Citation Nr: 21005255 Decision Date: 02/01/21 Archive Date: 01/30/21 DOCKET NO. 16-34 992 DATE: February 1, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to August 5, 2019 and in excess of 30 percent thereafter for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to a 20 percent, but no higher, prior to December 8, 2015, for right rotator cuff tendonitis with resolved glenohumeral joint dislocation is granted. Entitlement to a rating in excess of 20 percent beginning December 8, 2015 for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation is denied. FINDINGS OF FACT 1. For the appeal period prior to August 5, 2019, the Veteran’s COPD manifested in a forced expiratory volume in one second (FEV-1) of, at worst, 87 percent predicted and a ratio of FEV-1 to forced vital capacity (FEV-1/FVC) of 106 percent without FEV-1 of 56 to 70 percent of predicted, FEV-1/FVC of 56 to 70 percent of predicted, daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. 2. For the appeal period beginning on August 5, 2019, the Veteran’s COPD manifested in FEV-1 of, at worst, 77 percent predicted and FEV-1/FVC of 110 percent without FEV-1 of 40 to 55 percent of predicted, FEV-1/FVC of 40 to 55 of predicted, at least monthly visits to a physician for required care of exacerbations or intermittent (at least three per year) courses of systemic corticosteroids. 3. For the appeal period prior to December 8, 2015, the Veteran’s right rotator cuff tendonitis with resolved glenohumeral joint dislocation manifested in a functional loss due to painful motion. 4. For the appeal period beginning on December 8, 2015, the Veteran’s right rotator cuff tendonitis with resolved glenohumeral joint dislocation was not productive of limitation of the right arm at midway between side and shoulder level at any time. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to August 5, 2019 and in excess of 30 percent thereafter for COPD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.—4.14, 4.97, Diagnostic Code 6602. 2. The criteria for a 20 percent rating for the appeal period prior to December 8, 2015 for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.—4.14, 4.71a, Diagnostic Code 5201. 3. The criteria for a rating in excess of 20 percent for the appeal period beginning December 8, 2015 for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.—4.14, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1979 to September 1981. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Muskogee, Oklahoma. In October 2018, the Board issued a decision denying entitlement to an increased rating for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation and remanded the claim of entitlement to an increased rating for COPD. The Veteran appealed the denial of entitlement to an increased rating for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. Accordingly, in a February 2020 Board decision, the claim for entitlement to an increased rating for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Both claims have now been returned to the Board for appellate action. The February 2020 Board remand instructed that updated VA treatment records be obtained and that a VA examination be conducted to determine the current nature and severity of the Veteran’s right rotator cuff tendonitis with resolved glenohumeral joint dislocation. Updated VA treatment records are located in the claims file and a VA examination was conducted in July 2020. The Board therefore finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. COPD The Veteran asserts that he should have a higher rating for his COPD as his disability is worse than contemplated by the currently assigned rating. Specifically, the Veteran asserts that the VA examinations of record were inadequate to determine the current nature and severity of his COPD because the testing machines were broken at the time of his examinations, and that he uses an inhaler on a daily basis. See VA Form 9, July 20, 2016; see also Correspondence, July 22, 2016; see also VA Form 21-4138 Statement in Support of Claim, July 22, 2016; see also Lay Statement, June 13, 2016; see also Notice of Disagreement, February 27, 2016. The Veteran’s COPD is evaluated pursuant to Diagnostic Code 6602. 38 C.F.R. § 4.97, Diagnostic Code 6602. FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy warrants a 10 percent rating. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication warrants a 30 percent rating. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids warrants a 60 percent rating. FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications warrants a 100 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6602. Post-bronchodilator studies are required when pulmonary function testing (PFT) are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, rates are to use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). At a February 2016 VA examination, the Veteran reported that his condition had worsened, that it was more difficult to care for himself and walk and that he would get short of breath. The Veteran’s COPD did not require the use of oral or parenteral corticosteroid medications, required intermittent inhalational bronchodilator therapy and did not require the use of oral bronchodilators or antibiotics. The Veteran did not require outpatient oxygen therapy. He had four or more asthma attacks with episodes of respiratory failure in the past 12 months. He did not have any physician visits for required care of exacerbations. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. Diagnostic imaging studies found no abnormalities. PFT results were conducted, and reflected the Veteran’s current pulmonary function. Post-bronchodilator PFT results were as follows: FVC of 83 percent predicted; FEV-1 of 87 percent predicted; and FEV-1/FVC of 106 percent. The examiner noted the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. The examiner noted that the Veteran’s COPD impacted his ability to work because it was possible that any occupational task may be infrequently and mildly delayed secondary to dyspnea; however, this would not be a contraindication not to perform such tasks in most occupations. At an August 2019 VA examination, the Veteran reported that he experienced daily cough attacks, especially in the morning, sometimes wheezing, shortness of breath and chronic phlegm. The Veteran’s COPD required the use of oral or parenteral corticosteroid medications that were intermittent courses or bursts of systemic corticosteroids and he had not had any courses or bursts in the past 12 months. He required the use of intermittent inhalational bronchodilator therapy, and daily inhalational anti-inflammatory medication. The Veteran’s COPD did not require the use of oral bronchodilators, antibiotics, nor outpatient oxygen therapy. He did not have any asthma attacks with episodes of respiratory failure in the past 12 months. He did not have any physical visits for required care of exacerbations. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. Diagnostic imaging studies were within normal limits. PFT results were conducted, and reflected the Veteran’s current pulmonary function. Post-bronchodilator PFT results were as follows: FVC of 77 percent predicted; FEV-1 of 85 percent predicted; and FEV-1/FVC of 110 percent. The examiner noted the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. The examiner noted the Veteran’s COPD impacted his ability to work, and noted the Veteran could function in sedentary and physical work environments as long as it did not involve too much heavy lifting over 50 pounds or running excessively (longer than one mile), which may bring on shortness of breath and coughing. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his COPD is worse than noted at the VA examinations of record. For the appeal period prior to August 5, 2019, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for COPD. In this regard, the Veteran was shown to have FVC of 83 percent predicted, FEV-1 of 87 percent predicted; and FEV-1/FVC of 106 percent at his February 2016 VA examination. A higher rating is not warranted for this appeal period as FEV-1 of 56 to 70 percent of predicted, FEV-1/FVC of 56 to 70 percent of predicted, daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication was not shown or alleged by the Veteran. Accordingly, a 10 percent rating for COPD for the appeal period prior to August 5, 2019 is not warranted. For the appeal period beginning on August 5, 2019, the Board finds that a rating in excess of 30 percent for COPD is not warranted. The August 2019 PFT results found that FVC was 77 percent predicted, FEV-1 was 85 percent predicted and FEV-1/FVC was 110 percent. A higher rating is not warranted as the record does not establish, and the Veteran has not alleged, FEV-1 of 40 to 55 of predicted, FEV-1/FVC of 40 to 55 of predicted, at least monthly visits to a physician for required care of exacerbations or intermittent (at least three per year) courses of systemic corticosteroids. Although the February 2019 VA examination noted that the Veteran’s COPD condition required intermittent courses or bursts of systemic corticosteroids, there were no required courses or bursts within the past 12 months. Accordingly, a 30 percent rating for COPD for the appeal period beginning on August 5, 2019 is not warranted. Finally, the Board acknowledges the Veteran’s statements that his COPD is more severe than evaluated because he believes the testing machines were broken at the time of his examination, and because he uses his inhaler on a daily basis. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for higher ratings than those assigned have been met. Specifically, the Board notes that there is no indication the testing machines were broken or inoperable at the time of his VA examinations. Rather, the examiners found that the testing results were appropriate and accurately reflected the severity of his COPD. Additionally, the Board notes the VA examiners noted the Veteran’s use of inhalers and other treatments for his COPD upon examination. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his COPD. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. This argument is therefore without merit. Moreover, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected COPD; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating for such disability is not warranted. The Veteran and his representative has not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative allege that he is unable to secure and maintain substantially gainful employment. The Veteran reported that he owned his own business in an April 2018 VA treatment note. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e. that the Veteran was employed, a TDIU claim was not raised.) As such, a Rice claim is not raised. In light of the above, the Board finds the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to August 5, 2019 and a rating in excess of 30 percent thereafter for the Veteran’s COPD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Right Rotator Cuff Tendonitis The Veteran asserts that he should have higher ratings for his right rotator cuff tendonitis with resolved glenohumeral joint dislocation as his disability is worse than contemplated by the currently assigned ratings. Specifically, the Veteran asserts that the VA examinations of record were inadequate to determine the current nature and severity of his right shoulder disorder because the February 2016 VA examination did not comply with the requirements under Mitchell, Sharp, and Correia; and that he experienced frequent dislocations that should be granted a separate rating under Diagnostic Code 5202. See Third Party Correspondence, October 30, 2019. Additionally, the Veteran asserts that his February 2020 VA examination was inadequate because not all issues were addressed regarding his right shoulder. See VA Form 21-4138 Statement in Support of Claim, August 18, 2020. By way of history, the Veteran was granted entitlement to service connection for right shoulder problems” in an April 1982 rating decision, and assigned an initial noncompensable rating, effective September 9, 1981. Then, the Veteran filed the instant claim for entitlement to service connection for a right shoulder condition in December 2015. See VA Form 21-526EZ, Fully Developed Claim, December 1, 2015. The RO granted entitlement to service connection for rotator cuff tendonitis, right shoulder, with resolved glenohumeral joint dislocation (previously rated as residuals, right shoulder injury), and assigned a 20 percent rating, effective December 8, 2015. The Veteran disagreed with the rating assigned. The Board notes that the RO recharacterized the service-connected right shoulder injury as the instant claim for a right shoulder disorder; and as such, the current rating in question is a non-initial rating of the Veteran’s right shoulder disorder, requiring a “look back” period that extends the period on appeal to December 8, 2014. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). During the period on appeal, the Veteran’s right shoulder disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 and include ratings based on limitation of motion. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant; his right shoulder is his major shoulder for rating purposes. See e.g. February 2016 VA examination report; see also June 2020 VA examination report. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation, a 20 percent rating is warranted for favorable ankylosis with abduction to 60 degrees, a 30 percent rating is warranted for ankylosis which is intermediate between favorable and unfavorable, and a 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. Under Diagnostic Code 5201, major shoulder limitation of motion of the arm to shoulder level warrants a 20 percent rating. Limitation of motion of the arm to midway between side and shoulder level warrants a 30 percent rating. Limitation of motion of the arm to 25 degrees or less from the side warrants a schedular maximum 40 percent rating. See 38 C.F.R. § 4.71a, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. However, the plain language of 38 C.F.R. § 4.71a confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion of the shoulder joint. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Diagnostic Code 5201 does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm. The plain meaning, therefore, is that any “limitation of motion of” a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm’s motion is limited. Yonek, 772 F.3d at 1359. Additionally, under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees. Diagnostic Code 5202 provides ratings for other impairment of the humerus. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at shoulder level are rated as 20 percent for the major 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. Fibrous union of the humerus is rated as 50 percent for the major shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder. Under Diagnostic Code 5203 for impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement. When there is nonunion with loose movement, a 20 percent rating is assigned. A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula. Regarding the Veteran’s right shoulder disorder, disabilities 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 determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected parts. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §§ 4.40 and 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In his February 2016 Notice of Disagreement, the Veteran reported that his right shoulder disorder prevented him from sleeping on the right side, and that he aggravated the tendon tear approximately six or eight years prior. At a February 2016 VA examination, the Veteran reported that his condition had remained the same. He endorsed flare-ups of the right shoulder that was described as cannot sleep on the right side. He reported that he tore two ligaments when throwing a volleyball, approximately four years prior. The Veteran reported functional loss or functional impairment of the right shoulder that was described as limited lifting and no over shoulder use, and no sleeping on his right side. Upon physical examination, range of motion measurements were as follows: flexion as to 90 degrees; abduction was to 90 degrees; and external and internal rotation were to 60 degrees each. Range of motion itself was noted to contribute to a functional loss due to mildly increased time required to complete certain occupational tasks such as lifting and carrying due to pain. Pain was noted on flexion, abduction, external rotation, and internal rotation; and noted to cause a functional loss. There was diffuse tenderness to mild palpation of the entire joint, non-anatomic in nature. There was no 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 and there was not additional loss of function or range of motion after three repetitions. The February 2016 VA examiner noted that the Veteran was not examined immediately after repetitive-use over time and the examination was neither medically consistent or inconsistent with his statements describing a functional loss with repetitive-use over time. Pain was noted to significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare-up and the examination was neither medically consistent or inconsistent with his statements describing a functional loss during a flare-up. The examiner was not able to describe in terms of range of motion after repetitive-use or during a flare-up. In this regard, the examiner noted additional loss of range of motion could not be provided because the Veteran did not indicate that flare-ups were always of the same intensity, suggesting that flare-ups range from mild to severe magnitude with a corresponding difference in additional of range of motion. The examiner noted that theoretically, a very mild flare-up may not reduce range of motion at all, while an extremely severe flare-up may prevent any movement whatsoever. The Veteran also did not indicate that repetitive-use was always of the same duration. The examiner noted that theoretically, repetitive-use over a few minutes may result in a smaller loss of range of motion, however repetitive-use over a half hour or hour would result in a greater loss of range of motion. Moreover, the examiner noted that the Veteran did not indicate a specific numerical loss of range of motion either during flare-ups or repetitive use. The February 2016 VA examiner found that additional factors contributing to the disability included less movement than normal. Muscle strength testing was normal. There was no reduction in muscle strength. The Veteran did not have muscle atrophy. There was no ankylosis shown. Rotator cuff condition was suspected, and the Veteran had positive Hawkins’ impingement test and Empty-Can test. There was no history of mechanical symptoms. There was a history of recurrent dislocation that was characterized as infrequent episodes. Crank apprehension and relocation test, external rotation or infraspinatus strength test, and lift-off subscapularis test were negative. The Veteran did not have a clavicle, scapula, acromioclavicular joint condition suspected; did not have loss of head, nonunion, or fibrous union of the humerus; and did not have malunion of the humerus with moderate or marked deformity. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging testing did not document degenerative or traumatic arthritis. The examiner noted the Veteran’s right shoulder disorder impacted his ability to work due to mildly increased time required to complete certain occupational tasks, such as, right sided lifting and carrying secondary to pain; however it was not a contraindication for him not to perform these tasks in most occupations. The examiner remarked it was an unremarkable examination regarding any current issues with the Veteran’s alleged right shoulder dislocation. In a June 2016 statement, the Veteran reported that he had not been able to sleep on his right side for over 35 years. In a March 2020 statement, the Veteran reported that his right shoulder was in constant pain; falls asleep when lifted above shoulder height throughout the day; he could not sleep on the right side due to severe pain; and that his shoulder felt as though it was under constant pressure. See VA Form 21-4138 Statement in Support of Claim, March 4, 2020. At a June 2020 VA examination, the Veteran reported current symptoms included some hand tingling with holding his hand or arm in certain positions, pain in a band going anterior and posterior over the superior aspect of the shoulder, pain with terminal external rotation, increased pain with overhead activities, refraining from weight-lifting and activities, such as pull-ups, due to pain, constant ache, tingling along the first three digits and numbness of the whole hand when driving. The Veteran denied flare-ups. He reported functional loss or functional impairment of the right shoulder described as worsening when driving, and difficulty or inability to do things overhead. Upon physical examination, range of motion measurements were as follows: flexion was to 140 degrees; abduction was to 120 degrees; and external rotation and internal rotation were to 80 degrees each. Range of motion itself contributed to a functional loss due to difficulty performing overhead activity. Pain was noted on flexion, abduction, external rotation, and international rotation, and caused a functional loss. There was objective evidence of localized tenderness or pain on the anterior and superior shoulder that was moderate and attributable to his tendonitis. 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; and there was not additional loss of function or range of motion after three repetitions. The June 2020 VA examiner noted that the Veteran was not examined immediately after repetitive-use over time and the examination was neither medically consistent or inconsistent with his statements describing a functional loss with repetitive-use over time. Pain, fatigue, and weakness were noted to significantly limit functional ability with repeated use over a period of time. The examiner was able to describe in terms of range of motion after repetitive-use as follows: flexion was to 140 degrees; abduction was to 120 degrees; and external rotation and internal rotation were to 80 degrees each. The Veteran was not examined during a flare-up and the examination was neither medically consistent or inconsistent with his statements describing a functional loss during a flare-up. There were no factors noted to significantly limit functional ability with repeated use over a period of time. The examiner was able to describe in terms of range of motion during a flare-up as follows: flexion was to 140 degrees; abduction was to 120 degrees; and external rotation and internal rotation were to 80 degrees each. The June 2020 VA examiner noted that additional factors contributing to contributing to the disability included less movement than normal, weakened movement, interference with lifting and overhead activities, limited range of motion and pain with lifting, especially overhead. Muscle strength testing showed active movement against some resistance in forward flexion and abduction. There was a reduction in muscle strength. The Veteran did not have muscle atrophy. There was no ankylosis shown. Rotator cuff condition was suspected, and the Veteran had positive Hawkins’ impingement test and Empty-Can test. External rotation or infraspinatus strength test was negative, and lift-off subscapularis test could not be performed. A shoulder instability, dislocation or labral pathology was not suspected. The Veteran did not have a clavicle, scapula, acromioclavicular joint condition suspected, did not have loss of head, nonunion, or fibrous union of the humerus and did not have malunion of the humerus with moderate or marked deformity. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging testing did not document degenerative or traumatic arthritis. The examiner noted the Veteran’s right shoulder disorder impacted his ability to work due to limited activities of heavy, repetitive, or overhead lifting with the right shoulder. There was no objective evidence of pain with nonweight-bearing. Passive range of motion was the same as active range of motion. The examiner noted that there were no flare-ups reported and that pain, weakness, and fatigability were identified with repeated-use over time. The examiner further noted that all records were reviewed; and that the Veteran was limited in activities of heavy, repetitive, or overhead lifting with the right shoulder. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his right shoulder disorder is worse than noted at the VA examinations of record. In light of the above, the Board finds that the Veteran is entitled to a 20 percent rating prior to December 8, 2015 for his right rotator cuff tendonitis with resolved glenohumeral joint dislocation. In this regard, the Veteran has consistently reported pain in his right shoulder. Specifically, in a June 2016 lay statement, the Veteran reported he had not been able to sleep on his right side for over 35 years due to pain; and the Veteran has consistently been shown to have pain during movement of his right shoulder. Under 38 C.F.R. § 4.59, functional loss due to painful motion is to be rated to at least the minimum compensable rating for a particular joint. Since the Veteran demonstrated painful motion of the shoulder, and there was objective evidence of such pain, a 20 percent rating is warranted for his ght rotator cuff tendonitis with resolved glenohumeral joint dislocation prior to December 8, 2015. In light of the above, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent at any time during the period on appeal for a right rotator cuff tendonitis with resolved glenohumeral joint dislocation. In this regard, the Veteran had not demonstrated limitation of the right arm at midway between side and shoulder level at any time. Moreover, the Veteran has not been shown to have recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements. Specifically, at his February 2016 VA examination, the Veteran had a history of recurrent dislocations that were infrequent; and at his June 2020 VA examination, the Veteran did not have dislocations of the shoulder. Additionally, the Board finds that the rating currently assigned considers the pain on movement that the Veteran experiences in his right shoulder that affects his functional ability, to include any increased functional impairment during flare-ups or following repeated use over time. The Board has considered a higher rating for the Veteran’s right shoulder disorder during this period. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). To that end, the Board finds that Diagnostic Codes 5200, 5202 and 5203 are inapplicable to the claims. There is no evidence of ankylosis of the Veteran’s right shoulder as required under Diagnostic Code 5200. Indeed, VA examinations during the period on appeal note no history or objective evidence of ankylosis. There is no evidence of record of recurrent dislocation with guarding of all arm movements, fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus as required under Diagnostic Code 5202. There is also no evidence of the clavicle or scapula impairment and a higher or separate rating under Diagnostic Code 5203 is not warranted. Thus, the Board finds that higher ratings are not warranted for the Veteran’s right shoulder disorder under any other applicable Diagnostic Codes. Moreover, the Board acknowledges that the Veteran experiences right shoulder pain and loss of motion; however, these symptoms are already contemplated under Diagnostic Code 5201, and a separate rating under Diagnostic Code 5003 for degenerative arthritis with painful limitation of motion would violate the rule against pyramiding. See 38 C.F.R. § 4.14. While the Veteran has essentially stated that he has reduced motion in his right shoulder, he has not described a range of motion less than those found on examinations. In this regard, he reported that he experienced chronic daily pain, with difficulty with overhead activities, driving, and sleeping on his right side. The Veteran’s statements do not show the requisite limitation of motion necessary for higher ratings than those assigned. Treatment records do not show greater limitations of motion than the above examination findings. Given the above, even when considering the right shoulder’s impact on physical activities, higher ratings are not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. The Board notes that in August 2019, the Court vacated the Board’s previous determination that the Veteran was not entitled to a rating in excess of 20 percent for his right shoulder disorder. In that regard, the Court found the Board failed to discuss the February 2016 VA examiner’s finding that severe flare-ups of the right shoulder may prevent “any arm movement whatsoever” and whether that reduction in movement may warrant a higher rating. Additionally, the Court found that if the Board was unable to rely on that statement, it must address whether the February 2016 VA examination complied with the Court’s decisions in Correia and Sharp. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the February 2016 VA examination in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA examiner tested the opposite joint. The February 2016 VA examiner indicated there was no interference with weight-bearing due to pain and pain was noted on examination. Regarding repeated use over time, the Board notes that VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Board acknowledges that the VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups, however, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiner noted additional loss of range of motion could not be provided because the Veteran did not indicate that flare-ups were always of the same intensity, suggesting that flare-ups range from mild to severe magnitude with a corresponding difference in additional of range of motion. The examiner noted that theoretically, a very mild flare-up may not reduce range of motion at all, while an extremely severe flare-up may prevent any movement whatsoever. The Veteran also did not indicate that repetitive-use was always of the same duration. The examiner noted that theoretically, repetitive-use over a few minutes may result in a smaller loss of range of motion, however repetitive-use over a half hour or hour would result in a greater loss of range of motion. Moreover, the examiner noted that the Veteran did not indicate a specific numerical loss of range of motion either during flare-ups or repetitive use. However, the examiner was able to elicit information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. Specifically, the Veteran indicated during flare-ups he could not sleep on his right side; and that he could not lift or use his shoulder overhead. Therefore, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiner clearly noted that the Veteran specifically reported pain, difficulty with activities overhead, and an inability to sleep on his right side during flare-ups. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. Although the February 2016 VA examiner indicated that severe flare-ups could prevent any arm movement “whatsoever,” in theory (emphasis added), the Veteran has not endorsed such symptoms and was able to specify the functional loss and limitations of his right shoulder during flare-ups and following repetitive use. Moreover, there is no evidence in the record to indicate that the Veteran had arm movement that was prevented “whatsoever” at any time, to include during a flare-up or following repetitive use. Accordingly, the Board finds the February 2016 examination of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Board has also considered the effects of repeated use over time and flare-ups along with the adequacy of the June 2020 VA examination in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the VA examiner tested the opposite joint. The June 2020 VA examiner indicated there was interference with weight-bearing due to pain and pain was noted on examination. Regarding repeated use over time, the Board notes that VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Board acknowledges that the VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups, however, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. Moreover, the June 2020 VA examiner was able to describe range of motion after repetitive-use and during flare-ups and found that there was no additional loss of range of motion. Moreover, the examiner found that passive range of motion was the same as active range of motion; there was no objective evidence of pain with nonweight-bearing; the Veteran denied flare-ups; and found pain, weakness, and fatigability were identified with repeated-use over time. Therefore, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiner clearly noted that the Veteran specifically reported pain, limited activities of heavy, repetitive, or overhead lifting with the right shoulder, and some limited range of motion. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the June 2020 examination of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. While all of the VA examinations conducted during the appeal period do not reflect all findings as directed by Correia and Sharp, the Board finds no prejudice to the Veteran in proceeding with the adjudication of his claim for an increased rating for his right shoulder disorder at this time. The Veteran either denied or did not report flare-ups of pain during his VA examinations. Moreover, the June 2020 VA examination measured active and passive range of motion as well as weight bearing and non-weight bearing range of motion. Therefore, the Board finds that the examination report of record and the medical evidence, is adequate to adjudicate the Veteran’s claim for an increased rating for his right shoulder disorder and no further examination is necessary. Finally, the Board acknowledges the Veteran’s statement that his right shoulder disorder is more severe than evaluated because he experiences frequent dislocations of his shoulder. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for higher ratings than those assigned have been met. Specifically, the Board again notes that the Veteran has been shown to have, at worst, infrequent dislocations of his right shoulder. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for the right shoulder. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. This argument is therefore without merit. Moreover, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected right rotator cuff tendonitis with resolved glenohumeral joint dislocation; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating for such disability is not warranted. The Veteran and his representative has not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, supra. Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, supra. Neither the Veteran nor his representative allege that he is unable to secure and maintain substantially gainful employment. The Veteran reported that he owned his own business in an April 2018 VA treatment note. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, supra. As such, a Rice claim is not raised. (Continued on the next page)   In light of the above, the Board finds that a 20 percent rating, but no higher, for the appeal period to December 8, 2015 for the Veteran’s right rotator cuff tendonitis with resolved glenohumeral joint dislocation is warranted. The preponderance of the evidence is against a rating in excess of 20 percent thereafter for the Veteran’s right rotator cuff tendonitis with resolved glenohumeral joint dislocation. To that extent, the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate 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.