Citation Nr: 20028812 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 15-17 480 DATE: April 24, 2020 ORDER An initial disability rating in excess of 20 percent for left shoulder degenerative arthritis is denied. An initial disability rating in excess of 20 percent prior to July 5, 2016, and in excess of 30 percent thereafter for right shoulder degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder degenerative arthritis has not manifested by at least limitation of motion to 25 degrees from side, ankylosis, or impairment of the humerus, clavicle, or scapula. 2. Prior to July 5, 2016, the Veteran’s service-connected right shoulder disability was not manifested by at least limitation of motion to midway between the side and shoulder level, ankylosis, or impairment of the humerus, clavicle or scapula. 3. Since July 5, 2016, the Veteran’s service-connected right shoulder disability was not manifested by at least limitation of motion to 25 degrees from side, ankylosis, or impairment of the humerus, clavicle or scapula. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left shoulder degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201. 2. The criteria for entitlement to a rating in excess of 20 percent prior to July 5, 2016, and in excess of 30 percent thereafter for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5110(a); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1953 to June 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and July 2014 rating decisions and was most recently remanded by the Board in December 2019. Following the Board’s remand, a February 2020 rating decision granted entitlement to a 30 percent evaluation for degenerative arthritis, right shoulder, effective July 5, 2016. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already 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). In addition, the appeal contemplates “staged ratings” where warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. An initial disability rating in excess of 20 percent for left shoulder degenerative arthritis In a June 2013 VA rating decision, service connection for left shoulder disability was granted. The Veteran was assigned a 10 percent disability rating effective from July 15, 2004, a 20 percent disability rating from February 8, 2012, and a 10 percent disability rating for his left shoulder disability from April 12, 2013. See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. During the course of the appeal, in a March 2018 VA rating decision, the AOJ assigned a 20 percent disability rating for painful motion throughout the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. Since the 20 percent disability rating is not the maximum rating available the issue has been returned to the Board and characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Board considers whether an initial rating in excess of 20 percent for left shoulder disability is warranted in this case. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5003 when limitation of motion is noncompensable, a 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. While the service-connected right shoulder disability is manifested by arthritis, a rating in excess of 20 percent is not available under Diagnostic Code 5003. Diagnostic Code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. This would mean the Veteran’s ability to lift his arm would need to be reduced to 90 degrees. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level, which means that flexion or abduction would need to be reduced to 45 degrees. Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side. Id. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. In this case, the January 2020 Disability Benefits Questionnaire (DBQ) examination report documents the Veteran is right hand dominant, thus the service-connected right shoulder disability is the major extremity. After review of the evidence, the Board finds that the Veteran’s service-connected left shoulder disability was not manifested by at least motion limited to 25 degrees from the side. In July 2004, the Veteran stated that his shoulders were a constant problem and he could hardly raise his arms at times. He further noted when he forced himself to raise them there was terrible pain; however, he didn’t have to raise them for there to be pain and noted they hurt all the time. At the October 2010 VA examination, the Veteran reported his shoulder ached all the time. He also reported weakness, stiffness, some swelling and tenderness to touch. He denied flare-ups and reported his symptoms were constant. He could not lift anything above his head due to his shoulders. Upon clinical evaluation, he demonstrated left shoulder flexion to 170 degrees, with pain at 90 degrees; abduction to 160, with pain at 80 degrees; external rotation to 70 degrees, with pain at 70 degrees; and internal rotation to 90 degrees, with pain at 90 degrees. With repetition of range of motion there was no change in the function noted. The VA examiner rendered a diagnosis of bilateral shoulder degenerative joint disease. At the February 2012 VA examination the Veteran reported flare-ups of shoulder pain when he tried to work with his arms at or above chest level; however, his arms hurt all the time while eating or driving a car. He reported his shoulder pain was pretty much constant. Upon clinical evaluation, he demonstrated left shoulder flexion to 115 degrees, with painful motion beginning at 75 degrees and abduction to 90 degrees, with painful motion beginning at 75 degrees. Repetitive use testing did not result in additional limitation in range of motion, but less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement were noted. Muscle strength testing was normal and there was no ankylosis. There was no guarding of the shoulder. There was a positive Hawkins’ impingement test, empty-can test, and external rotation/infraspinatus strength test. Indicating rotator cuff pathology. There was also a positive crank apprehension and relocation test. There was no impairment of the clavicle or scapula. The examiner noted the functional impact of the shoulder condition on the Veteran’s ability to work would be difficulty lifting anything to his shoulder height and constant pain. At the April 2013 VA examination for shoulder and arm conditions, the Veteran reported daily pain and denied flare-ups. Upon clinical evaluation, he demonstrated left shoulder flexion and abduction to 125 degrees, with painful motion beginning at 120 degrees. Repetitive use testing did not result in additional limitation in range of motion, but less movement than normal, weakened movement, and pain on movement were noted. There was no guarding of the shoulder. Muscle strength testing was normal. There was no ankylosis. There were no rotator cuff conditions. There was no instability, dislocation, or labral pathology. There was no impairment of the clavicle or scapula. The examiner noted the functional impact of the shoulder condition on the Veteran’s ability to work would be difficulty overhead, lifting over five pounds with his right hand, and difficulty putting on a shirt. In a February 2014 substantive appeal, the Veteran again reported that he could barely raise his arms to shoulder length without intense pain and that any kind of movement in his shoulders was painful. At the February 2014 VA examination for shoulder and arm conditions, the Veteran reported flare-ups that weakened him in the arms and hands. He noted they sometimes popped or cracked and hurt. Upon clinical evaluation, he demonstrated left shoulder flexion to 110 degrees, with painful motion beginning at 90 degrees and abduction to 110 degrees, with painful motion beginning at 80 degrees. Repetitive use testing result in limitation in range of motion of flexion and abduction to 110 degrees. The functional loss was noted as less movement than normal and pain on movement. The degree of range of motion loss during pain on use or flare-ups was approximately five degrees in bilateral shoulder flexion, abduction, internal and external rotation. There was no guarding of the shoulder. Muscle strength testing was normal. There was no ankylosis. There was no rotator cuff condition. There was no instability, dislocation, or labral pathology. There was a positive cross-body adduction test. The examiner noted the Veteran’s shoulder condition did not impact his ability to work. In April 2014, the Veteran explained that he could move his arms up and down and side to side to some degree, but every movement was painful. At the June 2014 VA examination for shoulder and arm conditions, the Veteran reported flare-ups that resulted in a weak arm with pain down the arm. Upon clinical evaluation, he demonstrated left shoulder flexion to 110 degrees, with painful motion beginning at 105 degrees and abduction to 110 degrees, with painful motion beginning at 100 degrees. Repetitive use testing result in additional limitation in range of motion of flexion to 105 degrees and abduction to 100 degrees. The functional loss was noted as less movement than normal and pain on movement. The degree of range of motion loss during pain on use or flare-ups was difficult to assess and the examiner stated he could not evaluate the limitation on range of motion without resorting to mere speculation even though the pain was evident on examination and could further decrease range of motion. There was localized tenderness and guarding of the shoulder. Muscle strength testing was normal. There was no ankylosis. There were no rotator cuff conditions. There was no instability, dislocation, or labral pathology. There was no impairment of the clavicle or scapula. The examiner noted the Veteran’s shoulder condition did not impact his ability to work. In July 2014, the Veteran again reported that he was in constant pain and any pressure hurt. He further noted that he was not paralyzed and could move his arms, but every movement of his arms hurt his shoulders. He noted that even putting pressure on a pen while writing hurt his shoulder. In August 2014, the Veteran further stated that he was on constant pain whether he was sitting still or using a five-pound weight. In November 2014, the Veteran acknowledged that his shoulders had good days and bad days, but they hurt all the time. In May 2015, the Veteran reported that he could move his arms and shoulders, but that every movement hurt. He stated it was painful to reach for his razor in the medicine cabinet, to get out of bed, or to get a plate from the cabinet. At the December 2016 VA DBQ examination for shoulder and arm conditions, the Veteran reported constant shoulder and arm pain that moved down his arms to his hands, as well as flare-ups that were worse during cold weather and were described as a sharp pain that moved from the shoulder down the arm and into the hand. During a flare-up he reported difficulty moving his arm and shoulder and any movement caused pain. He further reported difficulty holding objects in his hand and loss of control of fingers. His arms seemed heavy all the time and he was unable to lift heavy objects or use his arms for an extended period of time. Upon clinical evaluation, he demonstrated left shoulder flexion and abduction to 90 degrees. Pain was noted on examination and caused functional loss. Repetitive use testing result in additional limitation in range of motion of flexion and abduction to 85 degrees due to pain and lack of endurance. Repeated use over time resulted in flexion and abduction to 80 degrees due to pain and lack of endurance. Flare-ups resulted in flexion and abduction to 75 degrees due to pain and lack of endurance. Additional factors contributing to disability were less movement than normal and weakened movement. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. There were no rotator cuff conditions, shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work by difficulty with lifting, reaching above head, pushing, and pulling. A December 2016 VA opinion noted the Veteran’s bilateral shoulder degenerative arthritis at least as likely as not rendered him unable to secure and maintain substantial gainful employment. The examiner noted the Veteran had difficulty with lifting, reaching overhead, pushing, and pulling. The Veteran had pain while pushing on a pen to write, sleeping, turning a steering wheel, putting a seatbelt on, getting dressed and undressed, showering, and shaving. In March 2018, the Veteran reported that his shoulder pain had worsened. The pain moved down to his hands and he had pain all the time. At the September 2019 VA DBQ examination for shoulder and arm conditions, the Veteran reported constant shoulder and arm pain that moved down his arms to his hands and his strength had diminished. The Veteran further reported mild to severe flare-ups that occurred all the time. There was functional loss; however, the Veteran did not give a description of the functional loss. Upon clinical evaluation, he demonstrated left shoulder flexion to 100 degrees and abduction to 80 degrees. Pain was noted on examination and caused functional loss. Repetitive use testing did not result in additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Flare-ups resulted in flexion to 85 degrees and abduction to 70 degrees due to pain. Muscle strength testing was 3/5 and there was no muscle atrophy. There was no ankylosis. There were no rotator cuff conditions, shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work by prohibiting him from raising his arms above shoulder level, lifting over 10-15 pounds, throwing, doing push/pull ups or swinging a baseball bat. The examiner noted the effect on sedentary employment was minimal due to aching shoulders. At the January 2020 VA DBQ examination for shoulder and arm conditions, the Veteran reported pain and stiffness in the shoulder. Flare-ups resulted increased pain and stiffness in the shoulder making it difficult to dress and undress and perform daily activities such as shaving, eating, and driving. Upon clinical evaluation, he demonstrated left shoulder flexion and abduction to 70 degrees. This resulted in functional loss such as difficulty dressing and undressing and lifting objects above shoulder level. Pain was noted on examination in all planes. The examiner stated that the Veteran was being tested immediately after repeated use over time. There were no findings of additional functional loss or range of motion after three repetitions or repetitive use over time. Repeated use over time resulted in flexion and abduction to 50 degrees due to pain. Flare-ups resulted in flexion and abduction to 40 degrees due to pain. Muscle strength testing was 4/5 and there was no muscle atrophy. There was no ankylosis. A rotator cuff condition was suspected, but the Veteran was unable to perform testing. There were no shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work by difficulty dressing and undressing, lifting more than 2 pounds, writing, eating, shaving, and driving. The examiner further noted there was objective evidence of pain in non-weight bearing and passive range of motion was the same as active range of motion. VA treatment records documented the Veteran reported constant shoulder pain, especially with movement above shoulder level, throughout the appeal period. The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 20 percent disability rating. In fact, his range of motion findings of the left shoulder were, at worst, to 40 degrees flexion and to 40 degrees abduction, which is contemplated in the currently assigned 20 percent disability rating. To meet the 30 percent criteria, motion would need to be limited to 25 degrees from the side. As a result, an initial rating in excess of 20 percent is denied for the service-connected right shoulder disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additional Considerations Diagnostic Code 5200 provides higher ratings of 30, 40, and 50 percent, the maximum available, for ankylosis of the major arm. See 38 C.F.R. § 4.71a. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint”); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Review of the evidentiary record does not indicate the service-connected left shoulder disability has been manifested by ankylosis to warrant an initial rating in excess of 20 percent at any time during the appeal period. In fact, VA treatment records and the VA examination reports document active range of motion findings of the Veteran’s left shoulder and no ankylosis. Diagnostic Code 5202 provides higher ratings of 30, 50, 60, and 80 percent, the maximum available, for impairment of the humerus. See 38 C.F.R. § 4.71a. For the major arm, a 30 percent rating is warranted for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements; a 50 percent rating is warranted for fibrous union of the humerus; a 60 percent rating is warranted for nonunion of the humerus (false flail joint); and a 80 percent rating, the maximum available, is warranted for loss of head of the humerus (flail shoulder). Id. Review of the evidentiary record does not indicate the service-connected left shoulder disability has been manifested by impairment of the humerus to warrant an initial rating in excess of 20 percent at any time during the appeal period. In fact, the December 2016, September 2019 and January 2020 VA DBQ examination reports document no impairment of the left humerus. The Board has considered other potentially applicable Diagnostic Codes. See Schafrath, 1 Vet. App. at 595. In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the shoulder that the Veteran’s left shoulder disability is more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Accordingly, higher initial ratings under alternate Diagnostic Codes is not warranted. After a review of the evidence discussed above, the Board finds that the functional equivalent of motion limited to 25 degrees from the side, ankylosis, or impairment of the humerus, clavicle, or scapula are not shown at any time during the appeal period. Such findings were not shown, even when considering the Veteran’s reported symptomatology for the service-connected left shoulder disability. Moreover, the currently assigned 20 percent disability rating was assigned for painful motion. The Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant an initial rating in excess of 20 percent for the service-connected left shoulder disability at any time during the appeal under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. The Board has considered the Veteran’s statements during the appellate period regarding his functional limitation, to include pain, weakness, fatigability and incoordination, when rating the Veteran’s left shoulder disability. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran could not lift any weight above his head would not result in symptoms more nearly approximating the limitation of motion of the arm to 25 degrees from the side of the minor extremity. His statements indicated that while it was painful to reach for dishes in the cabinet above his head and put on his shirts, he was able perform these activities of daily living, albeit with pain. As such, the Board finds that an initial rating in excess of 20 percent for the service-connected left shoulder disability is not warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. An initial disability rating in excess of 20 percent prior to July 5, 2016, and in excess of 30 percent thereafter for right shoulder degenerative arthritis In a June 2013 VA rating decision, service connection for right shoulder disability was granted. The Veteran was assigned a 10 percent disability rating effective from July 15, 2004, a 20 percent disability rating from February 8, 2012, and a 10 percent disability rating for his right shoulder disability from April 12, 2013. See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. During the course of the appeal, in a March 2018 VA rating decision, the AOJ assigned a 20 percent disability rating for painful motion throughout the appeal period. In a February 2020 VA rating decision, the AOJ assigned a 30 percent disability rating for limited motion of the arm midway between the side and shoulder level effective July 5, 2016. See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. Since the 20 and 30 percent disability ratings are not the maximum ratings available the issue has been returned to the Board and characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Board considers whether an initial rating in excess of 20 percent prior to July 5, 2016, and in excess of 30 percent thereafter for right shoulder disability is warranted in this case. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5003 when limitation of motion is noncompensable, a 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. While the service-connected right shoulder disability is manifested by arthritis, a rating in excess of 20 percent is not available under Diagnostic Code 5003. Diagnostic Code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. This would mean the Veteran’s ability to lift his arm would need to be reduced to 90 degrees. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level, which means that flexion or abduction would need to be reduced to 45 degrees. Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side. Id. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. In this case, the January 2020 Disability Benefits Questionnaire (DBQ) examination report documents the Veteran is right hand dominant, thus the service-connected right shoulder disability is the major extremity. Rating in excess of 20 percent prior to July 5, 2016 After review of the evidence for the appeal period prior to July 5, 2016, the Board finds that the Veteran’s service-connected right shoulder disability was not manifested by at least motion limited to midway between side and shoulder level. In July 2004, the Veteran stated that his shoulders were a constant problem and he could hardly raise his arms at times. He further noted when he forced himself to raise them there was terrible pain; however, he didn’t have to raise them for there to be pain and noted they hurt all the time. At the October 2010 VA examination, the Veteran reported his shoulder ached all the time. He also reported weakness, stiffness, some swelling and tenderness to touch. He denied flare-ups and reported his symptoms were constant. He could not lift anything above his head due to his shoulders. Upon clinical evaluation, he demonstrated right shoulder flexion to 170 degrees, with pain at 90 degrees; abduction to 160, with pain at 80 degrees; external rotation to 70 degrees, with pain at 70 degrees; and internal rotation to 90 degrees, with pain at 90 degrees. With repetition of range of motion there was no change in the function noted. The VA examiner rendered a diagnosis of bilateral shoulder degenerative joint disease. At the February 2012 VA examination the Veteran reported flare-ups of shoulder pain when he tried to work with his arms at or above chest level; however, his arms hurt all the time while eating or driving a car. He reported his shoulder pain was pretty much constant. Upon clinical evaluation, he demonstrated right shoulder flexion to 115 degrees, with painful motion beginning at 75 degrees and abduction to 90 degrees, with painful motion beginning at 75 degrees. Repetitive use testing did not result in additional limitation in range of motion, but less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement were noted. Muscle strength testing was normal and there was no ankylosis. There was no guarding of the shoulder. There was a positive Hawkins’ impingement test, empty-can test, and external rotation/infraspinatus strength test. Indicating rotator cuff pathology. There was also a positive crank apprehension and relocation test. There was no impairment of the clavicle or scapula. The examiner noted the functional impact of the shoulder condition on the Veteran’s ability to work would be difficulty lifting anything to his shoulder height and constant pain. At the April 2013 VA examination for shoulder and arm conditions, the Veteran reported daily pain and denied flare-ups. Upon clinical evaluation, he demonstrated right shoulder flexion to 100 degrees, with painful motion beginning at 90 degrees (shoulder level) and abduction to 95 degrees, with painful motion beginning at 90 degrees. Repetitive use testing did not result in additional limitation in range of motion, but less movement than normal, weakened movement, and pain on movement were noted. There was no guarding of the shoulder. Muscle strength testing was 4/5. There was no ankylosis. There were positive Hawkins’ impingement test and empty-cans tests, but negative external rotation/infraspinatus strength and lift-off subscapularis tests. There was no history of recurrent dislocation of the glenohumeral joint. There was no impairment of the clavicle or scapula. The examiner noted the functional impact of the shoulder condition on the Veteran’s ability to work would be difficulty overhead, lifting over five pounds with his right hand, and difficulty putting on a shirt. In a July 2013 notice of disagreement, the Veteran noted that at the examination the examiner asked him to hold his right arm out from his side and move it back and tell her when it hurt. He said he moved his arm about five to six inches and then told her it hurt. He also noted there was a lack of communication during the examination. In a February 2014 substantive appeal, the Veteran again reported that he could barely raise his arms to shoulder length without intense pain and that any kind of movement in his shoulders was painful. At the February 2014 VA examination for shoulder and arm conditions, the Veteran reported flare-ups that weakened him in the arms and hands. He noted they sometimes popped or cracked and hurt. Upon clinical evaluation, he demonstrated right shoulder flexion to 130 degrees, with painful motion beginning at 100 degrees and abduction to 110 degrees, with painful motion beginning at 70 degrees. Repetitive use testing result in additional limitation in range of motion of abduction to 100 degrees. The functional loss was noted as less movement than normal and pain on movement. The degree of range of motion loss during pain on use or flare-ups was approximately five degrees in bilateral shoulder flexion, abduction, internal and external rotation. There was no guarding of the shoulder. Muscle strength testing was normal. There was no ankylosis. There were negative Hawkins’ impingement test, empty-cans test, external rotation/infraspinatus strength test, and lift-off subscapularis test. There was no history of recurrent dislocation of the glenohumeral joint. There was a positive cross-body adduction test. The examiner noted the Veteran’s shoulder condition did not impact his ability to work. In April 2014, the Veteran explained that he could move his arms up and down and side to side to some degree, but every movement was painful. At the June 2014 VA examination for shoulder and arm conditions, the Veteran reported flare-ups that resulted in a weak arm with pain down the arm. Upon clinical evaluation, he demonstrated right shoulder flexion to 115 degrees, with painful motion beginning at 110 degrees and abduction to 105 degrees, with painful motion beginning at 95 degrees. Repetitive use testing result in additional limitation in range of motion of flexion to 110 degrees and abduction to 95 degrees. The functional loss was noted as less movement than normal and pain on movement. The degree of range of motion loss during pain on use or flare-ups was difficult to assess and the examiner stated he could not evaluate the limitation on range of motion without resorting to mere speculation even though the pain was evident on examination and could further decrease range of motion. There was localized tenderness and guarding of the shoulder. Muscle strength testing was normal. There was no ankylosis. There was no shoulder instability, dislocation or labral pathology. There was no history of recurrent dislocation of the glenohumeral joint. There was no impairment of the clavicle or scapula. The examiner noted the Veteran’s shoulder condition did not impact his ability to work. In July 2014, the Veteran again reported that he was in constant pain and any pressure hurt. He further noted that he was not paralyzed and could move his arms, but every movement of his arms hurt his shoulders. He noted that even putting pressure on a pen while writing hurt his shoulder. In August 2014, the Veteran further stated that he was on constant pain whether he was sitting still or using a five-pound weight. In November 2014, the Veteran acknowledged that his shoulders had good days and bad days, but they hurt all the time. In May 2015, the Veteran reported that he could move his arms and shoulders, but that every movement hurt. He stated it was painful to reach for his razor in the medicine cabinet, to get out of bed, or to get a plate from the cabinet. VA treatment records documented the Veteran reported constant shoulder pain, especially with movement above shoulder level, throughout the appeal period. The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 20 percent disability rating. In fact, his range of motion findings of the right shoulder were, at worst, to 75 degrees flexion with pain and to 70 degrees abduction with pain, which is contemplated in the currently assigned 20 percent disability rating. To meet the 30 percent criteria, flexion or abduction would need to be reduced to 45 degrees. As a result, an initial rating in excess of 20 percent prior to July 5, 2016, is denied for the service-connected right shoulder disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Rating in excess of 30 percent since July 5, 2016 After review of the evidence for the appeal period since July 5, 2016, the Board finds that the Veteran’s service-connected right shoulder disability has not been manifested by at least motion limited to 25 degrees from the side. At the December 2016 VA DBQ examination for shoulder and arm conditions, the Veteran reported constant shoulder and arm pain that moved down his arms to his hands, as well as flare-ups that were worse during cold weather and were described as a sharp pain that moved from the shoulder down the arm and into the hand. During a flare-up he reported difficulty moving his arm and shoulder and any movement caused pain. He further reported difficulty holding objects in his hand and loss of control of fingers. His arms seemed heavy all the time and he was unable to lift heavy objects or use his arms for an extended period of time. Upon clinical evaluation, he demonstrated right shoulder flexion and abduction to 90 degrees. Pain was noted on examination and caused functional loss. Repetitive use testing result in additional limitation in range of motion of flexion and abduction to 85 degrees due to pain and lack of endurance. Repeated use over time resulted in flexion and abduction to 80 degrees due to pain and lack of endurance. Flare-ups resulted in flexion and abduction to 75 degrees due to pain and lack of endurance. Additional factors contributing to disability were less movement than normal and weakened movement. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. There were no rotator cuff conditions, shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work through difficulty with lifting, reaching above head, pushing, and pulling. A December 2016 VA opinion noted the Veteran’s bilateral shoulder degenerative arthritis at least as likely as not rendered him unable to secure and maintain substantial gainful employment. The examiner noted the Veteran had difficulty with lifting, reaching overhead, pushing, and pulling. The Veteran had pain while pushing on a pen to write, sleeping, turning a steering wheel, putting a seatbelt on, getting dressed and undressed, showering, and shaving. In August 2017, the Veteran reported he had no feeling in his little and ring finger on the right hand. He stated the pain in his shoulder ran down his arm to his hand. In March 2018, the Veteran reported that his shoulder pain had worsened. The pain moved down to his hands and he had pain all the time. At the September 2019 VA DBQ examination for shoulder and arm conditions, the Veteran reported constant shoulder and arm pain that moved down his arms to his hands and his strength had diminished. The Veteran further reported moderate to severe flare-ups that occurred all the time. There was functional loss; however, the Veteran did not give a description of the functional loss. Upon clinical evaluation, he demonstrated right shoulder flexion to 95 degrees and abduction to 80 degrees. Pain was noted on examination and caused functional loss. Repetitive use testing did not result in additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Flare-ups resulted in flexion and abduction to 80 degrees due to pain. Muscle strength testing was 3/5 and there was no muscle atrophy. There was no ankylosis. There were no rotator cuff conditions, shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work by prohibiting him from raising his arms above shoulder level, lifting over 10-15 pounds, throwing, doing push/pull ups or swinging a baseball bat. The examiner noted the effect on sedentary employment was minimal due to aching shoulders. At the January 2020 VA DBQ examination for shoulder and arm conditions, the Veteran reported pain and stiffness in the shoulder. Flare-ups resulted increased pain and stiffness in the shoulder making it difficult to dress and undress and perform daily activities such as shaving, eating, and driving. Upon clinical evaluation, he demonstrated right shoulder flexion and abduction to 70 degrees. This resulted in functional loss such as difficulty dressing and undressing and lifting objects above shoulder level. Pain was noted on examination in all planes. The examiner stated that the Veteran was being tested immediately after repeated use over time. There were no findings of additional functional loss or range of motion after three repetitions or repetitive use over time. Repeated use over time resulted in flexion and abduction to 50 degrees due to pain. Flare-ups resulted in flexion and abduction to 40 degrees due to pain. Muscle strength testing was 4/5 and there was no muscle atrophy. There was no ankylosis. A rotator cuff condition was suspected, but the Veteran was unable to perform testing. There were no shoulder instability, dislocation or labral pathology, clavicle or scapula conditions, or conditions or impairments of the humerus. The examiner noted the Veteran’s shoulder condition impacted his ability to work through difficulty dressing and undressing, lifting more than 2 pounds, writing, eating, shaving, and driving. The examiner further noted there was objective evidence of pain in non-weight bearing and passive range of motion was the same as active range of motion. The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 30 percent disability rating. In fact, his range of motion findings of the right shoulder were, at worst, to 40 degrees flexion and to 40 degrees abduction, which is contemplated in the currently assigned 30 percent disability rating. To meet the 40 percent criteria, motion would need to be limited to 25 degrees from the side. As a result, an initial rating in excess of 30 percent since July 5, 2016, is denied for the service-connected right shoulder disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additional Considerations Diagnostic Code 5200 provides higher ratings of 30, 40, and 50 percent, the maximum available, for ankylosis of the major arm. See 38 C.F.R. § 4.71a. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint”); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Review of the evidentiary record does not indicate the service-connected right shoulder disability has been manifested by ankylosis to warrant an initial rating in excess of 20 percent at any time prior to July 5, 2016, or in excess of 30 percent at any time thereafter. In fact, VA treatment records and the VA examination reports document active range of motion findings of the Veteran’s right shoulder and no ankylosis. Diagnostic Code 5202 provides higher ratings of 30, 50, 60, and 80 percent, the maximum available, for impairment of the humerus. See 38 C.F.R. § 4.71a. For the major arm, a 30 percent rating is warranted for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements; a 50 percent rating is warranted for fibrous union of the humerus; a 60 percent rating is warranted for nonunion of the humerus (false flail joint); and a 80 percent rating, the maximum available, is warranted for loss of head of the humerus (flail shoulder). Id. Review of the evidentiary record does not indicate the service-connected right shoulder disability has been manifested by impairment of the humerus to warrant an initial rating in excess of 20 percent at any time prior to July 5, 2016, or in excess of 30 percent at any time thereafter. In fact, the December 2016, September 2019 and January 2020 VA DBQ examination reports document no impairment of the right humerus. The Board has considered other potentially applicable Diagnostic Codes. See Schafrath, 1 Vet. App. at 595. In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the shoulder that the Veteran’s right shoulder disability is more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Accordingly, higher initial ratings under alternate Diagnostic Codes is not warranted. After a review of the evidence discussed above, the Board finds that the functional equivalent of motion limited to midway between side and shoulder level (flexion or abduction reduced to 45 degrees or less), ankylosis, or impairment of the humerus is not shown at any time during the appeal prior to July 5, 2016. Moreover, the Board finds that the functional equivalent of motion limited to 25 degrees from the side, ankylosis, or impairment of the humerus, clavicle, or scapula are not shown at any time during the appeal since July 5, 2016. Such findings were not shown, even when considering the Veteran’s reported symptomatology for the service-connected right shoulder disability. Moreover, the currently assigned 20 percent disability rating was assigned for painful motion, as noted in the February 2019 VA rating decision. The Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant an initial rating in excess of 20 or 30 percent for the service-connected right shoulder disability at any time during the appeal under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. The Board has considered the Veteran’s statements during the appellate period regarding his functional limitation, to include pain, weakness, fatigability and incoordination, when rating the Veteran’s right shoulder disability. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran could not lift any weight above his head would not result in symptoms more nearly approximating the limitation of motion of the arm to 25 degrees from the side of the major extremity. His statements indicated that while it was painful to reach for dishes in the cabinet above his head and put on his shirts, he was able perform these activities of daily living, albeit with pain. As such, the Board finds that an initial rating in excess of 20 percent prior to July 5, 2016, and in excess of 30 percent thereafter for the service-connected right shoulder disability is not warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.