Citation Nr: 0000005 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 96-20 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of fractures of the right 3rd and 4th ribs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Associate Counsel INTRODUCTION The veteran had active military service from August 1962 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) from an October 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was remanded by the Board in September 1997 for further development; it was returned to the Board in July 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's fractures of his right third and fourth ribs are well healed and are not shown to be productive of any significant impairment or symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of fractures of the right third and fourth ribs have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5297, 4.118, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In this regard the Board notes that the report of the veteran's October 1996 VA examination indicates that the veteran had last been examined in September 1996, although no report of a September 1996 VA examination was of record. Pursuant to the Board's September 1997 remand, the RO attempted to obtain the report of any VA examination conducted in September 1996, but was essentially informed by the appropriate medical facility that the only VA examination of the veteran conducted in 1996 was the October 1996 examination. The Board notes that the veteran has not alleged that he was examined in September 1996. In light of the above, the Board concludes that the notation in the October 1996 VA examination was in error, and that the reports of all pertinent VA examinations of the veteran are currently of record. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should 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. § 4.7 (1999). Briefly, as was noted in the Introduction, the veteran's service ended in July 1964. In October 1995, service connection for residuals of fractures of the right 3rd and 4th ribs was granted, evaluated as noncompensably disabling. Following the veteran's hearing before a hearing officer at the RO in August 1996, the hearing officer increased the evaluation of the veteran's disability to 10 percent disabling in December 1996. In February 1998, the RO assigned the veteran a temporary total evaluation for his disability effective from June 3, 1996, to June 30, 1996, following which the veteran's disability continued to be evaluated as 10 percent disabling. The 10 percent rating has remained in effect since that time. Service medical records disclose that the veteran was involved in a motor vehicle accident in May 1963, at which time he sustained simple fractures of his right third and fourth ribs without any associated artery or nerve involvement. Chest X-ray studies showed rib fractures in the axillary line, without significant bone displacement. The records reflect that the veteran was hospitalized for less than one week for his injuries, and that he was asymptomatic at his discharge from hospitalization. On file are VA treatment records of the veteran for June 1993 to August 1997. The treatment reports document only scattered complaints of right rib and chest wall pain; physical examination consistently showed that the veteran's chest was symmetrical and nontender. The records document numerous complaints of low back pain and respiratory difficulties, and contain diagnoses of degenerative arthritis of the spine, chronic obstructive pulmonary disease (COPD), coronary artery disease and obesity. The veteran was hospitalized in June 1996 for, inter alia, complaints of right rib and chest wall pain with shortness of breath. On physical examination the veteran's chest was symmetric and normal, and chest X-ray studies were negative for any pertinent abnormalities. The veteran was diagnosed with musculoskeletal pain over the chest wall, as well as with degenerative joint disease of the lower back and COPD. The veteran was afforded a VA examination in July 1995, at which time he reported that he had fractured his left third rib in service. He complained of low back pain and trouble with breathing. On physical examination, the veteran's carriage and posture were described as normal. He exhibited full chest excursion without complaints, and his musculoskeletal examination was otherwise normal, except with respect to his lumbosacral spine. X-ray studies showed some minimal areas of atelectasis, but normal osseous structures. He was diagnosed with history of left rib fracture times three, well-healed, as well as with lumbosacral spine pain syndrome and bronchitis. On file are records from the Social Security Administration (SSA), which indicate that the veteran was found to be disabled by that agency based on low back disability, including arthritis, and psychiatric disability, to include elements of a chronic pain syndrome. The SSA records are notably negative for any complaints by the veteran referable to his rib fractures, and are negative for any medical evidence, apart from VA medical records, documenting any complaints, finding or diagnosis pertaining to his rib fractures. On file are May 1996 statements by Stephen C. Kincaid, D.C., which indicate that the veteran had been treated for low back disabilities and associated symptoms; the statements are negative for any reference to the veteran's rib fractures. The veteran was afforded a hearing before a hearing officer at the RO in August 1996, at which time he testified, in essence, that he experienced pain and soreness in his right ribs which WERE exacerbated by walking. He averred that his rib pain interfered with sleep and that he had trouble breathing. He testified that his symptoms were worse in the winter months, and that his disability prevented him from lifting objects. He denied the presence of any scar associated with his rib fractures. The veteran was afforded a VA examination in October 1996, at which time he complained of severe pain associated with his right chest wall. He also complained of low back pain and averred that he had not worked since 1991. He denied any history of surgery. On physical examination, no musculoskeletal deformities were noted and there was no evidence of restricted movement. The veteran reported experiencing pain on the right with deep inspiration, but exhibited full inspiratory expansion of the lungs. The examiner noted that X-ray studies of the veteran were not available, but he nevertheless concluded that the veteran's rib fractures must be completely healed. The veteran was diagnosed with healed fracture of multiple ribs in the right chest. The RO rated the veteran's residuals of fractures of the right 3rd and 4th ribs as 10 percent disabling by analogy to scars which are tender and painful under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under that code, superficial scars which are tender and painful on objective demonstration warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. Removal of one rib or resection of two or more ribs without regeneration warrants a 10 percent evaluation. A 20 percent rating is warranted for removal of two ribs. 38 C.F.R. § 4.71a, Diagnostic Code 5297. Upon review of the evidence of record, the Board finds that a rating greater than 10 percent for residuals of fractures of the right 3rd and 4th ribs is not warranted. In this regard, the evidence does not show, and the veteran does not dispute, that the veteran has undergone surgery for the removal or resection of either his right third or his right fourth rib. Moreover, VA examiners in July 1995 and October 1996 concluded that the clinical evidence demonstrated that the veteran's rib fractures had healed, recent chest X-ray studies are negative for evidence of any bony abnormalities or other evidence of rib fractures, and, despite complaints of pain on deep inspiration, there is no clinical or other objective evidence of functional impairment associated with the service-connected disability, as opposed to symptoms associated with his numerous nonservice-connected disabilities. A higher rating under DC 5297 is therefore not warranted. Moreover, although the RO assigned the veteran a 10 percent evaluation for his disability under the diagnostic code pertaining to tender and painful scars, the highest rating assignable under DC 7804, the Board points out that the medical evidence on file and the testimony of the veteran himself indicates that the veteran in fact does not have any scars associated with the rib fractures he sustained in service. The Board therefore finds that Diagnostic Codes 7803 and 7805, pertaining to scars which are poorly nourished and ulcerated, and to scars which cause limitation of function in the affected part, are not for application. Accordingly, as the veteran is in receipt of the maximum schedular rating for a tender and painful scar under DC 7804, and as the veteran has not undergone removal or resection of either his right third or his right fourth rib, or exhibited clinical evidence of disabling symptomatology associated with the right rib fractures, the Board finds that the disability picture for his service-connected residuals of fractures of the right 3rd and 4th ribs does not more nearly approximate the criteria for a rating greater than 10 percent. 38 C.F.R. § 4.7. The Board lastly notes that the veteran is considered disabled by the Social Security Administration. The Board points out, however, that the veteran's service- connected disability was not considered a factor in SSA's determination. Moreover, review of the medical evidence on file discloses very few complaints associated with the residuals of the veteran's service-connected right third and fourth rib fractures, and there is no evidence that the disability has necessitated frequent periods of hospitalization or that the manifestations associated with the fractures are unusual or exceptional. Therefore, the Board finds that the criteria for submission for an extra- schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a rating in excess of 10 percent for residuals of fractures of the right 3rd and 4th ribs is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals