Citation Nr: 18159997 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-62 268 DATE: December 20, 2018 ORDER Entitlement to an initial compensable rating for a right shoulder disability prior to November 16, 2016 is denied. FINDING OF FACT Even in consideration of her complaints of pain, pain on motion, and functional loss, the Veteran’s right shoulder disability has not manifested limitation of motion of the arm at shoulder level. CONCLUSION OF LAW The criteria for an initial compensable rating for a right shoulder disability prior to November 16, 2016 are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION This matter stems from an October 2013 rating decision that assigned a noncompensable rating for tendonitis of the right shoulder, after granting service connection for the same. The Veteran initiated an appeal as to the assigned rating. A November 2016 decision increased rating to 20 percent, effective from November 16, 2016. In response thereto, the Veteran filed his substantive appeal wherein he limited to the scope the appeal to the assignment of the effective date of the increase. The issue has been characterized to reflect the limited scope of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial compensable rating for a right shoulder disability prior to November 16, 2016. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 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. 38 C.F.R. § 4.45 requires consideration 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.”). The Veteran’s right shoulder disability is rated under Diagnostic Code 5201 for limitation of motion of the arm. For the major side, a 20 percent rating requires limitation of motion of the arm at shoulder level. The Veteran is not entitled to a 20 percent rating for her right shoulder disability prior to November 16, 2016. The evidence of record, including the September 2013 VA examination report, shows that right shoulder flexion and abduction was normal with no objective evidence of painful motion. Such does not constitute limitation of motion of the arm at shoulder level required for a 20 percent rating under Diagnostic Code 5201. The Board has considered whether the Veteran’s disability warrants a higher rating under any other relevant diagnostic code, but determined that none are applicable. The Board has also considered whether a higher rating for the Veteran’s right shoulder disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. As indicated on the September 2013 examination report, there was no additional limitation (functional loss) experienced by the Veteran due to pain upon range of motion testing. As to the lay statements describing worsening symptomology, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel