Citation Nr: 18115149 Decision Date: 07/02/18 Archive Date: 06/29/18 DOCKET NO. 12-30 114 DATE: July 2, 2018 ORDER A separate disability rating for the service-connected right shoulder disability under Diagnostic Code 5201, in addition to the 30 percent disability rating under Diagnostic Code 5202, for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, is denied. A separate disability rating for the service-connected right shoulder disability under Diagnostic Code 5203, in addition to the 30 percent disability rating under Diagnostic Code 5202, for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, is denied. FINDINGS OF FACT 1. A separate compensable rating under Diagnostic Code 5201 (in addition to the 30 percent rating under Diagnostic Code 5202) would compensate the Veteran twice for the same right shoulder symptoms including pain, limitation of motion due to pain, and functional impairment. 2. A separate compensable rating under Diagnostic Code 5203 (in addition to the 30 percent rating under Diagnostic Code 5202) for the right shoulder disability would compensate the Veteran twice for the same symptoms including pain, limitation of motion, and functional impairment. 3. The 30 percent rating assigned under Diagnostic Code 5202 is the most favorable disability rating for the service-connected right shoulder disability; alternative use of either Diagnostic Code 5201 or Diagnostic Code 5203 would not produce a higher rating percentage than 30 percent. CONCLUSIONS OF LAW 1. A separate compensable disability rating for limitation of motion of the right shoulder under Diagnostic Code 5201 for the periods on appeal from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, is precluded because it would constitute prohibited pyramiding of compensation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2017). 2. A separate compensable disability rating for impairment of the clavicle or scapula under Diagnostic Code 5203 for the periods on appeal from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, is precluded because it would constitute prohibited pyramiding of compensation. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2017). 3. The criteria for a higher rating than 30 percent for right shoulder disability are not met or more nearly approximated under any other potentially applicable rating criteria than Diagnostic Code 5202. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from June 1969 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in April 2016. The hearing transcript has been associated with the claims file. Service connection was granted for the right shoulder disability in a June 1973 rating decision, initially assigning a 20 percent disability rating under Diagnostic Code 5202. 38 C.F.R. § 4.71a (2017). The Veteran filed the current claim for increased rating on May 13, 2009. See May 13, 2009 VA Form 21-4138. The record reflects that the Veteran was in receipt of a temporary total (100 percent) rating following right shoulder surgery for the period from March 17, 2010 to June 17, 2010. See 38 C.F.R. § 4.30 (2017). Because the Veteran was in receipt of a 100 percent rating from March 17, 2010 to June 17, 2010, the Board will only address the periods or stages from May 13, 2009 to March 17, 2010 and from June 17, 2010 to July 28, 2015 with respect to the right shoulder. As to the period from July 28, 2015, the Veteran reported that he underwent total right shoulder replacement on July 28, 2015. See April 2016 Board hearing transcript. As such, the June 2016 Board decision bifurcated the issues pertaining to the right shoulder disability as listed on the Title page of the June 2016 Board decision in order to provide the Veteran with a favorable decision for the earlier periods and afford the Veteran the opportunity to provide additional evidence and argument with respect to the rating period from July 28, 2015. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (noting that it is permissible for VA to bifurcate a claim for service connection based on different theories) (en banc) aff’d 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that VA can bifurcate a claim and address different theories or arguments in separate decisions). Specifically, the June 2016 Board decision granted a higher rating of 30 percent for the right shoulder disability for the rating periods from May 13, 2009 to March 17, 2009, and from June 17, 2010 to July 28, 2015 under Diagnostic Code 5202, and remanded the issue of an increased rating in excess of 20 percent for the right shoulder disability for the period from July 28, 2015 to the Agency of Original Jurisdiction (AOJ) for additional development. The June 2016 Board decision also remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for additional development. In February 2017, the Secretary of VA and a representative of the Veteran (parties) filed a Joint Motion for Remand (JMR). In the JMR, the parties agreed that the Board did not provide an adequate statement of reasons and bases with respect to the question of a separate rating (in addition to the 30 percent rating under Diagnostic Code 5202) for the periods from May 13, 2009 to March 17, 2009, and from June 17, 2010 to July 28, 2015. The basis of the JMR agreement was that the Board did not consider separate rating criteria under which the right shoulder disability could potentially be rated, including Diagnostic Codes 5201 and 5203. 38 C.F.R. § 4.71a. In its February 23, 2018 decision, the Board denied a separate disability rating for the service-connected right shoulder disability for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015. Subsequently, in April 2018, the Veteran’s representative filed a Motion to Vacate, arguing that, prior to the Board’s February 23, 2018 decision, the undersigned Veterans Law Judge granted a 90-day motion for extension, ending on March 19, 2018. The Motion to Vacate indicated that, while the Board issued its decision on February 23, 2018, the Veteran had until March 19, 2018 to submit additional evidence. Subsequently, in May 2018, the Board vacated the February 23, 2018 Board decision denying a separate disability rating for the service-connected right shoulder disability for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015. The May 8, 2018 decision also granted a period of 30 days from the date of this Board decision to submit additional evidence and argument on the matter the Board had vacated. To date, and more than 30 days after the May 8, 2018 decision, no new evidence has been received from the Veteran or representative as it pertains to a separate rating for the service-connected right shoulder disability. An April 2018 statement reflects the representative wrote that VA did not consider the issue of a separate rating (in addition to the 30 percent rating under Diagnostic Code 5202) for the right shoulder under Diagnostic Code 5203. It is unclear whether the representative is referring to the June 2016 Board decision, which was partially vacated by the U.S. Court of Appeals for Veterans Claims (Court), or the February 2018 Board decision, which was vacated by the Board, as the (later vacated) February 2018 Board decision specifically considered whether a separate rating was warranted for the right shoulder under Diagnostic Code 5203. This Board decision fully complies with the basis of the partial JMR - to explain why a separate disability rating (in addition to the 30 percent disability rating granted under Diagnostic Code 5202) is not warranted under either Diagnostic Code 5201 or Diagnostic Code 5203. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR). As noted above, the June 2016 Board decision remanded the issues of an increased rating for the right shoulder disability for the period from July 28, 2015 and entitlement to a TDIU. The record reflects that the AOJ is still taking action on these issues, which have not been recertified to the Board. Accordingly, the issues of an increased rating for the right shoulder disability for the period from July 28, 2015 and entitlement to a TDIU will be subject to a later Board decision, if in order. No Further Notice or Assistance Required In this case, the Board’s June 2016 decision found that any duty imposed on VA, including the duties to assist and to provide notification, had been met. This finding was not raised or challenged before the Court, and was not subject of the JMR and Court order, so is not at issue. The remaining question remanded to the Board by the JMR is an ancillary rating question of whether a separate rating is warranted, and that based on the evidence that is of record and not in dispute; therefore, no further notice or assistance is required to simply provide the reasons and bases that the JMR requested. Whether a Separate Compensable Rating under Diagnostic Code 5201 The JMR did not disagree with the Board’s use of Diagnostic Code 5202 to grant a 30 percent disability rating under Diagnostic Code 5202 for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015; instead, the JMR only raised the question of whether a separate (i.e., additional) disability rating under either Diagnostic Code 5201 or Diagnostic Code 5203 for the shoulder disability (in addition to the 30 percent rating under Diagnostic Code 5202) should have been discussed by the Board. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Notably, in Lyles, the Court explained that “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” In Lyles, the Court also advised that “where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding.” As distinguished from Lyles, in this case, the Board finds that the 30 percent rating assigned under Diagnostic Code 5202 encompasses all functional limitations and impairments of the right shoulder, to include limitation of motion and guarding, such that a separate rating under either Diagnostic Code 5201 or Diagnostic Code 5203 would compensate the Veteran twice for the same symptoms including pain, limitation of motion due to pain, and functional impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. As such, and as discussed in detail below, the Veteran does not have any separately identifiable residual symptoms or functional impairment due to the right shoulder disability that is not already compensated by the 30 percent rating under Diagnostic Code 5202 that would warrant additional compensation. The Veteran is in receipt of a 30 percent schedular disability rating for right shoulder disability, rated as impairment of the humerus of the right shoulder, under Diagnostic Code 5202 for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015. Under Diagnostic Code 5202, a 30 percent disability rating is warranted when there is malunion of the humerus with marked deformity in the major upper extremity or recurrent dislocation of the scapulo-humeral joint of the major upper extremity with frequent episodes and guarding of all arm movements; a 50 percent disability rating is warranted when there is fibrous union of the humerus in the major upper extremity; a 60 percent disability rating is warranted when there is nonunion of the humerus (false flail joint) in the major upper extremity; and a maximum disability rating of 80 percent is warranted when there is loss of humerus head (flail shoulder) in the major upper extremity. 38 C.F.R. § 4.71a. In June 2016, the Board granted a higher 30 percent disability rating for the periods from May 13, 2009 to March 17, 2010 and from June 17, 2010 to July 28, 2015, under Diagnostic Code 5202, finding that the right shoulder disability resulted in recurrent dislocation with frequent episodes and guarding of all arm movements, painful motion, and weakness as to warrant the next higher rating of 30 percent. See June 2016 Board decision. The 30 percent rating specifically considered private treatment records showing right shoulder dislocations with loss of function and decreased range of motion, as well as the April 2016 Board hearing reflecting that the Veteran testified to recurrent right shoulder dislocations with major swelling, grinding, limitation of motion, weakened movement, and guarded actions as a result of the right shoulder disability. The Veteran’s representative did not disagree with the Board’s June 2016 favorable findings of fact used to rate the right shoulder disability as 30 percent disabling, analysis of right shoulder disability and functional impairment to more nearly approximate the 30 percent criteria under Diagnostic Code 5202, or any aspect of the Board’s analysis toward the grant of the 30 percent rating under Diagnostic Code 5202. The JMR expressly stated that the Board erred when it failed to consider separate rating criteria under Diagnostic Code 5201 and Diagnostic Code 5203. Under Diagnostic Code 5201 for right shoulder limitation of motion, a minimum 20 percent rating is warranted for limitation at the shoulder level. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a. Initially the Board finds that, in this case, a separate rating under Diagnostic Code 5201 is not available because Diagnostic Code 5202 (under which the Veteran is receipt of the 30 percent disability rating for recurrent dislocation) and Diagnostic Code 5201 both contemplate limitation of motion, including due to pain, which is described as guarding in Diagnostic Code 5202. Guarding is defined as an involuntary reaction to protect an area of pain. See “guarding.” Merriam-Webster Medical Dictionary. “Guarding” is also defined as a spasm of muscles to minimize motion or agitation of sites affected by injury or disease (https://medical-dictionary.thefreedictionary. com/guarding). Guarding may also be a sign detected during physical pain whereby the patient involuntarily contracts muscles second to pain. Mosby’s Dictionary of Complementary and Alternative Medicine. (c) 2005, Elsevier. All medical definitions of guarding involve the element of minimized or limited motion of the affected area due to injury or disease. That is, separate ratings distinguishing between right shoulder limitation of motion, including as due to pain, under Diagnostic Code 5201, and guarding due to pain or dislocations (Diagnostic Code 5202) would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 as guarding, by definition, includes limitation of right shoulder motion due to anticipation of right shoulder pain or dislocations under Diagnostic Code 5202. In this case, the right shoulder disability has been manifested by pain, and painful motion of the right shoulder, as well guarding (including due to dislocations), which are all specifically contemplated under Diagnostic Code 5202. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca. To the extent that Veteran has difficulties with shoulder or arm movement or elevation, such limitation of motion is specifically contemplated as guarding under Diagnostic Code 5202, such that rating the symptoms of limitation of motion and guarding causing limitation of motion would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptoms, constituting impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5202. In addition, it would be pyramiding to assign a separate rating under Diagnostic Code 5201 for limitation of elevation of the right shoulder that results in symptoms of dislocation, pain, and weakness as these symptoms are based in part on joint rating (Deluca) factors, which are fully contemplated under Diagnostic Code 5202 as dislocation with episodes of guarding due to pain and weakness. Rating the symptoms of dislocation with guarding (causing limitation of motion) as shoulder weakness and limitation of elevation under Diagnostic Code 5201 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomology as the 30 percent disability rating assigned under Diagnostic Code 5202, which already encompasses all functional limitations and impairments of the right shoulder, to include painful motion and weakness. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, DeLuca; see also Esteban, 6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition), Lyles 29 Vet. App at 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Further, all the symptomatology and impairment caused by the right shoulder disability has been specifically contemplated by (and compensated for) under Diagnostic Code 5202. The schedular rating criteria contemplate the Veteran’s right shoulder disability and the symptoms associated with such right shoulder disability, including limitation of motion and impairment of function, including due to pain and dislocations and weakness. The schedular rating criteria pertaining to the Veteran’s right shoulder disability provide for ratings based on limitation of motion, including due to pain and other orthopedic (DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59) factors such as weakness, incoordination, and fatigability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca at 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, No. 14-0217 (Vet. App. Feb. 12, 2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant’s disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). In this case, the right shoulder disability has been manifested by painful motion of the right shoulder, weakness, swelling, grinding, and recurrent dislocation with frequent episodes and guarding of all arm movements; these findings and symptoms are contemplated by the 30 percent schedular rating under Diagnostic Code 5202. To the extent that the Veteran has right shoulder stiffness, the symptom of stiffness limits shoulder motion, so is similar to painful motion, as it similarly limits motion; such limitation of right shoulder motion has also been considered in assigning the 30 percent schedular rating. The symptom of grinding is similar to crepitation, which is defined as a sound like that made by throwing water into a fire…the noise made by rubbing together the ends of a fractured bone. See Burton, 25 Vet. App. at 6 (quoting Dorland’s Illustrated Medical Dictionary 437 (31st ed. 2007). Crepitation is considered under the schedular rating criteria under 38 C.F.R. § 4.59 (Crepitation whether 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). To the extent that grinding was painful, and caused limitation of right shoulder motion, this symptom has been considered under limitation of motion due to pain, weakness, incoordination, or fatigability, and flare-ups of pain, which are incorporated into the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also DeLuca. Similarly, to the extent that swelling caused right shoulder pain or limitation of motion, this symptom has been considered under limitation of motion due to pain, weakness, incoordination, or fatigability, and flare-ups of pain, which are incorporated into the schedular rating criteria. See id. All the symptomatology and impairment caused by the right shoulder disability has been specifically contemplated by the 30 percent disability rating under Diagnostic Code 5202, to include the symptoms associated with such disability including limitation of motion and impairment of function; therefore, the Board’s grant of a 30 percent rating shows the Veteran received a 10 percent higher rating (higher compensation) for the additional functional impairment of the right shoulder, which included both dislocations and pain, both of which limited right shoulder motion, and both of which have been “compensated” by the additional compensation granted by the higher 30 percent rating under Diagnostic Code 5202. See Lyles, 29 Vet. App at 107. As such, a separate rating under Diagnostic Code 5201 would compensate twice for the same symptoms, limitation of motion, and functional impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. Id. For these reasons, a separate compensable disability rating for limitation of motion of the right shoulder under Diagnostic Code 5201 for the periods on appeal from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015 is precluded because it would constitute prohibited pyramiding of compensation. See 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5202. Whether a Separate Compensable Rating under Diagnostic Code 5203 The JMR also raised the question of whether a separate (i.e., additional) disability rating is warranted under Diagnostic Code 5203 due to mild edema in the clavicle. See JMR. Diagnostic Code 5203 provides ratings based on impairment of the clavicle or scapula. Under Diagnostic Code 5203, a 10 percent disability rating is warranted for malunion or nonunion of the clavicle or scapula without loose movement. A 20 percent disability rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. 38 C.F.R. § 4.71a. Alternatively, Diagnostic Code 5203 directs that impairment of the clavicle or scapula be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. The Board finds that, in this case, a separate rating under Diagnostic Code 5203 is not available because Diagnostic Code 5202 (under which the Veteran is receipt of the 30 percent disability rating for recurrent dislocations) and Diagnostic Code 5203 both contemplate limitation of motion of arm movement. In this case, there is no other functional limitation of the right shoulder or clavicle or scapula identified that has not been captured by Diagnostic Code 5202 as the 30 percent rating under Diagnostic Code 5202 includes both dislocations and limitation of motion (guarding of all arm movements, including due to pain and dislocations). That is, separate ratings distinguishing between nonunion (of clavicle or scapula with shoulder) with loose movement (or analogous to loose movements) under Diagnostic Code 5203 would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 as these symptoms are based in part on joint rating (Deluca) factors, which are fully contemplated under Diagnostic Code 5202 as dislocation with episodes of guarding due to pain and weakness. In this case, the right shoulder disability has been manifested by pain and painful motion of the right shoulder, as well as guarding and dislocations, which are all specifically contemplated under Diagnostic Code 5202. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca. Rating the symptoms of dislocation with guarding (causing limitation of motion) as nonunion with loose movement or analogous to loose movement under Diagnostic Code 5203 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomatology as the 30 percent disability rating assigned under Diagnostic Code 5202 already encompasses all functional limitations and impairments of the right shoulder, to include painful motion and weakness. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, DeLuca; see also Esteban, Lyles. Specifically, with regard to the question of whether a separate disability rating is warranted under Diagnostic Code 5203 based on a finding of mild edema in the clavicle, edema is defined as an excess accumulation of serous fluid in connective tissue or in a serous cavity. See Merriam-Webster Medical Dictionary. To the extent that Veteran has difficulties with shoulder or arm movement, even if the limited movement were due to edema, such limitation of motion is specifically contemplated as guarding under Diagnostic Code 5202. Compensating the symptoms of limitation of motion due to edema and guarding that cause limitation of motion would result in compensating the Veteran twice for the same symptoms, constituting impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5202. It would be pyramiding to assign a separate rating under Diagnostic Code 5203 for dislocation, malunion, or nonunion based on a finding of mild edema because a finding of the presence of edema (swelling) in the clavicle does not show actual impairment of the clavicle or scapula, and any impairment that it did show would be right shoulder impairment (limitation of right shoulder motion) that is already compensated. Separate ratings distinguishing between fluid buildup that causes less movement than normal under Diagnostic Code 5203 and guarding (which is limited movement specifically rated under Diagnostic Code 5202) would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 because guarding, by definition, includes limitation of motion or right shoulder movement that in this case has been rated under Diagnostic Code 5202. In this case, if impairment of the clavicle or scapula in fact manifested as symptoms of dislocation, malunion, or nonunion, a separate rating under Diagnostic Code 5203 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomology as the 30 percent disability rating assigned under Diagnostic Code 5202 already encompasses all functional limitations and impairments of the right shoulder, to include painful motion (described as guarding) and dislocation. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, DeLuca; see also Esteban, 6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition), Lyles 29 Vet. App at 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For these reasons, a separate compensable disability rating for limitation of motion of the right shoulder under Diagnostic Code 5203 for the periods on appeal from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, is precluded because it would constitute prohibited pyramiding of compensation. See 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5202. Consideration of Alternative Rating Criteria While separate ratings are precluded due to pyramiding, the Board has additionally considered other potentially applicable alternative diagnostic codes to provide the Veteran with the most beneficial disability rating for the right shoulder disability. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case” and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board finds no basis to consider the criteria of Diagnostic Code 5200 because the weight of the evidence shows that the Veteran does not have ankylosis of scapulohumeral articulation. Under Diagnostic Code 5201 for limitation of motion, a 20 percent rating is warranted for limitation at shoulder level. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. In this case, the weight of the evidence does not reflect limitation of motion to 25 degrees from the side as required for a higher 40 percent rating under Diagnostic Code 5201. See August 2009, September 2016 VA examination reports. As such, the alternative use of Diagnostic Code 5201 would not produce a higher rating percentage than 30 percent. In this case, the right shoulder had been rated as 30 percent disabling under Diagnostic Code 5202 (the most favorable and applicable Diagnostic Code), which is higher than the 20 percent rating available under Diagnostic Code 5203 for impairment of the clavicle or scapula. As such, the alternative use of Diagnostic Code 5203 would not produce a higher rating percentage than 30 percent. Further, the evidence reflects the Veteran first underwent right shoulder replacement surgery in July 2015 (for which service connection has already been granted, effective July 28, 2015); therefore, there is no basis to consider Diagnostic Code 5051 for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015. In addition, any right shoulder arthritis does not warrant a separate rating because, to the extent arthritis causes pain, tenderness, stiffness, or limitation of motion due to pain, these symptoms have already been contemplated in the 30 percent rating assigned under Diagnostic Code 5202, which fully contemplates arthritis and all related pain, stiffness, and limitation of motion due to pain and stiffness; therefore, an assignment of an additional rating based on these same symptoms would constitute pyramiding. See 38 C.F.R. § 4.14; Esteban at 261-62; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca. In this case, the right shoulder disability has been rated as 30 percent disabling from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, which is higher than the 10 percent rating provided for noncompensable limitation of motion under Diagnostic Code 5003; therefore, a higher or separate rating for arthritis under Diagnostic Code 5003 is not legally possible. Finally, the June 2016 Board decision indicated that, during the April 2016 Board hearing, the Veteran reported that he reviewed the shoulder rating criteria and stated that the service-connected right shoulder disability meets the 30 percent rating criteria under Diagnostic Code 5202, but does not meet the 40 or 50 percent rating criteria under Diagnostic Code 5202. The Board concluded that a fair reading of the Veteran’s statement demonstrated that the assignment of a 30 percent disability rating for the periods from May 13, 2009 to March 17, 2010, and from June 17, 2010 to July 28, 2015, satisfied the Veteran’s appeal as to the issue for these periods. The finding was not raised or challenged before the Court, and was not subject of the JMR and Court order, so is not at issue. In this case, the Board’s June 2016 decision found that the schedular rating criteria were adequate to rate the right shoulder disability, and, therefore, referral for extraschedular evaluation under 38 C.F.R. § 3.321(b) was not warranted. This finding was not raised or challenged before the Court, and was not subject of the JMR and Court order, so is not at issue. J. Parker Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel