record in this case discloses that the veteran has not undergone rib removal. Rather, he experienced a separation of the right ninth and tenth ribs from cartilage more than 47 years ago. The Board's review of the medical and other evidence submitted since the veteran reopened his claim in December 1991 discloses no competent medical evidence which establishes the presence of symptoms or physical findings referable to the right rib cage, or attributable to the right rib injury sustained by the veteran in 1953. While the veteran has complained of constant left chest pain on bending and on deep inspiration, the Board notes that his service- connected disability involves the right rib cage, and that service connection is not in effect for any injury or disability of the left chest. Further, the veteran has specifically denied any pain or limitation of function associated with the right side of his chest. While the RO and the Board have carefully considered the veteran's complaints of left chest pain on motion, the examining physicians who conducted the recent VA orthopedic and neurological examinations and evaluations of his service- connected separation of the right ninth and tenth ribs from cartilage found no objective evidence that he experiences weakened movement, excess fatigability, incoordination, or loss of function due to pain on use or during flare-ups, as contemplated by 38 C.F.R. Part 4, §§ 4.40, 4.45, and 4.59, that may be attributed to his service-connected disability. To the contrary, the diagnosis on orthopedic and neurologic examination in February 1993 was: remote fracture of the ribs, no residuals. The VA examination in August 1997 disclosed no more than an irregularity of the 10th rib along the posterior axillary line suggestive of an old fracture, with a full range of back motion. Further, the veteran has related that, although his ribs were taped and he had intermittent trouble with his ribs after leaving service, he never saw a doctor, took any medications, or used any type of brace or support. He denied any problems with the right rib cage, but made repeated reference to left rib cage problems, and palpation to both sides of the rib cage elicited complaints of pain only on the left side, not on the right. There is no demonstrable deformity of the right rib cage, and in October 1998, the VA orthopedic examiner stated that, while the veteran obviously sustained some type of injury to his right rib cage while on active duty, he currently had no symptoms or physical findings referable to the right rib cage. He concluded that the veteran had no disability due to the right rib injury sustained in service. The Board further finds that the veteran's back braces were prescribed in treatment for his nonservice-connected chronic lumbosacral pain, and not in connection with his service- connected disability. To that point, the Board notes that the medical record includes diagnoses of arthritis with trochanteric bursitis; chronic low back pain; musculoskeletal low back pain; lumbar degenerative joint disease; mechanical low back pain with lordosis; degenerative changes of the anterior aspect of the lumbosacral spine, chronic low back pain secondary to arthritis; and an MRI report that was suggestive of a disc herniation at L4-5. There is no clinical or radiological finding or diagnosis of traumatic arthritis at the juncture of the right 9th and 10th ribs. With respect to the veteran's complaints of left chest pain, the medical record reveals that he has diagnoses of chronic obstructive pulmonary disease; chronic interstitial pulmonary fibrosis, chronic bibasilar interstitial fibrosis of the lungs; and old granulomatous disease, while a recent chest X- ray revealed bilateral pulmonary fibrotic changes. None of these conditions have been linked or related to the veteran's service-connected residuals of separation of the right ninth and tenth ribs from cartilage. Accordingly, the Board finds no basis for a conclusion that the veteran has traumatic arthritis of the spine related to his service-connected rib condition. In view of the well- documented findings that the veteran currently has no symptoms or physical findings referable to the right rib cage and no disability due to the right rib injury sustained in service, the Board further finds no basis for assignment of a compensable evaluation under the provisions of 38 C.F.R. Part 4, §§ 4.40, 4.45, and 4.59 (1999). Based upon the foregoing, the claim for a compensable rating for service-connected residuals of separation of the right ninth and tenth ribs from cartilage is denied. In reaching its decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for a compensable rating for service-connected residuals of separation of the right ninth and tenth ribs from cartilage, to include traumatic arthritis, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals