Citation Nr: 21071527 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-02 237 DATE: November 30, 2021 ORDER Service connection for sleep apnea due to environmental exposure, to include due to service-connected irritable bowel syndrome (IBS) with gastroesophageal disease (GERD) is denied. Service connection for fatigue due to environmental exposure is denied. An increased disability rating of 40 percent for the period on appeal prior to June 2, 2017, for the service-connected right shoulder rotator cuff disability is granted. An increased disability rating of 30 percent, but no higher, for service-connected right shoulder rotator cuff disability from August 23, 2017 is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's sleep apnea is due to environmental exposure in the Persian Gulf or has been caused or aggravated by service-connected IBS with GERD. 2. The preponderance of the evidence is against a finding that Veteran's fatigue is due to environmental exposure in the Persian Gulf. 3. For the period on appeal prior to June 2, 2017, the Veteran's right shoulder rotator cuff disability was manifested by an overall disability picture more nearly approximating limitation of motion of the right arm to 25 degrees from the side. 4. For the period on appeal from August 23, 2017, the Veteran's right shoulder rotator cuff disability is manifested by an overall disability picture more nearly approximating limitation of motion of the right arm to half way between the side and shoulder level, particularly when considering additional limitation of motion due to pain during flare-ups. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea due to environmental exposure, to include due to service-connected IBS with GERD have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. 2. The criteria for service connection for fatigue due to environmental exposure have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. Resolving all doubt in the Veteran's favor, the criteria for a disability rating of 40 percent for the period on appeal prior to June 2, 2017, for the service-connected right shoulder rotator cuff disability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1-4.3, 4.7,4.71a, Diagnostic Code (DC) 5003-5201. 4. Resolving all doubt in the Veteran's favor, the criteria for a disability rating of 30 percent from August 23, 2017, for the service-connected right shoulder rotator cuff disability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102,4.1-4.3, 4.7,4.71a, DC 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to June 1995, to include service in the Southwest Asia Theater of Operations. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely filed a notice of disagreement and substantive appeal. In an August 2019 decision, the Board granted an increased staged rating to 40 percent for the service-connected right shoulder disability, but only for the period from June 2, 2017 through August 22, 2017. The Board denied a disability rating in excess of 20 percent for the periods on appeal prior to June 2, 2017 and from August 23, 2017 onward. In addition, the Board denied service connection for obstructive sleep apnea and fatigue. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties requested the Court to vacate the Board's decision insofar as it denied a disability rating higher than 20 percent for the service-connected right shoulder disability for the period on appeal prior to June 2, 2017, and the period on appeal from August 23, 2017 onward; and, denied service connection for obstructive sleep apnea and fatigue. In a May 2020 Order, the Court granted the JMPR and the matters were remanded to the Board. In December 2020, the Board remanded the claims for further development consistent with the JMPR. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multisymptom illness that became manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(i)-(ii). The Veteran's personnel records confirm that he served in Southwest Asia. Recently, in Stewart v. Wilkie, 30 Vet. App. 383 (2018), the Court held that an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive and that a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). 1. Service connection for sleep apnea due to environmental exposure, to include due to service-connected IBS with GERD The Veteran contends that his diagnosed obstructive sleep apnea is due to his environmental exposure in Southwest Asia; or, in the alternative, due to his service-connected IBS with GERD. Service treatment records (STRs) show no complaints, diagnosis, or treatment related to sleep apnea. Sleep apnea is not shown by medical evidence until October 2017, many years after the Veteran's separation from service. Post-service, in June 2017 the VA examiner reported there was no evidence of record of GERD or sleep apnea during military service. During the examination, the Veteran reported he has never had a sleep study or been diagnosed with sleep apnea. The examiner opined he was unable to provide an opinion due to the fact that the Veteran had never been evaluated for sleep apnea. The Veteran presented for VA Gulf War examination in June 2017. The examiner reported there were no diagnosed illnesses for which no etiology was established. She reported the Veteran did not report any additional signs and/or symptoms. She reported there was no functional impact of additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. She reported the Veteran never had a sleep study or diagnosis of sleep apnea and all of the conditions for the examination are a disease with a clear and specific etiology and diagnosis. An August 2017 VA Gulf War examination reflects that there were no diagnosed illnesses for which no etiology was established. The examiner reported the Veteran did not report any additional signs and/or symptoms. She reported there was no functional impact of additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The Veteran presented for a VA Sleep Apnea examination in August 2017. The Veteran reported his wife tells him he snores loudly and stops breathing for brief periods on occasion. He reported his wife tells him his breath smells of bile. He stated occasionally he is awakened with a choking and strangling sensation. The examiner noted the Veteran experiences persistent daytime hypersomnolence, a symptom attributable to sleep apnea. She noted the Veteran underwent a sleep study in August 2017. In an August 2018 addendum opinion, the VA examiner reported that a sleep study was completed in October 2017 and the Veteran was diagnosed with obstructive sleep apnea. She opined the Veteran's sleep apnea is less than likely as not proximately due to or the result of difficulty breathing during active duty. In support of her opinion the examiner explained there is no evidence of record in the service treatment records of difficulty breathing based on evaluation for sleep apnea. She reported there was no evidence of complaints or diagnosis of sleep apnea in the service treatment records. The examiner explained sleep apnea is a condition with a clear and specific etiology, diagnosis and treatment. She explained sleep apnea is not the result of a specific exposure event in Southwest Asia. She reported sleep apnea occurs due to physical obstruction of the airway, not due to an environmental exposure. In October 2018 a different VA examiner provided a supplemental opinion. The examiner reviewed the claims file and opined the Veteran's sleep apnea is less likely than not related to his service-connected IBS with GERD. She reported sleep apnea is due to closure of the upper airway, during sleep, affecting effective breathing. She stated this is not related anatomically or pathologically to the Veteran's gastrointestinal condition. She stated the Veteran's sleep apnea is less likely than not aggravated beyond its normal progression by his service-connected IBS with GERD. The examiner reported there is no relationship between the Veteran's gastrointestinal condition and his respiratory condition. In other words, one disability does not make the other disability worse. In a December 2020 opinion, a VA clinician reported that a review of the claims file revealed that sleep apnea did not occur in service. The Veteran was diagnosed with sleep apnea in June 2017. This is the pathophysiology and etiology for sleep apnea. She reported that sleep apnea is a common condition in the United States. It can occur when the upper airway becomes blocked repeated during sleep, reducing or completely stopping airflow. This is known as obstructive sleep apnea. She reported that sleep apnea etiology is completely understood. She reported that sleep apnea is not a syndrome. The record is silent for sleep apnea in service. She reported that sleep apnea is not a Gulf War condition. There is no functional change with sleep apnea. If the person uses CPAP every night, they are getting oxygen with breathing and no airway obstruction. The risk factors for sleep apnea are morbid obesity, smoking, use of alcohol, and sedative. The clinician cited Mayo Clinic and the National Institute of Health in support of her rationale. In a February 2021 VA medical opinion, the clinician reported that a sleep study was conducted in June 2019. The clinician contacted the Veteran and he reported that he is very sleepy during the day after sleeping with a CPAP. She noted that this was the only symptom he reported. She reported that the Veteran informed her that his CPAP mask is loose. She explained that for a person to get sleep and no daytime sleepiness, the CPAP masks needs to have a seal with no leaks which can be resolved by seeing a CPAP medical provider to assess the leaking and give a new mask that fits. In a March 2021 VA medical opinion, the clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, she reported that the Veteran's obstructive sleep apnea is a disease with clear and specific etiology and diagnosis. It is less likely than not that the sleep apnea is related to the exposure event experienced in Southwest Asia. She reported that sleep apnea has clear etiology and pathophysiology. A Southwest Asia exposure does not cause sleep apnea as it is a physical obstruction of the airway and no evidence that any specific event or exposure during the Southwest Asia tour resulted in sleep apnea. She reported that sleep apnea is a physical obstruction in the airway that happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. The medical literature does not support that environmental exposure cause sleep apnea as they do not cause a physical obstruction in the airway. A nexus is not established. In an additional March 2021 VA medical opinion, the clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was diagnosed with sleep apnea greater than 20 years after separation from the service. It is less likely than not that the Veteran suffered with sleep apnea for 20 years without a workup or a diagnosis. She reported that the Veteran's report of "difficulty sleeping" is not specific to sleep apnea and can be seen with many sleep conditions. While the Veteran reported his sleep apnea incurred during active duty, difficulty sleeping does not indicate sleep apnea and a hiatus of no sleep issues for 20 years further supports that his sleep apnea did not incur during active duty. He reported that sleep apnea has a clear etiology and pathophysiology. As Southwest Asia exposure does not cause sleep apnea and it is a physical obstruction of the airway and no evidence that any specific event or exposure during the Southwest Asia tour resulted in sleep apnea. She reported that sleep apnea is a physical obstruction in the airway. Obstructive sleep apnea happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. Medical literature does not support that environmental exposure cause sleep apnea as it does not cause a physical obstruction in the airway. The clinician reported that obesity is one risk factor in the development of sleep apnea due to the excess body fat around the neck. The Veteran has obesity as a risk factor. She concluded that a nexus has not established. Upon review of the evidence of record, service connection for sleep apnea, to include as due to environmental exposure and secondary to IBS with GERD is not warranted. As noted above, the Veteran's sleep apnea has been attributed to a known clinical diagnosisobstructive sleep apnea. As such, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted. Specifically, in the March 2021 VA medical opinion, the clinician specifically reported that sleep apnea has a clear etiology and pathophysiology that was not related to environmental exposure in Southwest Asia. As the Veteran has a current diagnosis, the question remains as to whether there exists a nexus between his sleep apnea and his active military service. All of the VA medical opinions are in agreement that the Veteran's obstructive sleep apnea is not due to service, to include his service in Southwest Asia. The VA clinicians also all agree that his sleep apnea has a clear and specific etiology. Specifically, the March 2021 VA clinician attributed the Veteran's sleep apnea to his obesity. She specifically took into consideration the Veteran's statements of difficulty sleeping and explained in detail how that is not necessarily a symptom of sleep apnea and how sleep apnea occurs. Based on a review of the available records and medical literature, the VA clinician found that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As the clinician explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion, in consideration with all of the VA medical opinions, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, the October 2018 VA clinician explained that the Veteran's sleep apnea is not caused or aggravated by his service-connected IBS with GERD because there is no relationship between the Veteran's gastrointestinal disorder and his respiratory disorder. There is no medical opinion or competent and credible evidence of record that diminishes the probative value of these opinions. To the extent that the Veteran, including through his representative, has opined that his sleep apnea is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's contentions as to the etiology of his sleep apnea relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran's assertions as to causation are therefore not competent in this regard. To the extent that the Veteran's lay statements as to his observable symptoms of snoring and daytime fatigue, are credible, the examiner explained that these symptoms are not necessarily due to sleep apnea and can be caused by other disabilities. Moreover, the examiner opined that if the Veteran had sleep apnea in service, that a work up and diagnosis of sleep apnea could be expected closer in time to service discharge as opposed to the 20 year gap in this case. The reasoned opinions of the VA clinicians hold greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim of service connection for a sleep apnea. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Service connection for fatigue due to environmental exposure The Veteran contends his fatigue is related to environmental exposure during Persian Gulf service. The STRs do not reflect a diagnosis, treatment, or symptomatology related to his complaints of fatigue. The Veteran presented for VA Gulf War examination in June 2017. The examiner reported there were no diagnosed illnesses for which no etiology was established. She reported the Veteran did not report any additional signs and/or symptoms. She reported there was no functional impact of additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. She reported the Veteran never had a sleep study or diagnosis of sleep apnea and all of the conditions for the examination are a disease with a clear and specific etiology and diagnosis. During an August 2017 VA Gulf War examination there were no diagnosed illnesses for which no etiology was established. The examiner reported the Veteran did not report any additional signs and/or symptoms. She reported there was no functional impact of additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The Veteran presented for a VA Chronic Fatigue Syndrome examination in August 2017. He reported feeling tired during the day, whether or not he has had enough sleep. He reported drowsiness, which the examiner attributed to sleep apnea. The examiner reported the Veteran has never been diagnosed with chronic fatigue syndrome. The Veteran did not take continuous medication required for control of chronic fatigue syndrome. She reported the Veteran is on medication for depression. She reported the Veteran does not have any findings, signs, and symptoms attributable to chronic fatigue syndrome and there is no cognitive impairment attributable to chronic fatigue syndrome. The Veteran reports feeling exhausted by the sun and he is not involved in extracurricular activities other than fishing. He works full time with the state as a work force consultant. The examiner reported the Veteran's symptoms do not restrict his daily activities as compared to the pre-illness level and do not result in periods of incapacitation. March 2017 laboratory results showed mildly elevated fasting glucose but the Veteran did not have diabetes. The VA examiner reported there is currently no evidence to suggest or support a finding of chronic fatigue. She opined that the Veteran less likely as not has a diagnosis of chronic fatigue that is related to a specific exposure event in Southwest Asia. In support of her conclusion the examiner explained there is no evidence to suggest or support a diagnosis of chronic fatigue. She reported there are other diagnoses that may cause one to feel less energetic, such as depression and multiple joint conditions associated with degenerative joint disease/osteoarthritis. Upon review of the evidence of record, service connection for fatigue is not warranted. The Veteran's fatigue has been attributed as a symptom to his diagnosed sleep apnea and depression. He does not have a MUCMI or a qualifying chronic disability, as chronic fatigue symptom has not been diagnosed. As such, awarding service connection pursuant to 38 U.S.C. § 1117 is not warranted. Specifically, in the August 2017 VA medical opinion, the clinician specifically reported that the Veteran's drowsiness was due to his sleep apnea and his depression may cause him to be less energetic. Based on a review of the available records and medical literature, the VA clinician found that the Veteran did not have chronic fatigue syndrome that is related to a specific exposure event in Southwest Asia. She took into consideration the Veteran's complaints of fatigue and drowsiness as well as all of his known diagnoses and how his complaints attributed to them. As the clinician explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion, in consideration with all of the VA medical opinions, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. To the extent that the Veteran, including through his representative, has opined that his fatigue is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's contentions as to the etiology of his fatigue relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran's statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinions of the VA clinicians to be of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim of service connection for fatigue. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 38C.F.R. §4.71a; 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 criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual 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 Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38C.F.R. §4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. Any changes to the criteria that are applicable to the claims on appeal are indicated below. 3. Entitlement to an increased disability rating in excess of 20 percent for service-connected right shoulder rotator cuff prior to June 2, 2017 and from August 23, 2017 The Veteran contends that the symptoms of his right shoulder disability warrant an increased disability rating. The Veteran's right shoulder disability is currently rated as 20 percent disabling prior to June 2, 2017 and from August 23, 2017 and as 40 percent disabling from June 2, 2017 to August 23, 2017 under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Diagnostic Code 5201 provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a 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, 314-316 (2003). Recent amendments to Diagnostic Code 5201, effective February 7, 2021, clarify that limitation of motion of the arm to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation of motion to midway between side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76,453 (Nov. 30, 2020). See also, 38 C.F.R. § 4.71a, Diagnostic Code 5201 (effective February 7, 2021). As an initial matter, the Veteran is right-handed. Therefore, his right arm is the major extremity for VA rating purposes. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero to 180 degrees, abduction from zero to 180 degrees, and both internal and external rotation from zero 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). In addition, separate ratings may be assigned for ankylosis of scapulohumeral articulation (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5303). However, as the medical evidence of record is silent for ankylosis of the right shoulder; impairment of the right humerus, to include nonunion, malunion, or episodes of guarding; or impairment of the right clavicle or scapula, to include dislocation, nonunion, or malunion, these separate diagnostic codes are not for application. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran filed his claim for an increased rating for the service-connected right shoulder rotator cuff disability in March 2017, asserting that his right shoulder disability had worsened. The Veteran presented for VA examination on June 2, 2017. The examiner diagnosed right shoulder strain, labral tear, including superior labral anterior-posterior lesion (SLAP), and arthritis. He noted the history of the disability and that the Veteran underwent surgery in 2009 and reported increased pain and decreased range of motion. The Veteran reported flare-ups if lying on his shoulder or reaching over his head. He reported increased pain for one day, treated with ice, rest, and medication. He reported functional impairment affects his ability to play sports or to fish or perform house chores. He had difficulty with yard work, starting a lawn mower, holding items and gripping and picking up items weighing more than five pounds. Range of motion (ROM) testing revealed flexion to 55 degrees and abduction to 15 degrees, external rotation limited to 85 degrees and internal rotation limited to 90 degrees. However, the examiner found that the range of motion itself did not contribute to functional loss. Pain noted on exam caused functional loss, and the ranges of motion that exhibited pain were flexion, external rotation, and internal rotation. Muscle strength testing showed muscle strength of 2/5 in the right shoulder. There was no muscle atrophy. The examiner reported the Veteran was unable to perform repetitive use due to pain. He reported there were no clavicle or humerus conditions. He reviewed the 2017 X-ray results that showed degenerative changes of the right shoulder. The examiner reported there was right shoulder pain with weight bearing and nonweight-bearing and pain with active and passive motion. In the August 2019 decision, the Board determined that the June 2, 2017 examination findings warranted the assignment of a 40 percent disability rating for the period on appeal from June 2, 2017 through August 22, 2017. This finding was not disturbed by the Court. However, it is not clear why the 40 percent rating was not made effective back to the date of claim for a higher rating, which was received at the RO on March 21, 2017. A review of the claims file indicates that the Veteran filed an increased rating claim on March 21, 2017. Although the Veteran did not specifically indicate on his claim form that his disability had worsened, it is reasonable to infer that the disability had, in fact, worsened based on the fact that the Veteran filed an increased rating claim, and, given that the findings from the June 2, 2017 corroborate that assertion. In other words, the June 2, 2017 claim was filed, presumably, as a result of an increase in disability, which was subsequently corroborated by the findings at the June 2, 2017 examination. It is not the Veteran's fault that he had to wait over two months for his VA examination to corroborate the assertion that his right shoulder disability had worsened. Accordingly, with respect to an effective date for the increase, the latter of the date of claim and the date entitlement arose is the date of claim. See 38 C.F.R. § 3.400. Thus, the criteria for the assignment of a 40 percent rating from March 21, 2017 have been met, and a 40 percent rating for the right shoulder rotator cuff disability is warranted from March 21, 2017 through June 1, 2017. Regarding the period on appeal from August 23, 2017 onward, the totality of the evidence indicates that the overall disability picture more nearly approximates limitation of motion of the right arm to half way between the side and shoulder level. The Veteran presented for a VA examination in August 2017 and July 2018. Range of motion testing revealed flexion and abduction were limited to, at most, 90 degrees; external and internal rotation were limited to, at most, 50 and 40 degrees respectively. Muscle strength testing showed muscle strength was normal. The August 2017 examiner reported there was no additional functional loss or range of motion after repetition. He reported that there is tenderness on palpation of the acromioclavicular joint. He reported the Veteran's right shoulder disability is moderate to severely disabling. During the July 2018 examination the Veteran was unable to perform repetitive range of motion testing due to pain. The July 2018 examiner reported that the Veteran's right shoulder resulted in weakened movement due to "muscle or peripheral nerve injury, etc." The Veteran reported lifting the arm above chest level and applying pressure to the right arm causes increased pain and numbness and tingling making it difficult to complete tasks. A January 2021 VA examination report reflects that the Veteran reported that since the onset of his right shoulder condition his symptoms have worsened. He reported worsening pain and decrease in range of motion. His symptoms were constant right shoulder pain that he describes as a throbbing sensation. His dominant hand is his right hand. He reported flare-ups described as unbearable pain that required physical therapy. The flare-up was described as once, severe, and lasted six weeks. He reported functional loss/impairment described as difficulty reaching above his head. He reported that he cannot lift or carry anything heavier than 15 to 20 pounds. He reported that he could not wash his back and sometimes he cannot button his shirt. Initial range of motion testing revealed flexion to 75 degrees and abduction to 114 degrees. Range of motion itself contributed to a functional loss described as the inability to reach for things above his head. Pain was noted on flexion, abduction, external rotation, and internal rotation which caused functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as mild soreness on the anterior right shoulder. There was evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Pain and fatigue significantly limit functional ability with repeated use over a period of time described in terms of range of motion as flexion to 60 degrees and abduction to 90 degrees. Pain and fatigue significantly limit functional ability with flare ups described in terms of range of motion as flexion to 60 degrees and abduction to 90 degrees. There was no muscle atrophy and no ankylosis. There was no shoulder instability. There was no clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition suspected. He did not have loss of head, nonunion, or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. His right shoulder disability impacted his ability to perform any type of occupational tasks. He worked in administration and lost 0 to 1 week of work time in the last 12 months. His disability prevents him from pushing, pulling, and carrying heavy load. At a June 2021 VA examination, the findings were similar to the findings in January 2021. The Veteran reported increased pain and reduced range of motion with lifting his right arm and after repeated use. The examiner indicated that the Veteran had a reduced ability to load bear with the right arm. Abduction was limited to 65 degrees, and flexion was limited to 85 degrees. Passive range of motion studies yielded the same results. The Veteran was not able to perform repetitive range of motion testing because of fear of increased pain. The examination was not conducted during a flare-up. Upon review of the evidence of record, an increased disability rating of 30 percent for the Veteran's service-connected right shoulder disability is warranted for the period from August 23, 2017. With respect to the amended rating criteria, this revised criteria is more restrictive than the old criteria in effect prior to the February 7, 2021 rating amendment. Accordingly, the Veteran's right shoulder disability will be rated under the less restrictive pre-amended criteria under Diagnostic Code 5003-5201. The medical evidence of record reflects that the Veteran's right shoulder limitation of motion is at shoulder level or less, but not less than half way between the side and shoulder level. Specifically, the August 2017 VA examination reflects forward flexion to 90 degrees with abduction to 90 degrees and the July 2018 VA examination shows flexion to 100 degrees and abduction to 90 degrees. However, the August 2017 examiner noted that the Veteran's right shoulder disability was moderate to severe; and, the July 2018 examiner noted that the Veteran was unable to perform repetitive motion testing due to fear of increased pain. The January 2021 VA examination report revealed flexion to 75 degrees and the Veteran's flare-ups were estimated as flexion to 60 degrees and abduction to 90 degrees. There was pain with motion that limited functional ability; however, this was estimated as flexion to 60 degrees and abduction to 90 degrees. Nevertheless, pain and fatigue significantly limited functional ability with repeated use over time. At the June 2021 examination, the Veteran was again unable to perform repetitive use testing due to fear of increased pain. His abduction was limited to 65 degrees, and the examiner indicated that the Veteran had reduced limitation of motion with load bearing of the right arm. Notably, none of the examinations were conducted during a flare-up. There was no evidence of right shoulder ankylosis or guarding, nor was there any dislocation, malunion, or nonunion of the right clavicle, scapula, or humerus. For a rating in excess of 20 percent under Diagnostic Code 5003-5201 for right shoulder limitation of motion, a 30 percent rating is warranted when the evidence shows limitation of motion in flexion or abduction to midway between the side and shoulder level, which is essentially 45 degrees. Here, the medical evidence, to include the VA examination reports and post-service treatment records from August 23, 2017 onward, indicate that the Veteran's right arm flexion was limited in motion to 60 degrees and abduction was limited to no worse than 65 degrees. In either case, that is closer to half way between the side and shoulder level, than it is to shoulder level. Moreover, the Veteran consistently could not perform repetitive motions during examinations for fear of pain, and the limited motion noted on examinations did not include any additional motion loss due to pain during a flare-up. In light of the foregoing, and with resolution of all doubt in favor of the Veteran, the criteria for the assignment of a 30 percent disability rating for the right shoulder rotator cuff disability have been more nearly approximated for the period on appeal from August 23, 2017 under Diagnostic Code 5003-5201. As such, the assignment of a 30 percent rating during this time period is warranted. (Continued on the next page) Staged ratings are appropriate in this case because the factual findings show distinct periods where the service-connected disability exhibits symptoms that warrant a different rating prior to August 23, 2017. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this regard, however, the assignment of a rating in excess of 30 percent is not warranted from August 23, 2017, as the evidence from that time period onward does not show that the Veteran's overall disability picture is manifested by limitation of motion to, or more nearly approximating, 25 degrees or less from the side, even with consideration of the Veteran's self-reported frequency and severity of his flare-ups including any additional motion loss due to pain during flare-ups. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.