Citation Nr: 21075942 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-32 167 DATE: December 21, 2021 ORDER An initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, is denied. An initial evaluation in excess of 20 percent for left (minor) shoulder degenerative joint disease with rotator cuff strain, adhesive capsulitis, and impingement syndrome (left shoulder dislocation) is denied. A separate rating of 20 percent for left shoulder limitation of motion is granted. REMANDED Entitlement to a separate disability rating for a sleep disorder, including insomnia/sleep disturbance, claimed as associated with service-connected diabetes mellitus, type II, is remanded. Entitlement to special monthly compensation (SMC) based on a single service-connected disability rated as total and other service-connected disabilities that combine to a 60 percent evaluation, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the Veteran's service-connected diabetes mellitus, type II, did not require daily insulin or regulation of activities. 2. The Veteran is rated at the maximum schedular evaluation for left shoulder (minor) recurrent dislocation with guarding of movement; and, during the appeal period, loss of humeral head, fibrous union, and nonunion of the shoulder is not shown. 3. The Veteran's left shoulder exhibited limited range of motion at shoulder level (flexion and/or abduction limited to 90 degrees), but exhibited no evidence of ankylosis or limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 25 degrees). CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. The criteria for a rating in excess of 20 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202. 3. The criteria for a separate rating 20 percent for left shoulder disability based on limitation of motion are met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5201, 5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1964 to September 1969, including service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In a June 2020 decision, the Board denied entitlement to (1) a disability evaluation in excess of 20 percent for the service-connected left shoulder disability, and (2) a disability evaluation in excess of 20 percent for the service-connected diabetes mellitus disability. The Veteran appealed the denial of these issues to the United States Court of Appeals for Veterans' Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR) to vacate and remanded the matters back to the Board for readjudication. Further, the JMR instructed that the Board address entitlement to SMC under 38U.S.C. §1114(s) based on a single service-connected disability rated as total and other service-connected disabilities that combine to a 60 percent evaluation. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). In June 2020, the Board remanded the appeal for additional evidentiary development. The Board finds that there has been substantial compliance with the June 2020 Board remand directives as to the adjudicated matters below. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that medical records show various sleep problems. Given this, the Board has recharacterized the claim for insomnia/sleep disturbance more broadly as sleep disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). See also, Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (generally, the scope of a disability claim includes any disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other evidence of record). Lastly, the Board notes that the Veteran has been in receipt of total disability based on individual unemployability (TDIU) effective February 5, 2010. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The 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 (2020). 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 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2020). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2020). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II. A May 2004 rating decision granted service connection for diabetes mellitus, type II, at 20 percent from June 23, 2003. In March 2011, VA received a claim for an increased disability rating. A June 2012 rating decision denied that claim. This appeal arises from the Veteran's disagreement with that decision. The Veteran contends that a higher rating is warranted because his disability effects nerves/muscles of his hands ("I have loss of feelings in my hands."). See NOD (July 2012). The Board notes that the Veteran is separately service connected for peripheral neuropathy (a nerve disorder) of the upper extremities and the rating of that disability is not before the Board. See Rating Decision-Codesheet (April 2020). The Veteran later contended that a higher rating is warranted because "I am having trouble maintaining my blood." He did not report any regulation of activities. But rather, he noted he had high blood pressure, which he believed is associated with his diabetes. See Form 9 (September 2015). The Board notes that the Veteran is separately service connected for hypertension (high blood pressure) and the rating of that disability is not before the Board. See Rating Decision-Codesheet (April 2020). Yet, later, the Veteran argued that his condition had not improved but was simply managed. See Correspondence (February 2016). A May 2019 Appellate Brief from the Veteran's representative argues that the disability should be rated higher because it had worsened and impacted employment. See Appellate Brief (May 2019). An October 2021 Appellate Brief set out no specific factual or legal arguments for the Board's consideration. See Appellate Brief (October 2021). The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's service-connected diabetes mellitus, type II; he did not require daily insulin or regulation of activities. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the more persuasive evidence of record reflects that Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal, and that the disability did not require one or more daily injection of insulin, restricted diet, and regulation of activities. VA examination reports dated in August 2011, August 2013, July 2015, December 2019, and August 2021 reflect that the Veteran's diabetes mellitus, type II, did not require his regulation of activities. Indeed, the August 2011 and August 2013 VA examination reports reflects a diagnosis of diabetes mellitus, type II, treated with oral hypoglycemic agent and that it did not require regulation of activities or any other medications. The July 2015 VA examination report, similarly, reflects a diagnosis of diabetes mellitus, type II, that was managed by restricted diet, oral hypoglycemia agent, and additional medications (glyburide and metformin). See C&P Exam (July 2015). The report expressly shows that the Veteran's diabetes did not require regulation of activities; and that visits to a diabetic care provider for episodes of hypoglycemia fewer than two times per month were noted. The December 2019 VA examination report reflects that the Veteran's diabetes was managed by restricted diet and oral hypoglycemia agent. See C&P Exam (December 2019). The examiner found that the Veteran's diabetes did not require regulation of activities. Fatigue and flushing of the skin/body were said to impact the Veteran's ability to work. The report again noted visits to a diabetic care provider for episodes of hypoglycemia fewer than two times per month. Most recently, an August 2021 VA examination again shows that the Veteran's diabetes is managed by restricted diet, and does not require regulation of activities; visits to a diabetic care provider for episodes of hypoglycemia or ketoacidosis fewer than two times per month were indicated; no functional impact was found. The examination report was based on in-person examination of the Veteran along with review of the Veteran's claims file. Thus, the medical evidence does not indicate insulin and/or regulation of activities. The Veteran's VA treatment records during the appeal period similarly do not reflect that the Veteran requires regulation of activities for treatment or management of his service-connected diabetes mellitus, type II. Rather, these records show that the Veteran was encouraged to exercise. See CAPRI (December 2019) and (May 2020). For instance, a November 2011 VA treatment note reflects that the Veteran was counselled on the benefits of exercise and the health risks of his obesity. At this time, the Veteran reported that he regularly exercise by walking. His VA treatment records show that the Veteran's problem list included obesity, chronic obstructive lung disease, and heart disorders, among other things. Although he had had limitations on his ability to perform activities, to include exercise, and exercise intolerance due to medical problems other than diabetes mellitus, these records do not show that his activities were limited by any medical provider due to his service-connected diabetes mellitus, type II. A November 2017 note reflects that the Veteran was encouraged to begin/maintain an exercise program (unless contraindicated) with self-identified goal of 5-10 minutes at moderate level, 2-3 times per week. It was noted that the Veteran identified as part of his exercise program: Walking and yard work. He was advised to start slowly at 5 minutes a day and gradually work up to exercise 20-30 minutes at moderate level, 3-4 times per week. Given he was a diabetic, he was advised not to exercise if his blood sugar was greater than 250 or less than 100. The Board does not find that this is indicative of regulation of activities as contemplated by the VA rating schedule because this does not evidence that it is medically necessary for the Veteran to avoid strenuous activities as a form of treatment for his diabetic condition, in addition to the use of one or more daily injections of insulin and restricted diet. See Middleton v. Shinseki, 727 F.3d 1172 (2013) (holding that a veteran must demonstrate all of the required elements to be entitled to a higher 40 percent evaluation under Diagnostic Code 7913 for type II diabetes mellitus). See also, Camacho v. Nicholson, 21 Vet. App. 360 (2007) ("regulation of activities" must be "medically necessary."). On balance, the weight of the evidence is against the claim. The criteria for a higher rating are not met at any time during the appeal period. Accordingly, the claim is denied. There is no reasonable doubt to resolve in this matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a rating in excess of 20 percent for service-connected left shoulder disability. The Veteran contends that prolonged use of his left shoulder causes severe pain, including when reaching or lifting his left arm. See NOD (July 2012); Form 9 (October 2015). Via his representative, the Veteran has also asserted that his left shoulder progressively worsens and impacts his employability. See Appellate Brief (May 2019). The Board concludes that the evidence is against the claim as it more nearly approximates the criteria for an evaluation of 20 percent based on recurrent dislocation with guarding of movement of the left (minor) arm. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5202. However, the Board also finds that a separate rating of 20 percent under Diagnostic Code 5201 is warranted for left arm limitation at the shoulder level. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code DC 5201. The Veteran is service-connected for left (minor) shoulder degenerative joint disease with rotator cuff strain, adhesive capsulitis, and impingement syndrome at 20 percent under Diagnostic Code 5202. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology, and evidenced by visible behavior of the claimant undertaking the motion. Under DeLuca v. Brown, the Board must give consideration as to whether, in addition to limitation of motion, upon repetitive use, there is increased disability or functional loss due to any weakness in the affected extremity. 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. Limited movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, and interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, in evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton, supra. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco, supra. Disabilities of the shoulder may be rated under DCs 5200-5203 and residuals of shoulder arthroplasty may be rated under DC 5051. 38 C.F.R. § 4.71a, DCs 5051, 5200-5203. In the Veteran's case, his minor shoulder for rating purposes is his left shoulder. 38 C.F.R. § 4.69. However, VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a. Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Board will consider the claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, under Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the minor arm at shoulder level. A 20 percent rating is also warranted for limitation of motion of the minor arm midway between side and shoulder level. To warrant a 30 percent rating, the evidence must demonstrate limitation of motion of the minor arm to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5200, a 20 percent rating is warranted where there is favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, can reach mouth and head. A 30 percent rating is warranted for instances of intermediate ankylosis between favorable and unfavorable. A 40 percent rating is warranted for unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Diagnostic Code 5202 provides for a 20 percent rating for malunion of the humerus (minor arm) with either moderate or marked deformity. Recurrent dislocation of the humerus at the scapulohumeral joint warrants s 20 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; a 20 percent rating is also assigned for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Other impairments of the humerus warrant a 40 percent rating for fibrous union; a 50 percent rating is warranted for nonunion (false flail joint); and a 70 percent rating is warranted for loss of head (flail shoulder). 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides that impairment of the clavicle or scapula is to be rated as dislocation, nonunion, or malunion, or rate on impairment of function of the contiguous joint. Diagnostic Code 5203 does not provide for a rating in excess of the current 20 percent disability rating. 38 C.F.R. § 4.71a. The revised schedule, in effect as of February 7, 2021, contemplating limitation of motion of the arm (minor extremity) under Diagnostic Code 5201, provides that a 20 percent rating is warranted for limitation of the minor arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent rating is also warranted for limitation of motion of the minor arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 30 percent rating is warranted for flexion and/or abduction of the minor arm limited to 25 degrees from side. Diagnostic Code 5202 was unchanged, save for clarifying that "shoulder level" means flexion and/or abduction limited to 90 degrees (recurrent dislocation at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level), required for the assignment of a 20 percent rating. No revisions were made to Diagnostic Codes 5200 and 5203. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran's service-connected left shoulder disability. Instead, the revisions clarify that "shoulder level" means 90 degrees and "midway between the side and shoulder level" means 45 degrees, information which was previously available and garnered from 38 C.F.R. § 4.71a , Plate I. As such, the Board finds there is no prejudice to the Veteran in the Board's consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). During the lengthy appeal period, the Veteran has been afforded five VA examinations to evaluate his left shoulder disability: in September 2010, August 2011, July 2015, December 2019 and August 2021. The September 2010 VA examination shows a diagnosis of left shoulder rotator cuff strain, adhesive capsulitis, and chronic impingement syndrome. See VA Examination (September 2010). The Veteran was noted to be right hand dominant. The Veteran reported burning, stabbing pain across the left glenohumeral joint, described as 6 on a scale of 1 to 10; stiffness; locking; weakness; instability or giving way; occasional heat and redness; and flareups of pain with any lifting, stretching, elevating the arm, rolling over in bed, or excessive movements. The Veteran described flare-ups as causing radiation from the left shoulder down into the left forearm causing sharp pain described as a 10 on a scale of 1 to 10 and occurring five to six times per day lasting from a few minutes to a few days. The examination showed deformity of the left deltoid muscle, supraspinatus muscle, infraspinatus muscle; tenderness over the glenohumeral joint, supraspinatus, infraspinatus, and subscapularis; weakness noted in all ranges of motion; increased fatigability with motion; instability; abnormal movements with increased scapular movement initiating at 10 degrees of abduction; and guarding with movements or stress. Range of motion findings were indicated as follows: forward flexion from 0 to 65 degrees, with painful motion at 35 to 65 degrees, and from 35 to 60 degrees with painful motion after repetitive testing; abduction from 0 to 45 degrees, with painful motion from40 to 45 degrees, and from 35 to 40 degrees with painful motion after repetitive testing; external rotation from 0 to 20 degrees, with painful motion at 0 to 15 degrees with repetition; and internal rotation from 0 to 30 degrees, with painful motion, and from 0 to 25 degrees with painful motion after repetitive testing. The report indicated that the Veteran was guarding his left shoulder and had episodes of recurrent dislocation two to three times per year. At the August 2011 VA examination, the Veteran was diagnosed with left rotator cuff syndrome with impingement syndrome and adhesive capsulitis. See VA Examination (August 2011). The Veteran reported flare-ups with lifting, stretching, rolling over in bed or too much movement, alleviated by rest. The Veteran also reported pain when climbing and getting in and out of his truck. Range of motion findings were measured as follows: flexion with pain and repetition from 0 to 100 degrees; and abduction with pain and repetition from 0 to 90 degrees. No additional limitation in range of motion or functional loss was noted with repetitive use testing. The report further noted functional impairment as less movement than normal and excess fatigability, tenderness on palpation of the acromioclavicular (AC) joint, pain on movement, and localized tenderness or pain on palpation, but no recurrent dislocation, ankylosis, guarding, loss of muscle strength, or history of mechanical symptoms. X-ray results were noted to document arthritis, degenerative joint disease (DJD), and deformity of the glenoid fossa. At the July 2015 VA examination, the Veteran reported constant pain, including flare-ups, made worse with any physical activity, including exercise, described as an 8 to 10 on a scale of 1 to 10. See C&P Exam (July 2015). Objectively, there was no evidence of crepitus or of pain with weight bearing, and range of motion findings for the left shoulder were as follows: flexion from 0 to 105 degrees and abduction from 0 to 90 degrees; external rotation from 0 to 70 degrees; and internal rotation from 0 to 90 degrees. No additional functional loss or range of motion was noted after three repetitions. In addition, pain was noted on exam to cause functional loss, to include decreased range of motion for flexion, abduction, and external rotation. There was no dislocation; muscle atrophy; instability; labral pathology; impairment of the humerus; ankylosis; or any clavicle, scapula, AC joint or sternoclavicular joint conditions. In December 2019, the Veteran underwent a fourth VA examination, where he reported that his daily left shoulder pain continued to worsen; he reported left arm weakness and occasionally holding his left shoulder on his chest to help ease the pain. See C&P Exam (December 2019). The Veteran denied flare-ups, but reported avoiding increased or repetitive movement due to pain, to include lifting, carrying, pushing, or pulling. There was evidence of crepitus and pain with weight-bearing as well as objective evidence of pain on passive range of motion testing and when the joint was used in non-weight-bearing. There was no additional loss of function or range of motion after three repetitions. Range of motion findings were as follows: flexion from 0 to 95 degrees; abduction from 0 to 95 degrees; external rotation from 0 to 50 degrees; and internal rotation from 0 to 55 degrees. Abnormal range of motion was noted to itself contribute to functional loss, and pain was also noted on examination and to cause functional loss with flexion, abduction, external rotation, and internal rotation. Pain, weakness, fatigability, and incoordination were found not to significantly limit functional ability with repeated use over a period of time, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted. There was no evidence of ankylosis, shoulder instability, dislocation, loss of head, or malunion of. Most recently, the Veteran underwent a VA examination in August 2021, where he again reported that his left shoulder pain was becoming progressively worse with increased pain when reaching, lifting, and pulling objects; he reported constant pain requiring joint injections about every three months that relieve symptoms for one to two weeks. See C&P Exam (August 2021). The Veteran reported no flare-ups and described functional loss as having to take frequent rest periods when doing yard work such a mowing and picking up debris from the yard; and, when doing housework such a washing dishes or cooking, needing to take frequent rest periods. Range of motion findings for both active and passive were as follows: flexion from 0 to 100 degrees; abduction from 0 to 90 degrees; and external and internal rotation from 0 to 60 degrees. Flexion, abduction and bilateral rotation exhibited pain on active and passive range of motion testing, but did not cause functional loss. There was no additional loss in range of motion after repetitive-use testing with at least three repetitions. There was also no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. There was no muscle atrophy and no ankylosis. Additional contributing factors included disturbance of locomotion, less movement than normal, increased pain with movement and limited ability to lift arms above head. Tests were negative for instability, dislocation, scapula and impairment of the humerus. Aside from the Veteran's reported symptoms listed above, he also indicated that the functional impact of his left shoulder disability included his inability to do any work that required prolonged movement of his left arm and shoulder. Applying the facts in this case to the criteria set forth above, the Board finds that the assignment of a 20 percent rating for left shoulder dislocation with guarding of movement is not warranted under Diagnostic Code 5202. Specifically, multiple examinations have shown that the Veteran's service-connected left shoulder dislocation with guarding of movement does not involve recurrent dislocation of the scapulohumeral joint or malunion with moderate or marked deformity, or fibrous union, or nonunion (false flail joint), or loss of head (flail shoulder). Significantly, the only VA examination showing reports of recurrent dislocation two to three times per year dates to September 2010, and the four subsequent VA examinations from August 2011 to August 2021 explicitly show no recurrent dislocation. The Board has also considered the July 2015 examiner's opinion on the Veteran's functional limitations with repeated use and during flare-ups. The examiner referred to the Veteran's description of both as constant pain made worse with exercise and physical activity with pain at 8 out of 10 depending on activity. However, even the most severe limitation of motion during flare-ups does not more nearly approximate ankylosis of the scapulohumeral articulation in which the scapula and humerus move as one piece, or humerus impairment. The evidence simply does not reasonably raise the issue of humerus impairment with flail joint or fibrous humerus union to warrant consideration of a rating in excess of 20 percent for the left shoulder under DC 5202. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Thus, a rating in excess of 20 percent under Diagnostic code 5202 is not warranted. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code. The Board finds that a separate rating of 20 percent under Diagnostic Code 5201 is warranted. In this case, the Veteran has exhibited abduction limited to 90 degrees at worst, and flexion limited to 95 degrees at worst during the course of the appeal. Based on these findings, the Board finds that a rating of 20 percent for left arm limitation at the shoulder level is warranted under DC 5201. In this regard, the Board notes that the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate diagnostic code). The Board has considered whether a higher rating may be assigned under DC 5201 based on functional impairment, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca, supra. However, despite the Veteran's reported pain, the Board is unable to find a basis upon which to find that the Veteran's left shoulder disability produces functional loss as contemplated by § 4.40, 4.45, 4.59, which more nearly approximates an inability of left arm movement to 25 degrees or less from his side. For example, the September 2010 VA examination report shows that the Veteran reported flareups of pain with any lifting, stretching, elevating the arm, rolling over in bed, or excessive movements. Upon evaluation, there was no further decrease in range of motion to warrant a higher rating. Furthermore, the August 2011 and July 2015 VA examination reports indicated additional contributing factors of disability to include interference with lifting and carrying; however, the Veteran performed repetitive use testing without functional loss or additional limitation of motion. At the latest VA examination in August 2021, flexion, abduction and bilateral rotation, while exhibiting pain on active and passive range of motion testing, did not cause functional loss. No additional loss in range of motion after repetitive-use testing with at least three repetitions, or evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time was noted. Neither the lay nor the medical evidence reflects the functional equivalent of limitation of motion of the left arm to 25 degrees from the side, or any other functional impairment that would warrant a higher rating for a left shoulder disability under Diagnostic Code 5201. Rather, the evidence of record reflects that the Veteran's left shoulder disability was manifested by symptoms that more nearly approximate the level of disability contemplated by the 20 percent rating assigned under Diagnostic Code 5201. In reaching this conclusion, the Board has examined all other diagnostic code provisions pertinent to the left arm for the possible assignment of a greater disability rating. The Board, however, finds a higher or separate disability rating is not warranted under any other potentially appliable Diagnostic Code. Specifically, the September 2010, August 2011, July 2015, December 2019 and August 2021 VA examiners found no evidence of ankylosis of the scapulohumeral articulation, nor impairment of the clavicle or scapula. Thus, the assignment of a rating under Diagnostic Codes 5200 and 5203 is not warranted. See 38 C.F.R. § 4.71a; Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). In light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that a rating of 20 percent, but no higher, for the Veteran's left shoulder limitation of motion is warranted under DC 5201. However, a higher rating is not warranted under Diagnostic code 5202 for recurrent dislocation. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 3. Entitlement to a separate rating for a sleep disorder is remanded. The Veteran, via his representative, has argued that the record reflects, in June 2007, a physician's assessment of him having a "history of chronic sleep disturbance, mostly mild insomnia, worsening past years. Probably contributory factor multifactorial with GMC as above indicated," and subsequently noting "=DM with neuropathy." See CAVC Decision (April 2021); Medical Treatment Record - Government Facility (October 2007). The Board finds that there has not been substantial compliance with the June 2020 Board remand directives. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board requested a VA examination opinion on "whether it is at least as likely as not that the Veteran's diagnosed insomnia/sleep disturbance is either caused by or aggravated beyond its natural progression (e.g. worsened) by the Veteran's service-connected diabetes." See BVA Decision (June 2020). The August 2021 VA examination, however, is inadequate for the following reasons. First, the August 2021 VA medical opinion provided no distinction between the rationales provided as to causation and aggravation and, hence, it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). As the Board previously requested in its June 2020 remand, a clear opinion should be obtained upon remand addressing both, causation and aggravation. See id (citing El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013)). Second, the examination report shows that there is not a currently diagnosed insomnia or sleep condition and the opinion similarly notes that there is no current diagnosis shown. However, this is incongruous with the report of examination finding that "symptoms of low energy, tiredness, are expected to impact his attendance and reliability at work. He may need to take naps throughout the day, which could affect productivity." See C&P Exam (August 2021). It is noted that these limitations may constitutes a "disability" for VA compensation purposes if it is productive of functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a "disability" under 38 U.S.C. § 1110 because pain can cause functional impairment). Accordingly, remand is required for a new VA examination and a clarifying opinion. 4. Entitlement to SMC is remanded. Because a decision on the remanded issues of entitlement to service connection for a sleep disorder affect the issue of entitlement to SMC, these issues are inextricably intertwined. A remand of the claim for entitlement to SMC is, thus, required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from July 2021 to the present. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to address whether any sleep disorder is at least as likely as not proximately due to or aggravated by service-connected diabetes mellitus, type II. The examiner(s) must (a.) indicate whether the Veteran has a current diagnosis for any sleep disorder. All appropriate testing should be completed. If the examiner does not provide a diagnosis, s/he should indicate whether the Veteran experiences functional impairment due to his sleep related symptoms. (b.) If the Veteran has sleep-related symptoms productive of functional impairment, then the examiner should then opine on whether it is at least as likely as not that any sleep disorder (disability) is either (1) proximately due to service-connected diabetes, or (2) aggravated beyond its natural progression by service-connected diabetes. The clinician must provide a rationale that deals with causation and aggravation as independent concepts. Identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (2): If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the examiner then the examiner must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why.). 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.