Case A26030096

JONATHAN B. KRAMER · 2026 · Case ID: A26030096

MIXED

Summary

The veteran, who served from March 1978 to September 1992, appeals the denial of increased disability ratings for a groin cyst scar and lumbar spine degenerative disc disease, as well as the denial of a compensable rating for right otitis media and an increased rating for PTSD. The veteran also sought an increased rating for a right ankle fracture residual. The Board dismissed the claim for the groin cyst scar due to withdrawal by the veteran. For the lumbar spine disability, the Board found that the veteran's symptoms, including pain and limited range of motion, did not meet the criteria for a rating higher than the existing 20 percent, noting the absence of incapacitating episodes or severe muscle spasm. Regarding the right ankle disability, the Board granted a 20 percent rating, finding that the Veteran's reported instability, pain, and weakness more closely approximated the criteria for marked limitation of motion than the previously assigned 10 percent rating. The claim for right otitis media was denied, as the veteran's symptoms did not meet the criteria for suppuration or aural polyps required for a compensable rating. The claim for an increased PTSD rating was denied, as the veteran's symptoms, while including depressed mood, anxiety, and sleep impairment, did not rise to the level of occupational and social impairment required for a rating higher than the current 30 percent. Finally, the Board granted a 10 percent rating for chest wall muscle spasm (costochondritis), finding that the Veteran's severe pain and functional impairment were analogous to moderate muscle disability.

Rationale

Veteran withdrew claim at Board hearing; No jurisdiction to review withdrawn claim

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201230-132123

Full Decision Text

Citation Nr: A26030096
Decision Date: 04/02/26 Archive Date: 04/02/26

DOCKET NO. 201230-132123
DATE: April 2, 2026

ORDER

The claim of a disability rating in excess of 10 percent for a scar, residual of a cyst removed from the groin area, is dismissed.

The claim of an increased disability rating in excess of 20 percent for degenerative disc disease with the lumbar spine strain, is denied.

A 20 percent disability rating, but no higher, for residuals of fracture of right distal fibula to include right ankle and toes, is granted.

The claim of a compensable disability rating for otitis media of the right ear is denied.

The claim of an increased disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied.

A 10 percent disability rating, but no higher, for chest wall muscle spasm, claimed as costochondritis, is granted.

FINDINGS OF FACT

1. Prior to the promulgation of a decision in the appeal, at the Board of Veterans' Appeals (Board) hearing in July 2024, the Veteran stated he wished to withdrawal the claim of an increased disability rating in excess of 10 percent for a scar, residual of a cyst removed from the groin area.

2. The Veteran's lumbar spine disability has not manifested forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis (or functional equivalent thereof), or incapacitating episodes.

3. The Veteran's right ankle disability has been characterized by marked limitation of motion or functional loss due to pain, instability, and weakness.

4. The Veteran's otitis media of the right ear has not manifested in suppuration or aural polyps.

5. The Veteran's symptoms of PTSD are indicative of occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

6. The Veteran's costochondritis causes pain resulting in functional impairment, analogous to a chest muscle disability with symptoms of fatigue-pain and lowered threshold of fatigue.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for an increased disability rating in excess of 10 percent for a scar, residual of a cyst removed from the groin area, by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for entitlement to a rating in excess of 20 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.§ 4.71a, Diagnostic Code (DC) 5243.

3. The criteria for entitlement to a disability rating of 20 percent, but not higher, for the right ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5271.

4. The criteria for a disability rating for otitis media of the right ear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.118, DC 6200.

5. The criteria for a disability rating in excess of 30 percent for PTSD from are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.156(b), 4.130, DC 9411.

6. The criteria for entitlement to a disability rating of 10 percent, but no higher, chest wall muscle spasm, claimed as costochondritis, is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.73, DC 5321.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1978 to September 1992.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) under the Appeals Modernization Act (AMA).

Later that month, the Veteran submitted a timely VA Form 10182 and selected the AMA hearing lane. The Veteran testified in July 2024 at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record
1, 4.3, 4.7, 4.73, DC 5321.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1978 to September 1992.

By selecting the Hearing Lane, the law under the AMA limits the evidence consideration in the appeal to that which was of record at the time of the December 2020 rating action, the July 2024 hearing testimony, and any evidence received into the record within 90 days of the hearing. The Veteran has not submitted additional evidence in support of his appeal within the 90-day window.

As a preliminary matter, the Board notes that the Veteran's representative asserted a Francway challenge against the December 2020 VA examiner. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Specifically, the representative asserted that it was not established that the examiner, a physician assistant, was competent in the fields of medicine pertinent to orthopedic medicine, dermatology, or muscle injuries to render the opinions provided.

Under Francway, the United States Federal Circuit Court of Appeals held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. Francway, 930 F.3d 1377, 1381. The Federal Circuit held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant believes the expert is not qualified to give an opinion. Typically, a claimant must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, a claimant normally has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner. This is mandated by the VA's duty to assist. Id. at 1308.

However, pursuant to the provisions of the AMA, the Board reviews the record only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802(a). In this case, the rating decision on appeal was issued in December 2020. The challenge to the VA examiner's competency under Francway was initially raised by the Veteran's representative at the July 2024 Board hearing. As the challenge under Francway was received after the rating decision, the failure to provide the VA examiner's qualifications to the Veteran does not represent a pre-decisional duty to assist error. The duty to assist does not attach at the Board level in an AMA appeal. 38 C.F.R. § 3.159 (c). Therefore, remand for that issue is not appropriate, and no further action is warranted.

Dismissal

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran unambiguously stated at the Board hearing that he wished to withdraw his claim for a disability rating in excess of 10 percent for a scar, residual of a cyst removed from the groin. Hence, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed.

Increased Disability 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. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should
Increased Disability Rating

Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.

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. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and
related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

Lumbar spine disability

This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2); see also Plate V.

Unfavorable ankylosis is 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, atlantoax
in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2); see also Plate V.

Unfavorable ankylosis is 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. 38 C.F.R. § 4.71a, General Formula, Note (5).

Additionally, the rating criteria under the General Rating Formula provides a separate evaluation for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2017) (Note 1).

Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021).

The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans' law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. 38 U.S.C. § 5110 (g). Here, the amendments to the rating schedule do not have any retroactive application.

Given that the current appeal was pending as of February 7, 2021, a disability rating under DC 5243 for IVDS may still be available in the absence of disc herniation or irritation of the adjacent nerve root even after the effective date of the amendment if the old rating criteria yield a more favorable result than the new criteria.

The Veteran testified at the Board hearing that his low back disability caused limitation on walking and standing, ordinary household tasks, and getting in and out of a vehicle. He was unable to bend over to put on or take off his shoes. He stated he experienced flare-ups which limited his movement such as moving groceries, taking out the garbage, and helping his wife with gardening. The Veteran stated his low back disability worsened since his last VA examination in 2020.

Turning to the evidence of record, the Veteran was afforded a VA back conditions examination in December 2020 where a diagnosis of IVDS was confirmed. The Veteran stated that his current symptoms included back pain when standing which he treated with Tylenol. The Veteran's low back disability limited his ability to stand and caused pain when sitting, standing, or
ordinary household tasks, and getting in and out of a vehicle. He was unable to bend over to put on or take off his shoes. He stated he experienced flare-ups which limited his movement such as moving groceries, taking out the garbage, and helping his wife with gardening. The Veteran stated his low back disability worsened since his last VA examination in 2020.

Turning to the evidence of record, the Veteran was afforded a VA back conditions examination in December 2020 where a diagnosis of IVDS was confirmed. The Veteran stated that his current symptoms included back pain when standing which he treated with Tylenol. The Veteran's low back disability limited his ability to stand and caused pain when sitting, standing, or moving. The Veteran described his flare-ups as moderate to severe, occurring two to three times per day, and lasting 10 to 20 minutes. They were precipitated by walking, shopping, and standing. The flare-ups were alleviated by Tylenol, hot showers, baths, standing up and sitting down.

The range of motion (ROM) testing revealed 60 degrees of forward flexion with pain. Upon observed repetitive use there was no additional loss in range of motion. The examiner estimated forward flexion limited to 40 degrees during a flare-up. There was no evidence of guarding or muscle spasm. Muscle strength revealed normal finding and no muscle atrophy. The reflex examination was normal. There was evidence of mild radiculopathy for the bilateral sciatic nerve. The Veteran did not suffer from ankylosis or other neurologic abnormalities. He suffers from IVDS, however there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He does not use an assistive device and there was no evidence of a scar on his back.

The claims file contains no further evidence from the period on appeal addressing the nature and severity of the Veteran's low back disability within evidentiary window.

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess of 20 percent is not warranted.

The Board has reviewed and considered the Veteran's assertions concerning the symptoms he experiences as a result of his lumbar spine disability. However, even considering his subjective complaints of pain and other symptoms described in the record, IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; and/or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour have not been shown at any point during the review period, such that a higher rating would be warranted.

The December 2020 VA examination demonstrated forward flexion limited to 60 degrees with pain and upon observed repetitive use there was no additional loss in range of motion. At worst, forward flexion was limited to 40 degrees during a flare-up with no indication of ankylosis. The record has not otherwise provided evidence of forward flexion limited to 30 degrees or less, or the functional equivalent thereof.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a disability rating in excess of 20 percent for the Veteran's low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent disability rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period, however, the effect of the pain in the Veteran's low back disability is contemplated in the currently assigned 20 percent disability rating. Although the Veteran experienced pain, it did not result in an additional range of motion loss. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The evidence of record also weighs against finding ankylosis or its equivalent during the period on review. There is no evidence or argument that the Veteran's low back pain or ROM limitation from such were so severe that they resulted in symptoms
Veteran experienced pain, it did not result in an additional range of motion loss. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The evidence of record also weighs against finding ankylosis or its equivalent during the period on review. There is no evidence or argument that the Veteran's low back pain or ROM limitation from such were so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis v. McDonough, 34 Vet. App. 1 at 12-13 (2021) (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up).

In this case, although the Board acknowledges the Veteran's lay reports of symptoms indicative of some functional loss, the Board concludes that such alleged functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion to a minimum of 40 degrees. Also, to the extent that the Veteran has experienced functional loss, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine. The evidence does not demonstrate a spine that is fixed in flexion or extension. While it is argued that the Veteran requires rest to alleviate his symptoms, this evidence does not support the notion that he is immobile. Temporary rest to alleviate symptoms is not the same as having a spine that is fixed in flexion or extension. His symptoms are fully contemplated by the assigned schedular rating. The current rating adequately compensates him for his pain with limited motion, and a higher rating is not warranted, nor is his disability the equivalent of ankylosis.

The Board has considered the use of the Veteran's medications, to include Tylenol. Given the exacerbating periods of back pain as reported by the Veteran, there is no basis for discounting the ameliorative effects of medications. Simply put, ameliorative effects of medications or pain management are not reflected with the frequency of the Veteran's pain complaints. Jones, supra. Thus, the evidence of record weighs against finding medication obscures loss of function beyond that which was observed and reported. Id.

The Board further finds that a separate disability rating is not warranted at any time during the appeal period because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected radiculopathy of the bilateral upper and lower extremities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's low back disability.

Right ankle disability

The Veteran seeks an increased rating for his service-connected right ankle disability. The Veteran is currently assigned a 10 percent rating under DC 5271.

As stated above, effective February 7, 2021, VA amended the rating criteria for DC 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). The Board is not precluded from applying the prior version of an applicable regulation to the period on or after the effective date of the new regulations if the prior version was in effect during the pendency of the claim.

Under the previous version of the DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle, and a 20 percent rating is warranted for marked limited motion of the ankle. "Moderate" and "marked" are not defined.

The February 2021 changes to DC 5271 essentially defined "moderate" and "marked" in terms of range of motion. "Moderate" is defined as plantar flexion limited to 30 degrees or less or dorsiflexion limited to 15 degrees or less. "Marked" is defined as plantar flexion limited to 10 degrees or less or dorsiflexion limited to 5 degrees or less.

Prior to the amended criteria, the Veterans Benefits Administration had already issued guidance in the M21-1 Adjudication Procedures Manual (M21-1) defining marked and moderate in DC 5271 as including the ranges of motion now explicitly set forth in the amended regulation. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018).

In August 2017, VA proposed to redefine "moderate" and "marked" under DC 5271 because the criteria are subjective and the terminology was vague. The proposal was to define "moderate" and "marked" limitation of motion with the criteria now included in the current version of DC 5271. See 82 Fed. Reg. 35719 (Aug. 1, 2017). Given this history, the Board finds that the M21-1 guidance on the definition of "moderate" and "marked" prior to the regulation changes is persuasive and consistent with the updated regulatory changes, and, thus, finds such to be illustrative for the purposes of this decision.

DC 5262, although listed as pertaining to knee and leg disorders, refers to ankle disorders. Under the prior version of DC 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating; malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating; malunion with moderate knee or ankle disability warrants a 20 percent rating, and; malunion with slight knee or ankle disability warrants a 10 percent rating.

Under the amended version of DC 5262, the provisions regarding nonunion are unchanged, the provisions regarding malunion provide for rating under the relevant Diagnostic Code for ankylosis or limitation of motion, and a section regarding medial tibial stress syndrome (MTSS) or shin splints has been added.

For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II.

The Veteran testified at the Board hearing that his right ankle caused difficulty with his stability as he would "have to hand on to something to get dressed in the morning, or I struggle with putting my socks on or get dressed, and I'm very careful about moving around, because I don't exactly know when it's going to be a problem, and when I sleep at night, and that ankle -- foot turns inward, the right ankle, it seems to turn inward, and I have pain when it's turning inward. It looks abnormal." The Veteran stated his right ankle has worsened since the December 2020 VA examination. The Veteran described his difficulty walking to his mailbox and back (approximately 100 ft roundtrip) as he is concerned with falling. He stated that he nearly fell two weeks prior when he slipped but was able to hold on to the rail in the bathroom.

In December 2020, the Veteran underwent a VA ankle conditions examination where a diagnosis of residuals of a fracture of the right distal fibula to include the right ankle and toes was indicated. The Veteran stated his current symptoms included pain, swelling, and arthritis. The pain impacted extended use, bending and walking of the right ankle. He self-treated with Tylenol. The Veteran reported the flare-ups of the right ankle were moderate to severe, occurred two to three times a week, and lasted one to two hours. It was precipitated by walking, grocery shopping, and the position during sleep/rest. The flare-ups were alleviated by pain medication, and heat or cold packs.

Initial ROM for the right ankle was 30 degrees of plantar flexion to 10 degrees of dorsiflexion. Pain was exhibited on both dorsiflexion and plantar flexion but did not cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function. He was examined immediately after repeated
self-treated with Tylenol. The Veteran reported the flare-ups of the right ankle were moderate to severe, occurred two to three times a week, and lasted one to two hours. It was precipitated by walking, grocery shopping, and the position during sleep/rest. The flare-ups were alleviated by pain medication, and heat or cold packs.

Initial ROM for the right ankle was 30 degrees of plantar flexion to 10 degrees of dorsiflexion. Pain was exhibited on both dorsiflexion and plantar flexion but did not cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function. He was examined immediately after repeated use over time but the ROM remained the same. The VA examiner indicated, however, that fatigue and lack of endurance caused functional loss with repeated use over time. Estimated range of motion during a flare-up was 25 degrees of plantar flexion to 5 degrees of dorsiflexion. No atrophy or ankylosis noted. However, right ankle instability was suspected. The Veteran has no history of shin splints (medial tibial stress syndrome), stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy).

The claims file contains no further evidence from the period on appeal addressing the nature and severity of the Veteran's right ankle disability.

The Board finds that the criteria for an increased rating under either version of Diagnostic Code 5271 are not met or more closely approximated. Under both the old and new versions of DC 5271, a 20 percent rating is warranted for marked limitation of motion. Under the new criteria, marked limitation is definitively characterized by less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Under the old criteria, VA guidance advised the same characterization.

The December 2020 VA examination report estimated that, during a flare-up, the Veteran's range of motion of his right ankle would be limited to, at worst, 25 degrees of plantar flexion to 5 degrees of dorsiflexion. This limitation meets the criteria for a 10 percent rating but is not sufficient to entitle the Veteran to the higher 20 percent rating, even considering the frequency, severity and duration of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

However, while these ROM levels do not support a higher rating the Board finds a 20 percent rating is warranted. Here the pre-amended DC 5271 provides a 20 percent rating for "marked" limitation of motion, which as defined above would result in a distinctive or emphasized character. The Veteran's reports of the symptoms related to the right ankle are distinctive. Notably, in the December 2020 VA examination the Veteran reported ankle instability and indicated the pain with weight bearing. He also reported at the Board a history of instability, struggling to walk, and pain when turning inward at night while he is sleeping. Upon reconsideration of the right ankle as a whole, the Board finds the instability, pain, and weakness more closely approximates the next higher rating of 20 percent for a marked limitation of motion.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a disability rating in excess of 20 percent for the Veteran's right ankle disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran's pain on movement and interference with walking, standing, and weightbearing, however, the effect of the pain in the Veteran's right ankle is contemplated in the newly assigned 20 percent disability rating. Therefore, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell, 25 Vet. App. at 32.

The Board recognizes that it is unclear whether the examiner discounted the ameliorative effects of the Veteran's medications when evaluating his right ankle symptoms. See Jones, 26 Vet. App. at 63. Rather than remand for an addendum opinion, the Board finds the medical evidence of record is sufficient for the Board to
Therefore, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell, 25 Vet. App. at 32.

The Board recognizes that it is unclear whether the examiner discounted the ameliorative effects of the Veteran's medications when evaluating his right ankle symptoms. See Jones, 26 Vet. App. at 63. Rather than remand for an addendum opinion, the Board finds the medical evidence of record is sufficient for the Board to rate the Veteran's right ankle disability absent the ameliorative effects of medication. Thus, as DC 5271 does not contemplate the ameliorative effects of medication, the Board accordingly discounts the effects of his use of Tylenol and finds that absent medication taken to treat his right ankle symptoms, the Veteran's symptoms are productive of a 20 percent disability rating.

The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. However, those other diagnostic codes are not applicable as there is no evidence of record indicating that the Veteran's service-connected ankle disabilities involve ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, and 5274. Furthermore, the Veteran is now in receipt of a 20 percent rating which is the maximum rating allowed for all of these DCs.

Accordingly, a rating of 20 percent, but not higher, for the right ankle disability is warranted.

Otitis media of the right ear

The Veteran also seeks a compensable disability rating for otitis media of the right ear.

The current noncompensable rating for otitis media of the right ear has been assigned under DC 6200, which rates chronic suppurative otitis media, mastoiditis, or cholesteatoma, or any combination of those disabilities. 38 C.F.R. § 4.87, DC 6200. A maximum 10 percent rating is assigned for chronic suppurative otitis media during suppuration, or with aural polyps.

Turning to the evidence, the Veteran's VA treatment records do not contain information concerning the severity of this condition during the review period.

The Veteran was afforded a VA ear conditions examination in December 2020 where a diagnosis of otitis media in the right ear was confirmed. The Veteran reported that his current symptoms included itching and pain and used ear drops as needed. The Veteran stated that the condition impacted his ability to hear in conversations. An examination revealed the right ear canal was dry and scaly. There was no evidence of benign neoplasm of the ear. The external ear, tympanic membrane, and gait were normal. Furthermore, there was no impact on his ability to work.

The Board finds that a compensable rating for the Veteran's service-connected otitis media of the right ear is not warranted. During the review period, the Veteran's otitis media of the right ear manifested as symptoms of pain, itching, and dry and scaly ear canal. The evidence of record shows that the Veteran did not experience otitis media of the right ear during suppuration, or with aural polyps, as contemplated by the 10 percent disability rating.

A note following DC 6200 states that complications, such as hearing impairment, labyrinthitis, tinnitus, facial nerve paralysis and bone loss of the skull, are to be rated separately. The record of evidence for the period in question does not contain evidence indicating that the Veteran experienced hearing impairment, labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of the skull due to the chronic suppurative otitis media disability. Therefore, the Board will not assign separate ratings for any of those disabilities as suggested in DC 6200. 38 C.F.R. § 4.87.

When considering a claim for an increased disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). Here, the Veteran described use of eardrops to control his symptoms of itching and pain. The Veteran has not described or presented evidence of that he takes this medication for control of suppuration or to prevent the development of aural polyps; and the medical evidence of record does
, the Board will not assign separate ratings for any of those disabilities as suggested in DC 6200. 38 C.F.R. § 4.87.

The evidence persuasively weighs against the assignment of a compensable disability rating during the period on appeal. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102

PTSD

The Veteran contends that a disability rating in excess of 30 percent was warranted as the severity of his PTSD had worsened. Specifically, the Veteran testified at the Board hearing his symptoms had worsened since the last December 2020 VA PTSD examination.

The Board notes that under the AMA, remand is only appropriate if there has been a pre-adjudication duty to assist error committed by the AOJ. While the Veteran is competent to report symptoms of worsening since his last VA examination, the Veteran did not report his worsening symptoms before the AOJ issued the December 2020 rating decision, which is the time period when VA's duty to assist terminated. Any worsening of symptoms since December 2020 rating decision on appeal cannot form the basis to remand for a new examination.

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under the general rating formula, the Veteran's current 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir
of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In considering the rating criteria set above, the Board must conduct a "holistic analysis" that assesses the severity, frequency, and duration of the signs and symptoms; quantifies the level of occupational and social impairment caused by these signs and symptoms; and assigns the evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

According to the December 2020 VA PTSD examination report, the Veteran's PTSD was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran stated he lived alone and spent his time reading, communicating with online friends, was able to complete his activities of daily living and driving, and attended church and visited friends prior to the COVID-19 pandemic. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment. He arrived at the examination casually groomed; was polite; his speech and behavior were appropriate; was verbal; alert; oriented to person, place, and time; his thoughts were logical and goal directed; he was not overtly psychotic; and his mood euthymic. The Veteran denied current suicidal and homicidal ideation or intent.

A June 2020 VA treatment record reflected negative screenings for depression and suicide risk.

The Veteran testified at the Board hearing his PTSD symptoms included "[b]ad dreams, nightmares, insomnia, irritability, anxiety, being argumentative with my spouse or my family members, not wanting to have... social relationships with friends or family that I had before." The Veteran described hypervigilance, a ritual of listening to the news, and issues with short-term memory.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that the assignment of a disability rating in excess of 30 percent for the Veteran's service-connected PTSD is not warranted.

Initially, the collective evidence shows the Veteran generally functioned satisfactorily with appropriate behavior, self-care, logical thoughts, and normal conversation, all of which is consistent with the criteria for a rating of 30 percent. The December 2020 VA examiner endorsed "occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, selfcare and conversation," which is the criteria for a 30 percent disability rating. The Veteran has not provided medical evidence contrary with this finding.

In accordance with Mauerhan and Vazquez-Claudio, the Veteran's PTSD produces a wide range of symptoms; however, the Veteran's overall symptoms most closely reflect the 30 percent disability rating. The Board acknowledges the Veteran reported symptoms of depressed mood, anxiety, and sleep impairment. He also testified that he was irritable, argumentative, and difficulty having relationships with family or friends. The Veteran also reported issues with his short term memory and a ritual of watching the news.

However, the evidence reflects that he was able to maintain relationships with family and friends, albeit with some difficulties. The VA examination report or the medical treatment records have not indicated impaired judgment, or impaired abstract thinking. There are also no reports from the Veteran or within the medical evidence of panic attacks. Overall, the symptoms of the Veteran's PTSD are not sufficient for a higher disability rating in the absence of occupational and social impairment with reduced reliability and productivity. The Veteran had not reported flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking consistent with the higher 50 percent disability rating or worse.

Overall, the severity, frequency, and duration of such instances were not such that it more closely reflects a higher disability rating than the current 30 percent. Here, the Veteran's reported symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss are all contemplated by the 30 percent disability
Overall, the symptoms of the Veteran's PTSD are not sufficient for a higher disability rating in the absence of occupational and social impairment with reduced reliability and productivity. The Veteran had not reported flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking consistent with the higher 50 percent disability rating or worse.

In sum, the probative medical evidence of record weights against a higher rating for PTSD. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Therefore, the Veteran's claim for entitlement to a disability rating in excess of 30 percent for PTSD is denied.

Chest wall muscle spasm, claimed as costochondritis

The Veteran's service-connected chest wall muscle spasm was originally evaluated as noncompensable by analogy under 38 C.F.R. § 4.73, DC 5321, for disability of Muscle Group XXI, the muscles of respiration, in the thoracic muscle group. Under that DC, a noncompensable evaluation is warranted for slight muscle disability, a 10 percent evaluation is warranted for moderate injury, and a 20 percent evaluation is warranted for severe or moderately severe injury.

For rating muscle disabilities, slight disability includes a simple wound of the muscle without debridement or infection. Service department records would 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 as defined in 38 C.F.R. § 4.56(c). Objective findings would show minimal scar, no evidence of fascial defect or atrophy or impaired tonus, and no impairment of function or metallic fragments retained in the muscle tissue.

Moderate disability includes a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. Service department records or other evidence would show in-service treatment for the wound. The record would show consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings would include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.

Moderately severe disability included 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 intermuscular scarring. Service department records or other evidence would show hospitalization for a prolonged period for treatment of the wound. The record would show consistent complaint of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements. Objective findings would show entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side would demonstrate positive evidence of impairment.

Severe disability includes a through and through or deep penetrating wound due to high-velocity missile, large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, and intermuscular binding and scarring. Service department records or other evidence would show hospitalization for a prolonged period for treatment of the wound. The record would show consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c) worse than those shown to moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings would show ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation would show loss of deep fascia or muscle substance, or soft flab by muscles in the wound area; muscles would swell and harden abnormally in contraction; tests of strength, endurance,
intermuscular binding and scarring. Service department records or other evidence would show hospitalization for a prolonged period for treatment of the wound. The record would show consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c) worse than those shown to moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings would show ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation would show loss of deep fascia or muscle substance, or soft flab by muscles in the wound area; muscles would swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. Other signs of severe muscle disability could include 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. 38 C.F.R. § 4.56.

Turning to the evidence of record, the Veteran underwent a VA muscle injuries examination in December 2020 where his chest wall muscle spasm caused severe pain in the front and sides of his chest wall. The severe pain stopped all activities until it subsided as he was unable to perform work at home or at the office. He was not receiving treatment for this condition.

An examination revealed muscle group XXI, muscles of respiration on both sides were affected. The Veteran's did not have loss of power, weakness, lowered threshold of fatigue, fatigue and/or pain, impairment of coordination, or uncertainty of movement.

The Veteran testified at the Board hearing that he experienced "blinding pain" "in his chest which caused him to "actually stop breathing." This occurred "[a]t least a couple of times a week or more" and "I won't be able to do anything at all until that pain that spasm stops."

Based on the above evidence, and affording the Veteran the benefit of the doubt, the Board finds the evidence is sufficient to establish a "record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability" (specifically, fatigue-pain) and that his severe chest pain required him to stop his activities until it submitted is analogous to a "lowered threshold of fatigue." The Veteran's costochondritis is therefore analogous to a "moderate" disability of the Group XXI muscles, warranting a 10 percent rating.

A higher, 20 percent rating for "moderately severe" disability under DC 5321 is not warranted. Even when making allowances for the fact that costochondritis will not perfectly fit the rating criteria for a muscle disability, the Veteran's symptoms do not approximate those described in the rating criteria for a "moderately severe" disability. The VA examiner found that the Veteran's costochondritis does not cause inability to keep up with work requirements, and this finding is uncontradicted by the Veteran's lay testimony and medical records. Strength testing at the December 2020 VA examination had normal results.

Entitlement to an evaluation of 10 percent, but no higher, for costochondritis is granted.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board H. Yoo, 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.

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