Citation Nr: 18153582 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-15 740A DATE: November 28, 2018 ORDER A 10 percent disability rating for service-connected left knee subluxation is restored, effective December 11, 2012. Entitlement to a disability rating in excess of 10 percent for left knee subluxation is denied. Entitlement to a 30 percent rating, but not higher, for a right shoulder disability is granted, subject to the laws and regulations governing monetary awards. FINDINGS OF FACT 1. In a January 2013 rating decision, the RO reduced the evaluation assigned for left knee subluxation from 10 percent to noncompensable, effective from December 11, 2012. 2. As a result of the RO’s reduction of the evaluation for left knee subluxation from 10 percent to noncompensable, effective from December 11, 2012, the Veteran’s combined evaluation was reduced from 90 percent to 80 percent as of that date. 3. The Veteran was not given proper due process notice regarding the procedures and rights under 38 C.F.R. § 3.105, as it relates to implementation of a reduction of the evaluation for left knee subluxation. 4. For the entire appeal period, the Veteran’s left knee disability manifested as no more than slight recurrent subluxation or lateral instability. 5. For the entire appeal period, the Veteran’s right shoulder disability was productive of frequent episodes of recurrent dislocation at the scapulohumeral joint and guarding of all arm movements, with no loss of the humeral head or nonunion of the shoulder joint or fibrous union of the humerus; no ankylosis; and the arm was not limited in motion to 25 degrees from the side. CONCLUSIONS OF LAW 1. The reduction of the Veteran’s left knee subluxation rating is void ab initio, and the criteria for restoration of the 10 percent rating for this condition are met. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The criteria for a disability rating in excess of 10 percent for left knee subluxation were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5257 (2017). 3. For the entire appeal period, the criteria for assignment of a 30 percent rating, but not higher, for a right shoulder disability were met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to April 1997. He died in September 2013 with the instant claim pending on appeal. For claimants who died on or after October 10, 2008, as in the instant case, the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C. § 5121A, which permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. The appellant, who is the Veteran’s surviving child, requested to be substituted for the Veteran pursuant to 38 U.S.C. § 5121A. In a June 2014 letter, the Regional Office (RO) granted the appellant’s request for substitution. Accordingly, the Board will address the claim with the appellant as the substituted party. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, reduced the evaluation for a service-connected right shoulder disability from 20 percent to 10 percent, reduced the evaluation for service-connected left knee subluxation from 10 percent to noncompensable, and denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). By way of background, the Veteran was granted service connection for a left knee disability in a July 2010 rating decision, at which time he was assigned an initial 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5014 for osteomalacia with limited and painful motion, and an initial 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for slight recurrent subluxation or lateral instability. The July 2010 rating decision also increased the rating for a right shoulder disability from noncompensable to 20 percent, effective from October 7, 2009. In February 2012, the Veteran requested increased evaluations for his left knee and right shoulder disabilities, as well as entitlement to a TDIU. Thereafter, in the January 2013 rating decision on appeal, the RO continued the 10 percent rating for left knee osteomalacia, reduced the rating for left knee subluxation from 10 percent to noncompensable, reduced the rating for a right shoulder disability from 20 percent to 10 percent, and denied entitlement to a TDIU. Regarding the characterization of the issues on appeal, the Board notes that the propriety of a rating reduction is a separate issue from a claim for an increased evaluation. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (holding that the Board “incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellant’s rating from 100% to 10% was proper”); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”). In this case, however, the reductions actually stem from VA examinations conducted in connection with a claim for increased evaluations. Moreover, in numerous statements, the Veteran indicated that he was seeking increased ratings for his right shoulder and left knee subluxation in addition to restoration of the 20 percent and 10 percent ratings, respectively. Specifically, in his April 2013 notice of disagreement, the Veteran not only requested restoration of the previous ratings, he also indicated that the ratings should be increased as his disabilities had worsened. Similarly, in the cover letter to the April 2013 notice of disagreement, the Veteran’s representative noted the issues in disagreement as entitlement to increased ratings for a right shoulder condition and left knee subluxation. Further, the February 2016 statement of the case listed the issues as entitlement to increased ratings for a right shoulder disability and left knee subluxation, provided the applicable rating criteria for right shoulder and left knee disabilities, summarized the relevant evidence that included the Veteran’s reported symptoms and VA examination reports, applied the schedular rating criteria to the findings, and essentially considered whether a higher rating was warranted. See also October 2017 Supplemental Statement of the Case (listing the issues as “Evaluation of residuals, right shoulder injury, status post Bankart repair (dominant) at greater than 20 percent disabling” and “Evaluation of left knee subluxation at greater than a noncompensable evaluation”). Under these circumstances, the issues are phrased to include claims for increased ratings for a right shoulder disability and left knee subluxation. See Percy v. Shinseki, 23 Vet. App. (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue). As for a procedural explanation as to how the increased rating issues are on appeal, the January 2013 rating decision, which was issued in response to a claim for increased ratings, constitutes adjudication and implicit denial of the increased rating issues; by the reduction actions, the RO also implicitly denied increased ratings in excess of 20 percent for a right shoulder disability and in excess of 10 percent for left knee subluxation. The Veteran’s April 2013 notice of disagreement to the reductions is sufficient to constitute a notice of disagreement with the implicit denial of increased ratings in excess of 20 percent and 10 percent, respectively. Moreover, the February 2016 statement of the case, which styled the issues on appeal as entitlement to increased ratings, provided the applicable rating criteria for shoulder and knee disabilities, summarized the relevant evidence that included the Veteran’s reported symptoms and VA examination reports, applied the schedular rating criteria to the findings, and, in making made the finding that the criteria for 20 percent (shoulder) and 10 percent (knee) ratings were not warranted, implicitly found that the criteria for ratings higher than 20 percent (shoulder) and 10 percent (knee). Thus, April 2016 substantive appeal was sufficient to place the issues of increased ratings on appeal. On the other hand, although the RO continued a 10 percent rating for a left knee chondromalacia based on limitation of motion in the January 2013 rating decision, the Board concludes that this issue is not part and parcel of the issue on appeal. Unlike the issue of the evaluation of left knee subluxation, the RO did not treat the issue of an increased rating for left knee chondromalacia as part of the instant appeal, nor was the issue addressed in the February 2016 statement of the case or October 2017 supplemental statement of the case. Accordingly, the sole left knee increased rating issue on appeal is left knee subluxation. In an October 2017 rating decision, the RO restored a 20 percent evaluation for the Veteran’s right shoulder disability, effective from October 7, 2009. The restoration of the prior evaluation constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the issue of the propriety of the rating reduction for a right shoulder disability is not on appeal, and no further consideration is necessary. In the October 2017 rating decision, the RO also granted entitlement to a TDIU, effective from February 24, 2012. In the October 2017 supplemental statement of the case, the RO listed the issue of entitlement to a TDIU prior to February 24, 2012, as an issue on appeal. However, the Board notes that the Veteran’s claim for increased ratings and a TDIU was filed on February 24, 2012. Accordingly, as this grant of a TDIU spans the entire period on appeal, it constituted a full grant of the benefits sought on appeal, and the issue of entitlement to TDIU is no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant’s case was certified to the Board in May 2016. In November 2017, the appellant’s attorney submitted a letter to purporting to withdraw as the appellant’s representative. Pursuant to 38 C.F.R. § 20.608 (b)(2), after an appeal has been certified to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion, and motion must be in writing and must comply with the criteria set forth in 38 C.F.R. § 20.608 (b)(2). Here, the November 2017 submission does not comply with the stated provisions for a post-certification withdrawal. Therefore, the Board concludes that Ralph J. Bratch is still the appellant’s representative in this matter. I. Rating Reduction-Left Knee Subluxation There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Procedurally, where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons supporting the proposed reduction. 38 C.F.R. § 3.105 (e). The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and must be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. In the January 2013 rating decision on appeal, the RO increased the assigned evaluation for PTSD from 50 percent to 70 percent, effective from February 24, 2012; increased the assigned rating for painful scars from noncompensable to 10 percent, effective from February 24, 2012; reduced the evaluation assigned for a right shoulder disability from 20 percent to 10 percent, effective from December 11, 2012; and reduced the evaluation assigned evaluation for left knee subluxation from 10 percent to noncompensable, effective from December 11, 2012. The RO stated in the January 2013 rating decision and accompanying notification letter that the rating reductions did not cause the Veteran’s combined evaluation to be reduced, and thus, 38 C.F.R. § 3.105 (e) was not applicable. The Board disagrees. It appears that the RO reasoned that the Veteran’s combined evaluation was not reduced because the increased ratings for PTSD and scars and the reductions for a right shoulder disability and left knee subluxation were undertaken in a simultaneous rating action, and thus, his combined evaluation was 80 percent before and after issuance of the January 2013 rating decision. However, because the increased ratings were made effective prior to the effective date of the rating reduction for his left knee subluxation, the Veteran’s combined evaluation was, indeed, reduced. The Code Sheet section of the January 2013 rating decision reflects that the Veteran’s combined evaluation, as assigned pursuant to 38 C.F.R. § 4.25, was increased from 80 percent to 90 percent, effective on February 24, 2012, (the effective date of the increased ratings), and then reduced from 90 percent to 80 percent, effective on December 11, 2012 (the effective date of the reduction of left knee subluxation). In sum, although the increased ratings and the rating reduction were adjudicated in the same rating decision, and the Veteran’s combined evaluation remained constant before and after issuance of this rating decision, the Veteran’s monthly rate of compensation was reduced from 90 percent to 80 percent on December 11, 2012, the effective date of the reduction. In light of above, the Board concludes that there was a reduction in the amount of compensation payable, and thus, contrary to the RO’s conclusion, the provisions of 38 C.F.R. § 3.105 (e) are applicable in this case. See VAOPGCPREC 71-91 (Nov. 1991); see also VAOPGCPREC 29-97 (Aug. 1997). Importantly, the RO did not satisfy any of the due process requirements under 38 C.F.R. § 3.105 (e) with regard to the Veteran’s reduction. Specifically, (1) the RO did not provide the Veteran with a rating proposing the reduction or discontinuance which set forth all material facts and reasons, (2) the Veteran was not notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level, and (3) the Veteran was not informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e). The Board notes that this regulation was established to serve as a procedural protection against improper reductions of disability ratings. The United States Court of Appeals for Veterans Claims (the Court) has consistently held that when an RO reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Thus, the Board finds that rating reduction implemented in the January 2013 rating decision, effective December 11, 2012, was improper and thus void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Accordingly, the 10 percent evaluation for left knee subluxation is reinstated. II. Increased Ratings Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. 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.”). A. Left Knee Subluxation The Veteran was in receipt of a 10 percent rating pursuant to Diagnostic Code 5257. He contended that a higher rating was warranted. As noted above, the Veteran was also in receipt of a 10 percent evaluation for a left knee disability based on limitation of motion; however, this rating is not on appeal. Under Diagnostic Code 5257, a 10 percent rating is warranted where there is slight recurrent subluxation or lateral instability, a 20 percent rating is warranted where there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted where there is severe recurrent subluxation or lateral instability. The Board observes that the words “slight,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board also notes that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are inapplicable to ratings under DC 5257 because that Code is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Turning to the evidence of record, a February 2012 VA treatment record shows that the Veteran reported wearing a knee brace daily because his left knee joint sometimes feels like it gives out on him. He also reported that he used a cane at all times so that he does not fall when his knee gives out. A June 2012 VA left knee x-ray showed no abnormalities. A September 2012 VA left knee x-ray showed intact bones, no degenerative changes, and unremarkable soft tissues and joint compartments. The Veteran was afforded a VA examination in December 2012. He reported frequent left knee instability. Joint stability testing was normal; however, the examiner noted a history of recurrent patellar subluxation/dislocation. The examiner indicated that there was no x-ray evidence of patellar subluxation. In an April 2013 statement, the Veteran reported that his left knee gave out ten times per month, requiring him to use a knee brace and cane. After careful review of the evidentiary record, the Board concludes that an evaluation in excess of 10 percent is not warranted for left knee subluxation/instability. In this regard, although the Veteran consistently reported that his left knee frequently gave out, the December 2012 VA examination found no ligamentous instability and no x-ray evidence of patellar subluxation. The Board acknowledges that “DC 5257 doesn’t speak to the type of evidence required and, thus, objective medical evidence isn’t required to establish lateral knee instability under that DC.” English v. Wilkie, No. 17-2083, slip op. at 1 and 2 (U.S. Vet. App. Nov. 1, 2018) (panel decision). Thus, objective medical or clinical evidence of instability, such as examination findings, are not categorically more probative than lay evidence. Further, as with pain, such symptoms as subluxation and instability are subjectively experienced and lay evidence of such symptoms is by its very nature subjective in nature. Perceptions of subjective sensations, e.g., pain, subluxation, instability, may vary significantly from one person to another as can the description of both the actual symptoms and the subjective perception of the function impact of such symptoms. However, objective clinical tests, being standardized, provide a better means of determining the overall dysfunction due to a disability. Range of motion testing is one such test, and another is testing of range of motion after repetition of motion. Likewise, instability, is capable to objective measurement, in terms of the range of instability or subluxation as measured in millimeters. For example, a proposed regulatory amendment of 38 C.F.R. § 4.71a, DC 5257 intends to consider the degree of joint translation in establishing three grades of subluxation or instability, with Grade 1 being defined as 0 – 5 millimeters (mms.), Grade 2 being 6 – 10 mms., and Grade 3 being equal to or greater than 11 mms. See 82 Fed. Reg. 35728 (Aug. 1, 2017). In this case, based on the Veteran’s subjective complaints of frequent giving way of the left knee and his use of a left knee brace for added stability, the Board concludes that he had slight instability which is encompassed in the current 10 percent disability rating. However, given the absence of corroborating clinical findings of virtually any instability the Board must find that the Veteran did not have such instability as to equate with moderate instability. The Board concludes that the collective medical and lay evidence does not indicate that the Veteran’s left knee subluxation meets the criteria for an evaluation in excess of 10 percent. Accordingly, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. B. Right Shoulder Disability The Veteran was in receipt of 20 percent rating for a right shoulder disability pursuant to Diagnostic Code 5201. Legal Criteria Diagnostic Codes 5200 through 5203 address disability ratings for the shoulder and arm. Diagnostic Code 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. 38 C.F.R. § 4.71a. Diagnostic Code 5201 provides that limitation of motion of the major arm at shoulder level is rated as 20 percent; limitation of motion of the major arm to midway between the side and shoulder level is rated as 30 percent; and limitation of motion of the major arm to 25 degrees from the side is rated as 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. With respect to the major arm, Diagnostic Code 5202 provides that impairment of the humerus is rated as 20 percent with recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; impairment of the humerus is rated as 30 percent with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements; impairment of the humerus is rated as 50 percent with fibrous union; impairment of the humerus is rated as 60 percent with nonunion (false flail joint); and impairment of the humerus is rated as 80 percent with loss of head (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202. Under Diagnostic Code 5203, a 20 percent evaluation, the maximum available under this section, is assignable for dislocation of the clavicle or scapula, or nonunion with loose movement. This code also allows that alternatively, the disability may be rated on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by x-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71, Plate I, defines normal ranges of motion of the shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Fact and Analysis A February 2012 VA treatment record shows that the Veteran reported chronic right shoulder pain. On examination, his shoulder was very tender to palpation, and abduction was noted to be limited to approximately 90 degrees. A June 2012 VA shoulder x-ray showed mild glenohumeral and AC joint DJD, with no fracture or dislocation. A September 2012 VA shoulder x-ray showed intact bones and an unremarkable AC joint. There was an elongated calcified density adjacent to the humeral head anteriorly suggesting tendon calcification. The Veteran was afforded a VA examination in December 2012. He reported daily, severe mechanical shoulder pain and shoulder instability. The examiner indicated that the Veteran’s dominant hand was his right hand. The Veteran did not report flare-ups of right shoulder pain. Range of motion testing revealed flexion to 110 degrees, with objective evidence of painful motion at zero degrees and abduction to 105 degrees, with objective evidence of painful motion at zero degrees. Internal and external rotation were normal. There was no additional limitation of motion after three repetitions; however, the Veteran had functional loss due to less movement than normal and pain on movement. There was no apparent weakness, fatigability, or loss of coordination during or following three repetitions. The Veteran had pain on palpation of the joints/soft tissue/biceps and there was evidence of guarding. Muscle strength testing was normal, and there was no evidence of ankylosis of the shoulder joint. The Hawkins’ Impingement and empty-can tests were positive, but the external rotation/infraspinatus strength and left-off subscapularis tests were negative. The examiner noted a history of mechanical symptoms. The examiner also indicated that there was a history of recurrent dislocation of the scapulohumeral joint, with frequent episodes. The examiner did not indicate whether there was guarding of movement only at shoulder level or guarding of all arm movements. There was no evidence of an AC joint condition or any other impairment of the clavicle or scapula. Having carefully considered the Veteran’s contentions in light of the evidence recorded and the applicable law, and resolving all reasonable doubt in favor of the Veteran, for the entire rating period, the Veteran’s right shoulder disability was productive of frequent episodes of recurrent dislocation and guarding of all arm movement, which warrants a 30 percent rating for the right shoulder under Diagnostic Code 5202. The Board has considered whether a higher rating is appropriate at any point under an analogous diagnostic code. To warrant a higher rating under Diagnostic Code 5202, shoulder dislocations must manifest as fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus, which is not demonstrated in this case, even taking into account the Veteran’s functional impairments due to pain and guarding. A higher rating would also be warranted under Diagnostic Code 5200 for ankylosis, which is not demonstrated in this case. At all times during the rating period, the Veteran had at least some range of motion in his right shoulder. Moreover, the December 2012 VA examiner noted no ankylosis. A higher rating is not available under Diagnostic Code 5203, nor was impairment of the clavicle or scapula demonstrated. As for ratings based on limitation of motion of the arm, the Veteran’s right shoulder disability was manifested, at worst, by limitation of motion of the arm to shoulder level, which warrants a 20 percent rating for the right shoulder. Thus, rating the Veteran under Diagnostic Code 5201 would not be more advantageous to the Veteran. Moreover, even acknowledging that the Veteran’s pain, guarding, and limitation of movement may have at times resulted in additional functional loss than that objectively demonstrated, and even when such functional limitations are considered, the preponderance of the evidence is against entitlement to an evaluation in excess of 30 percent for limitation of motion. In this regard, the reported ranges of motion did not meet or approximate the criteria for even a 30 percent rating under the diagnostic code rating limitation of motion. As noted above, the Veteran’s abduction was, at worst, limited to 90 degrees during a February 2012 VA primary care visit, and flexion was limited to 110 degrees, with pain, during the December 2012 VA examination. Thus, given the objective findings of limitation of motion of the right shoulder to, at worst, shoulder level, the preponderance of the evidence is against a finding that the Veteran’s right shoulder disability resulted in disability comparable to limitation of motion of the arm to 25 degrees from the side, i.e., abduction or flexion limited to 25 degrees, the criterion for the maximum 40 percent evaluation under Diagnostic Code 5201, even considering pain and other functional limitations. The Board also notes that separate ratings are not available under Diagnostic Codes 5201 and 5202 as they both contemplate limitation of motion (described as guarding in DC 5202), and separate ratings would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14. Additionally, the Veteran’s rating under Diagnostic Code 5202 encompasses his entire shoulder disability, including the evidence of pain, guarding, and recurrent dislocations. As such, separate ratings under Diagnostic Codes 5201 and 5202 would improperly constitute ratings for duplicative or overlapping symptomatology. Similarly, the Board acknowledges a diagnosis of degenerative joint disease of the right shoulder established by x-ray findings, but finds that a separate rating for arthritis (degenerative disease) is not warranted under DC 5003 or 5010, because the Veteran is already in receipt of a compensable rating for limitation of motion of the joint. Moreover, the evidence in this case shows that the 30 percent rating assigned appropriately compensates the Veteran to the extent that he did have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The Board accepts that the Veteran experienced shoulder symptomatology, especially pain and guarding. However, the Board finds that the 30 percent disability evaluation assigned herein contemplates the degree of pain and functional impairment for the right shoulder. The evidence during this period clearly reflects that the Veteran’s range of motion was affected by some pain and weakness; however, he was still able to consistently accomplish right shoulder range of motion as noted above, which warrants, at most, a 20 percent rating for limitation of motion (i.e., flexion to, at worst, 110 degrees, or greater than shoulder level, and abduction to, at worst, 90 degrees, or at shoulder level). Further, the Veteran did not report, nor were there objective findings of, excess weakness, fatigability, or incoordination. (Continued on the next page)   The Board concludes that the objective medical evidence and the Veteran’s statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 30 percent disability rating for the right shoulder for the entire period on appeal. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel