Citation Nr: 21066297 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 07-27 859 DATE: October 29, 2021 ORDER The appeal for an initial rating greater than 10 percent, for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine prior to July 2, 2007, is denied. A rating of 20 percent, but no higher, for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine, from July 2, 2007 to July 17, 2007, is granted subject to the laws and regulations governing payment of monetary benefits. The appeal for a rating greater than 20 percent for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine, from July 17, 2007, is denied. An initial evaluation of 20 percent for left shoulder impingement syndrome and degenerative arthritis, prior to May 23, 2016, is granted subject to the laws and regulations governing payment of monetary benefits. The appeal for a rating greater than 20 percent for left shoulder impingement syndrome and degenerative arthritis, is denied. The appeal for a compensable initial disability rating for intermittent facial numbness of the left side of the face, is denied. FINDINGS OF FACT 1. Prior to July 2, 2007, the Veteran's cervical spine disability was manifested by flexion to 30 degrees at worst, and combined range of motion of 210 degrees at worst; there was no evidence of muscle spasm or guarding resulting in abnormal spinal contour prior to July 2, 2007. 2. For the period from July 2, 2007 to July 17, 2007, the Veteran's cervical spine disability was productive of muscle spasm resulting in abnormal spinal contour and flexion to 30 degrees at worst, and combined range of motion of 210 degrees at worst. 3. Since the date of entitlement to service connection, the Veteran's left shoulder impingement syndrome and degenerative arthritis, was manifested by painful limitation of motion but motion was not limited to midway between the side and shoulder level at any time pertinent to the appeal. 4. Since the date of entitlement to service connection, the Veteran's intermittent facial numbness of the left side of the face was manifested by mild numbness of the upper, mid, and lower face affecting the fifth cranial nerve but objective testing of sensory evaluation and muscle strength was within normal limits. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine, prior to July 2, 2007, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Codes 5237-43. 2. The criteria for a rating of 20 percent, but no higher, for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine, from July 2, 2007 to July 17, 2007, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Codes 5237-43. 3. The criteria for a rating greater than 20 percent for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine, with straightening of the cervical curvature, from July 17, 2007, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Codes 5237-43. 4. The criteria for an initial evaluation of 20 percent for left shoulder impingement syndrome and degenerative arthritis, prior to May 23, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Code 5201. 5. The criteria for a rating greater than 20 percent for left shoulder impingement syndrome and degenerative arthritis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.71a, Diagnostic Code 5201. 6. The criteria for a compensable, initial disability rating for intermittent facial numbness of the left side of the face are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1-4.14, 4.124a, Diagnostic Codes 8399-8305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to June 1990, from February 1993 to June 1993, and from February 2005 to June 2006. This appeal was previously remanded by the Board in January 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Diagnostic Code 5003 provides ratings for degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The provisions of Diagnostic Code 5003 mandate that arthritis be rated based on limitation of motion. However, when the limitation of motion of a joint is non-compensable under the appropriate portion of the Schedule for Rating Disabilities, a 10 percent rating can be assigned for each major joint affected by limitation of motion, to include painful motion, caused by degenerative arthritis established by x-ray. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, a veteran is not entitled to separate compensable disability awards for both arthritis (under Diagnostic Code 5003) and limitation of motion (under another diagnostic code) in the same joint. Hicks v. Brown, 8 Vet. App. 417 (1995); Lichtenfels, 1 Vet. App at 488. Pursuant to 38 C.F.R. § 4.45 (f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). As explained in the January 2019 Board remand, the Board recharacterized the Veteran's claims as claims for higher initial ratings rather than claims for earlier effective dates for particular ratings, as the claims are more accurately addressed as claims for higher initial ratings. The AOJ addressed entitlement to earlier effective dates for the assignment of the increased ratings; however, because the Veteran's appeal originated from the November 2015 and January 2017 rating decisions that granted service connection, he is appealing the original assignment of a disability evaluation following an award of service connection. Thus, the Board is herein addressing the initial ratings assigned rather than the criteria for earlier effective dates. 1. Entitlement to an initial evaluation greater than 10 percent prior to July 17, 2007 and greater than 20 percent thereafter, for bulging annulus fibrosus at C5-C6 and C6-C7 of the cervical spine. In this case, the Board granted service connection for the cervical spine disorder in a March 2014 decision. The Board's decision was implemented in a November 2015 Rating Decision and assigned a 10 percent disability rating, effective June 16, 2006. The present appeal arises from disagreement with the initial rating assigned. During the pendency of the appeal, the agency of original jurisdiction (AOJ) increased the rating to 20 percent, effective January 24, 2017. See January 2017 Rating Decision. Then, following the January 2019 Board remand, the AOJ increased the rating for the cervical spine disability to 20 percent, effective July 17, 2007. See May 2021 Rating Decision. Thus, the question before the Board is whether the Veteran is entitled to an initial rating greater than 10 percent prior to July 17, 2007, and a rating greater than 20 percent thereafter. The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a 10 percent rating is warranted where there is combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spine contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine of 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran was provided with VA examinations of the cervical spine in January 2017, September 2017, and April 2021. As discussed in the January 2019 remand, the January 2017 and September 2017 VA examination reports were inadequate as the examiner did not report the range of motion test results for active and passive range of motion. The Board also notes that both the January 2017 and September 2017 VA examiners refused to offer an estimation, in terms of degrees, for range of motion during flare-ups or following repeated use over time. For these reasons, the Board will consider the Veteran's reports made during the January 2017 and September 2017 VA examination but places only a limited probative value on the objective findings. During the January 2017 VA examination, the Veteran reported flare-ups that resulted in the Veteran staying home all day and avoiding driving long distances. The Veteran also reported experiencing constant upper back pain described pressure/stabbing like pain sensation which radiated toward head and shoulder. Objective findings regarding range of motion included: flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees on the right and 25 degrees on the left, lateral rotation to 55 degrees on the right and 40 degrees on the left, all with objective evidence of pain. The examiner did not provide estimated range of motion findings following repeated use or during flare-ups and did not indicate whether range of motion testing was done on active and passive motion. The January 2017 VA examiner also noted that the Veteran did not have any muscle spasm but did have guarding that did not result in abnormal gait or abnormal spinal contour. The examiner noted that the functional impairment of the Veteran's disability was that the Veteran had to avoid lifting or carrying objects more than 20 pounds. During the September 2017 VA examination, the Veteran reported daily flare-ups that lasted for hours and resulted in loss of overhead activities. The Veteran also reported experiencing pain and spasms. The examiner confirmed that the Veteran had muscle spasms and guarding but that it did not result in an abnormal gait or abnormal spinal contour. The examiner noted that there was no ankylosis of the spine. The examiner noted that the Veteran did not have IVDS. With respect to range of motion findings, the examiner found the following objective findings: flexion to 25 degrees, extension to 25 degrees, lateral flexion to 20 degrees on the right and 30 degrees on the left, lateral rotation to 45 degrees on the right and 40 degrees on the left, all with objective evidence of pain. The examiner did not provide estimated range of motion findings following repeated use or during flare-ups and did not indicate whether range of motion testing was done on active and passive motion. During the April 2021 VA examination, the Veteran reported that since the initial injury in February 2006, during service, the Veteran had experienced neck pain. He also reported experiencing flare-ups two to three times per month since surgery was performed in July 2007. He reported that his flare-ups lasted for approximately one day. He reported having constant pain rated 5 out of 8. The described his flare-ups as moderate in severity. He reported that he could not drive properly because he had difficulty turning his neck to look from side to side. He also reported difficulty typing on a computer because he could not bend his neck. Objective findings regarding range of motion on active and passive testing included: flexion to 35 degrees, extension to 25 degrees, lateral flexion to 35 degrees on the right and 30 degrees on the left, lateral rotation to 55 degrees on the right and 60 degrees on the left, all with objective evidence of pain on active and passive motion with weight bearing and non-weight bearing. The examiner also noted that pain was also present in rest. The examiner estimated that range of motion after repeated use and flare-ups would be as follows: flexion to 30 degrees, extension to 20 degrees, lateral flexion to 30 degrees on the right and 25 degrees on the left, lateral rotation to 50 degrees on the right and 55 degrees on the left. The examiner based the estimation on the Veteran's reports as well as the findings noted following repetitive testing. The examiner noted that the Veteran had muscle spasm that resulted in abnormal neck spinal contour. The examiner noted that the Veteran did not have any guarding or ankylosis. The examiner noted that the Veteran's cervical spine disability affected the Veteran's ability to perform any type of occupational task such as bending his head to type on a computer or hold objects for a prolonged period of time. Resolving doubt in favor of the Veteran, the Board applies the April 2021 VA examination report findings to the entire period on appeal as the Board has already found the January 2017 and September 2017 VA examination findings regarding limitation of motion to be inadequate. See January 2019 Board remand. a. Entitlement to a rating greater than 10 percent prior to July 17, 2007. The AOJ assigned the 20 percent disability rating from July 17, 2007 as it that to be the first date that the facts showed that the Veteran had a muscle spasm that resulted in abnormal spinal contour. The Board has reviewed the evidence and notes that actually, a VA treatment record dated July 2, 2007 noted a finding of lost cervical lordosis as well as neck muscle spasm. Resolving any doubt in favor of the Veteran, the Board finds that the July 2, 2007 treatment record is the first indication of muscle spasm resulting in abnormal spinal contour. Thus, the Board finds the appeal for a higher rating prior to July 17, 2007 is granted from July 2, 2007. However, a rating greater than 20 percent is not warranted prior to July 2, 2007. In this regard, the July 2, 2007 VA treatment record is the earliest objective evidence of muscle spasms resulting in abnormal spinal contour. At no time during the period prior to July 2, 2007 was the Veteran's combined range of motion found to be limited to 170 degrees or less, nor was abnormal spinal contour shown. In reaching this conclusion, the Board has resolved doubt and applied the range of motion findings noted during the April 2021 VA examination to the entire period on appeal. Remaining VA and private treatment records do not indicate worse findings than those recorded during the April 2021 VA examination. The Board acknowledges the Veteran's belief that he is entitled to a higher initial rating for his cervical spine disorder; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. The Board has considered the DeLuca provisions in reaching these conclusions. The Board finds that the Veteran's pain with limited motion is accounted for in the initial 10 percent disability rating assigned. Further the 10 percent disability rating is the minimum compensable rating assignable under DC 5003 and the General Rating Formula for Diseases and Injuries of the Spine. A higher initial rating is not warranted. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The Board considered the applicability of the benefit of the doubt doctrine and applied the same where necessary to grant the claim for a 20 percent rating from July 2, 2007; however, the preponderance of the evidence is against the claim for an initial rating greater than 10 percent prior to July 2, 2007, for the Veteran's cervical spinal disability, and that doctrine does not apply. 38 U.S.C. § 5107. b. Entitlement to a rating greater than 20 percent from July 2, 2007. The Board finds that a rating greater than 20 percent is not warranted at any time from July 2, 2007, as forward flexion of the cervical spine has not been shown to be 15 degrees or less at any time, even during flare-ups or following repeated use. Further, favorable ankylosis of the entire cervical spine has not been shown. In reaching this conclusion, the Board notes the Veteran's combined range of motion during flare-ups and following repeated use was estimated to be 210 degrees during the April 2021 VA examination. VA treatment records did not include range of motion findings worse than those determined during the April 2021 VA examination. The Board acknowledges the Veteran's belief that he is entitled to a higher rating for his cervical spine disorder; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. The Board has considered the DeLuca provisions in reaching these conclusions. The Board finds that the Veteran's pain is accounted for in the 20 percent disability rating assigned from July 2, 2007. A higher rating is not warranted. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The Board has also considered whether separate ratings are warranted for any associated neurological disorders, pursuant to Note 1 to the General Rating Formula for Diseases and Injuries of the Spine. During the pendency of the appeal, the AOJ granted separate compensable ratings for bilateral upper extremity radiculopathy from July 17, 2007. See May 2021 Rating Decision. VA and private treatment records do not indicate objective findings of radiculopathy prior to July 17, 2007. Therefore, the Board finds that separate compensable ratings for radiculopathy are not warranted prior to July 17, 2007. The lay and medical evidence does not indicate that any other neurological conditions are resultant from the service-connected cervical spine disorder. Additionally, the Board notes that the Veteran is also in receipt of a separate rating for scarring associated with cervical spine surgery. In reaching the conclusions above, the Board considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim for a rating greater than 20 percent for the Veteran's cervical spinal disability since July 2, 2007. 38 U.S.C. § 5107. 2. Entitlement to an initial evaluation greater than 10 percent prior to May 23, 2016 and greater than 20 percent thereafter for left shoulder impingement syndrome and degenerative arthritis. In this case, service connection for the left shoulder disorder was granted in a January 2017 Rating Decision and assigned a noncompensable initial rating effective from June 16, 2006 to January 24, 2017 and 20 percent thereafter. The present appeal arises from disagreement with the initial rating assigned. During the pendency of the appeal, an initial 10 percent disability rating was assigned from June 16, 2006 to May 23, 2016, and 20 percent was assigned from May 23, 2016. See May 2021 Rating Decision. The Veteran's shoulder disability has been evaluated under Diagnostic Code 5003-5201. See 38 C.F.R. § 4.71a. Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. Diagnostic Code 5201, relating to limitation of motion of the arm, provides a minimum rating of 20 percent disabling where motion of the major or minor arm is limited to shoulder level (and a non-compensable rating for motion of the arm greater than shoulder level). A 30 percent evaluation is provided for limitation of motion of the major arm to midway between side and shoulder level, while a 20 percent evaluation is provided for the minor arm meeting these criteria. Maximum 40 percent and 30 percent evaluations are warranted for limitation of motion of the major arm and minor arm, respectively, to 25 degrees from side. 38 C.F.R. § 4.71a. Diagnostic Code 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder and 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder and 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder and 70 percent for the minor shoulder. 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides ratings for other impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Diagnostic Code 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. The Veteran was provided with a VA examination to evaluate the left shoulder in January 2017, which reflected that he is right-hand dominant. The Veteran reported experiencing flare-ups and that at such times, he was unable to lift heavy objects above shoulder level. The examiner noted that the Veteran had full muscle strength in the left shoulder and no ankylosis. The examiner also noted that the Veteran had a positive Hawkins' impingement test, negative empty-can test, negative external rotation/infraspinatus strength test, and negative lift-off subscapularis test. The examiner also noted that there was a history of shoulder instability with mechanical symptoms on the right but noted that there was no recurrent dislocation. The Crank apprehension and relocation test was negative. There was no clavicle, scapula, acromi clavicular (AC) joint or sternoclavicular joint condition suspected. The examiner noted that there was no loss of head, nonunion, or fibrous union of the humerus. The examiner noted that there was no malunion of the humerus with moderate or marked deformity. The January 2017 VA examiner noted that imagining studies had been performed and documented degenerative arthritis. On objective testing in January 2017, the Veteran had flexion to 130 degrees, abduction to 100 degrees, external rotation to 80 degrees, and internal rotation to 70 degrees, with objective evidence of pain in all. As discussed in the January 2019 Board remand, the January 2017 VA examination report is inadequate with respect to range of motion findings as the examiner did not test active and passive ranges of motion. The Board also observes that the examiner did not estimate the amount of the limitation of motion during flare-ups. For these reasons, the Board only affords the examiner's findings limited probative value. During the April 2021 VA examination, the Veteran reported that his left shoulder pain was an aching pain with intensity of 5 out of 10. The Veteran reported experiencing flare-ups 4-5 times per month and that they lasted one to two days each time. The Veteran also described pain during flare-ups as a stabbing pain, rated 8 out of 10 on the pain scale. The Veteran described functional loss as difficulty raising his arm, holding objects, and getting dressed. On objective testing of active and passive ranges of motion in April 2021, the Veteran had flexion to 65 degrees, abduction to 85 degrees, internal rotation to 35 degrees, and external rotation to 20 degrees, with pain in all ranges. The examiner noted that there was pain with weight-bearing, nonweight-bearing, active motion, passive motion, and on rest/non-movement. The examiner noted that the Veteran's loss of range of motion resulted in difficulty elevating arms, getting dressed, and holding objects. The examiner noted that there was objective evidence of crepitus, localized tenderness or pain on palpation of the joint or associated soft tissue that was moderate in severity. The April 2021 VA examiner also noted the following additional limitation of range of motion during repetitive use testing, the Veteran had flexion to 60 degrees, abduction to 80 degrees, internal rotation to 30 degrees, and external rotation to 19 degrees, with pain, fatigability, and weakness causing the functional loss. The examiner estimated that the Veteran would have these same range of motion findings following repeated use and during flare-ups. VA and private treatment records do not indicate worse findings than those recorded during the April 2021 VA examination. For the reasons explained below, the Board finds that an initial 20 percent disability rating but no higher is warranted for the period prior to May 23, 2016. As noted above, the AOJ initially assigned a non-compensable evaluation for the right shoulder under Diagnostic Code 5201 but, during the pendency of the appeal, increased the initial rating to 10 percent to account for the Veteran's painful limitation of motion in the left shoulder. See May 2021 Rating Decision. The Board finds that an initial 20 percent rating for painful limited motion of the left shoulder is warranted under the provisions of 38 C.F.R. § 4.59. The Veteran has credibly reported that throughout the entire period on appeal that he experienced painful motion that limited his ability to lift things and get dressed. See e.g. VA examination reports dated in January 2017, September 2017, and April 2021. The shoulder is a major joint and painful motion was credibly indicated. The AOJ confirmed the same when it assigned an initial 10 percent rating for painful limitation of motion for the Veteran's left shoulder impingement syndrome with degenerative arthritis. The minimum compensable rating for the shoulder is warranted based on the presence of painful limited motion under the provisions of 38 C.F.R. § 4.59. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). The Board concludes that the proper evaluation for painful motion of the left shoulder under 38 C.F.R. § 4.59 is 20 percent as this is the minimum amount of a compensable rating for limitation of motion of the shoulder. A rating greater than 20 percent is not warranted at any time as the evidence does not indicate that the Veteran has had motion limited to midway between the side and shoulder level at any time pertinent to the appeal. The Veteran does not assert otherwise. The Board has considered whether a higher rating is warranted under another diagnostic code but finds that it is not. In this regard, Diagnostic Codes 5200, 5202, or 5203 are not applicable to the left shoulder in this case. There is no evidence of ankylosis of the Veteran's left shoulder, thus rendering Diagnostic Code 5200 in applicable. See e.g. VA examination reports dated in January 2017, September 2017, and April 2021. Diagnostic Code 5202 is similarly inapplicable as the humerus is not noted to be impaired. Id. Further, there was no current clavicle or scapula disability noted in any of the VA examination reports. Thus, Diagnostic Code 5203 is not applicable. Thus, Board finds that an initial rating of 20 percent, but no higher, for painful limited motion of the left shoulder is warranted for the entire period on appeal. Because the shoulder is a major joint and painful motion has been competently indicated, the Board concludes that a 20 percent evaluation is warranted for painful limited motion. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that a compensable rating for painful motion may be considered for painful joints even without the presence of arthritis); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (a musculoskeletal disability must be rated based on the overall functional loss caused by factors under 38 C.F.R. §§ 4.40 and 4.45, to include pain and pain on movement). Accordingly, an initial 20 percent evaluation, but no higher, is granted for the left shoulder disability for the period prior to May 23, 2016. A rating greater than 20 percent is not warranted at any time. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine and applied the same where necessary; however, as the preponderance of the evidence is against an initial rating greater than 20 percent, that doctrine is not applicable. 38 U.S.C. § 5107. 3. Entitlement to an initial compensable rating for intermittent facial numbness of the left side of the face. Service connection for intermittent facial numbness on the left side of the face, was granted in a January 2017 Rating Decision and assigned a noncompensable rating effective July 25, 2007. The Veteran's intermittent facial numbness was rated by analogy under Diagnostic Code 8305 and assigned a noncompensable rating. DC 8305 applies to neuritis of the fifth cranial nerve. Under DC 8305, a 10 percent disability rating is warranted for moderate, incomplete impairment. A 30 percent disability rating is warranted for severe incomplete impairment and a 50 percent disability rating is warranted for complete paralysis. In a July 2007 statement, the Veteran requested service connection for facial numbness. The Veteran was provided with a VA cranial nerves examination in January 2017 that specifically addressed the facial numbness and found that it was related to the Veteran's traumatic brain injury (TBI). He was also provided VA examinations to address the TBI in December 2008 and April 2010. The December 2008 VA examination report did not address the Veteran's left side facial numbness. During the April 2010 VA TBI examination, the Veteran reported headaches in the left facial region with pulsating pain. The Veteran denied numbness generally. The examiner noted that there were no physical findings of cranial nerve dysfunction. During the January 2017 VA examination, the Veteran reported experiencing numbness and tingling of the left side of the face. The January 2017 VA examiner diagnosed intermittent facial numbness of the left side of the face and indicated that the fifth cranial nerve (trigeminal) was affected. The examiner noted that the Veteran had mild numbness of the upper, mid, and lower face. Muscle strength testing was normal for the fifth cranial nerve. Sensory examination was normal as well with respect to the upper face and forehead, mid face, and lower face. When offered the opportunity to select whether the Veteran's fifth cranial nerve was "not affected", "incomplete, moderate", "incomplete, severe", or "complete", the examiner determined that the Veteran's left cranial nerve was "not affected." VA and private treatment records did not indicate worse findings than those reported on the January 2017 VA examination report. In its January 2017 Rating Decision, the AOJ noted that the Veteran's facial numbness disability was not specifically listed in the rating schedule and that it was thus, rated analogously to a disability in which the functions affected, anatomical localization and symptoms were all closely related to the facial numbness disability. The AOJ determined that a compensable rating was not warranted unless the disability was moderate. For the reasons explained below, the Board agrees. The Board places a high probative value on the January 2017 VA examiner's assessment of the severity of the disability, specifically that it was not at least "moderate." The Board acknowledges that the Veteran experiences facial numbness but finds that because the objective evaluation, including sensory examination and muscle strength testing, was normal, the Board finds that the disorder is no more than mild. VA and private treatment records do not indicate otherwise. There are no medical opinions of record indicating that the Veteran's facial numbness disorder was at least moderate. The criteria for a compensable rating for the Veteran's symptoms under any applicable code, to include DC 8305, requires at least moderate incomplete paralysis, or moderate severity. The Board finds that the Veteran's disability, while symptomatic, has not reached the level of moderate severity at any point pertinent to the appeal. Thus, the appeal for a compensable initial rating must be denied. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher initial rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. In sum, the Board finds that the preponderance of the evidence supports the currently-assigned noncompensable disability rating and does not support a higher rating. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.