Citation Nr: 21009895 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-27 004 DATE: February 23, 2021 ORDER A rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. A rating in excess of 10 percent for lumbar degenerative arthritis is denied. A rating in excess of 10 percent for cervical spine disability is denied. A rating in excess of 20 percent for a right shoulder disability (excluding periods of temporary total rating) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s GERD has been manifested by symptoms of esophageal spasms, reflux, painful bloating, excessive gas and heartburn, and persistently recurrent epigastric distress. It has not been manifested by dysphagia, pyrosis, regurgitation, material weight loss and hematemesis or melena with moderate anemia or any other symptoms productive of considerable or severe impairment of health. 2. For the entire period on appeal, the Veteran’s lumbar spine disability has been manifested by forward flexion to 90 degrees, at worst, without evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. For the entire period on appeal, excluding periods during which temporary total ratings were in effect, the Veteran’s cervical spine disability has manifested in forward flexion limited to 45 degrees. 4. For the entire period on appeal, excluding the period during which a temporary total rating was in effect, the Veteran’s right shoulder range of motion has not more nearly approximated being midway between the side and shoulder level, flexion and/or abduction limited to 45 degrees, even when considering pain and functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for GERD, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 2. The criteria for a rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating in excess of 10 percent for cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5003, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to March 2009. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded these matters for further evidentiary development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. Those provisions, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4. 40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evaluation, however, of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). GERD The Veteran’s GERD has been assigned a 10 percent rating under DC 7399-7346. The use of “99” in a rating decision is reflective of a disability not listed in VA’s rating schedule, in which the unlisted disability is rated by analogy. 38 C.F.R. § 4.27. Thus, in this case, GERD is evaluated under the diagnosis code for hiatal hernia, DC 7346. See 38 C.F.R. § 4.114, DC 7346. Under DC 7346, a 10 percent rating is assigned where there are two or more of the symptoms of a 30 percent evaluation with less severity. A 30 percent rating is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A June 2014 VA esophageal conditions examination revealed the Veteran’s treatment plan did not include taking continuous medication for his GERD. He did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The Veteran’s esophageal condition did not impact on his ability to work. Diagnostic imaging studies revealed fundoplication changes and minimal gastroesophageal reflux, without ulcers, strictures, or other associated sequelae. Pursuant to the March 2020 Board remand, the Veteran underwent VA examination in March 2020. The Veteran reported continued esophageal spasms. His treatment plan did not include taking continuous medication for his diagnosed condition. Signs and symptoms of the Veteran’s GERD included persistently recurrent epigastric distress and reflux. The Veteran had an asymptomatic esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The Veteran additionally reported painful bloating, excessive gas and heartburn. The Veteran’s esophageal condition did not impact his ability to work. At the conclusion of the examination, the examiner remarked, “For the VA established diagnosis of esophageal spasms residual of Nissen fundoplication, there is no change in the diagnosis.” In reviewing all probative evidence of record for this period, the Board finds that a rating in excess of 10 percent is not warranted. The medical evidence of record has not shown that the Veteran has symptoms of pyrosis and regurgitation (in addition to the Veteran’s symptoms of persistently recurrent epigastric distress and reflux), productive of considerable impairment of health. Thus, for the period on appeal, a rating in excess of 10 percent is not warranted for the Veteran’s service-connected GERD. Lumbar Spine The Veteran’s lumbar spine degenerative arthritis is rated under Diagnostic Code 5242. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. The regulations for rating lumbar spine disabilities under Diagnostic Code 5242 have not changed. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gain or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Formula. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. A June 2014 VA lumbar spine examination revealed a diagnosis of degenerative arthritis of the spine. The Veteran did not report flare-ups. On examination, the Veteran demonstrated flexion to 90 degrees or greater, extension to 30 degrees or greater, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. He did not have muscle spasm or guarding. Muscle strength testing was normal. He did not have muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising testing was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or intervertebral disc syndrome (IVDS). The Veteran did not report the use of any assistive devices. The examiner indicated that due to the Veteran’s lumbar spine condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran’s lumbar spine condition did not impact his ability to work. The examiner additionally remarked that the Veteran ambulated with a normal gait and performed heel to toe, toe and heel walk without difficulty. Physical/neurological examination of the back revealed no swelling/spasm, no Le weakness and no tenderness. There was also no noted radiculopathy. There was no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted. There was also no loss of function with repetitive use, except as noted. The examiner concluded the examination by stating, An opinion regarding if, when and to what extent, in degrees, further “repetitive use” or reported “flare-ups” could significantly limit functional ability, is not one with literature support. Based on the clinical presentation, examination findings and the Veteran’s reports, I cannot opine (determine) without resorting to mere speculation, a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurs during examination. Pursuant to the March 2020 Board remand, the Veteran underwent VA examination in March 2020. The Veteran reported flare-ups that varied and were moderate, lasting hours to days. They were precipitated by driving, bending, and other physical activities. His flare-ups were alleviated by heat, ice, and rest. He did report having any functional loss or functional impairment. On examination, the Veteran demonstrated flexion to 90 degrees or greater, extension to 30 degrees or greater, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater. Pain was noted on examination but did not result in or cause functional loss. Forward flexion and extension exhibited pain. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was not being conducted during a flare-up and was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. He did not have muscle spasm or guarding. Muscle strength testing was normal. He did not have muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising testing was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or intervertebral disc syndrome (IVDS). The Veteran did not report the use of any assistive devices. The examiner indicated that due to the Veteran’s lumbar spine condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran’s lumbar spine condition did not impact his ability to work. There was no evidence of pain on passive range of motion testing of the back. There was also no evidence of pain on non-weight bearing testing of the back. The evidence of record clearly reflects that the Veteran had essentially full range of motion of the lumbar spine, as noted in the June 2014 and March 2020 VA examination reports. Further, there is no lay or medical evidence of spasms or guarding resulting in abnormal spinal contour, or ankylosis of any kind of either the lumbar or entire spine. There is no lay or medical evidence of record showing the Veteran’s flexion was limited to 60 degrees or less. Therefore, an increased rating of 20 percent during the period on appeal is not possible. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. Both examiners, however, specifically stated that there was no further loss of motion or limitation of function after repetitive testing due to factors such as pain. There is no evidence of additional functional loss due to pain or other factors which would warrant the assignment of an increased rating in this case. Additionally, the Veteran’s complaints of pain on motion are fully contemplated by his current ratings. 38 C.F.R. § 4.59. No additional higher or alternative ratings under different Diagnostic Codes can be applied at any point during the period on appeal. Both VA examiners noted that the Veteran did not have IVDS, and the VA treatment records do not contain a diagnosis of IVDS or any evidence of incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Therefore, an increased rating based on IVDS and incapacitating episodes is not warranted. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, both the June 2014 and March 2020 examiners stated that there was no evidence of radiculopathy associated with the low back disability, and treatment records from the period on appeal contain no diagnoses of radiculopathy or abnormal neurologic evaluations. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The preponderance of the evidence is against a rating in excess of 10 percent during the period on appeal for lumbar degenerative arthritis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Cervical Spine The Veteran’s cervical spine disability is rated under Diagnostic Code 5242. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. However, the regulations for rating cervical spine disabilities under Diagnostic Code 5242 have not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. During a June 2014 VA cervical spine examination, the Veteran reported increased pain and discomfort to the posterior neck after working at his computer for an extended period. He also stated that he experienced neck pain and tightness when turning the neck to the extreme right or left. He did not report flare-ups. On examination, the Veteran demonstrated flexion to 45 degrees or greater, extension to 45 degrees or greater, right and left lateral flexion to 45 degrees or greater, and right and left lateral rotation to 80 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in range of motion of the cervical spine following repetitive-use testing. He did not have any functional loss and/or functional impairment. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the cervical spine. He did not have muscle spasm or guarding. Muscle strength testing was normal. He did not have muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising testing was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. The Veteran did not have any other neurologic abnormalities related to a cervical spine condition (such as bowel or bladder problems due to cervical myelopathy). He did not have IVDS. The Veteran did not report the use of any assistive devices. The examiner indicated that due to the Veteran’s cervical spine condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran’s cervical spine condition did not impact his ability to work. The examiner additionally remarked that physical examination of the neck was unremarkable. There was no spasm or related swelling, no tenderness and no noted radiculopathy. There was no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted. There was also no loss of function with repetitive use, except as noted. The examiner concluded the examination by stating, An opinion regarding if, when and to what extent, in degrees, further “repetitive use” or reported “flare-ups” could significantly limit functional ability, is not one with literature support. Based on the clinical presentation, examination findings and the Veteran’s reports, I cannot opine (determine) without resorting to mere speculation, a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurs during examination. An August 2014 private treatment record reflects the Veteran’s complain of chronic neck pain. The Veteran stated that his pain had always been daily and constant; however, it recently got worse. He reported pain with motion and sleeping. Upon careful review, the Board finds that an increased rating is not warranted for the entire period on appeal, excluding periods during which temporary total ratings were in effect. A higher evaluation of 20 percent is not warranted for a cervical spine disability when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine is not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Even considering the Veteran’s reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements does not nearly approximate the range of motion necessary for higher ratings. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In addition, there was no ankylosis or IVDS requiring bed rest. Right Shoulder The Veteran’s right shoulder disability is assigned a 20 percent rating under the hyphenated DC 5003-5201. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under criteria that became effective February 7, 2021, for the major arm, DC 5201 provides a 20 percent rating for limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is warranted for limitation of motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent rating is warranted for limitation of motion limited to 25 degrees from the side. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). A March 2020 VA examination report reflects that the Veteran’s right hand is his dominant hand. Thus, the Veteran’s right arm is his major arm. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. DC 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.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The plain meaning of DC 5201, 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. During a June 2014 VA examination, the Veteran reported occasional pain to the right shoulder when lifting heavy objects. He did not report flare-ups. On examination, the Veteran’s right shoulder demonstrated flexion to 180 degrees and abduction to 180 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in range of motion of the shoulder and arm following repetitive-use testing. He did not have any functional loss and/or functional impairment. He did not have localized tenderness or pain on palpation of joints/soft tissue/biceps tendon of the right shoulder. He did not have guarding. Muscle strength testing was normal. He did not have ankylosis. All specific tests for rotator cuff conditions were negative. History and specific tests for instability/dislocation/labral pathology were negative. History and specific tests for clavicle, scapula, acromioclavicular (AC) joint, and sternoclavicular joint conditions were negative. The examiner indicated that due to the Veteran’s right shoulder condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran’s right shoulder condition did not impact his ability to work. The examiner additionally remarked that physical examination of the right shoulder was unremarkable. There was no swelling, no tenderness, no weakness and no instability. There was also no noted radiculopathy or related neurological abnormalities. There was no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted. There was also no loss of function with repetitive use, except as noted. The examiner concluded the examination by stating, An opinion regarding if, when and to what extent, in degrees, further “repetitive use” or reported “flare-ups” could significantly limit functional ability, is not one with literature support. Based on the clinical presentation, examination findings and the Veteran’s reports, I cannot opine (determine) without resorting to mere speculation, a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurs during examination. During a February 2020 VA examination, the Veteran did not report flare-ups. He reported having functional loss or functional impairment in that repeated, overhead activities were challenging. On examination, the Veteran’s right shoulder demonstrated flexion to 180 degrees and abduction to 180 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination, but it did not result in or cause functional loss. Pain was exhibited upon flexion and abduction. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional loss of function after three repetitions. The Veteran was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There were no additional contributing factors of disability in addition to those addressed. Muscle strength testing was normal. There was no reduction in muscle strength. The Veteran did not have muscle atrophy. He did not have ankylosis. A rotator cuff condition was not suspected. Shoulder instability, dislocation or labral pathology was not suspected. The Veteran did not have loss of head, nonunion, or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. He did not report the use of any assistive devices. The Veteran’s right shoulder condition did not impact his ability to work. There was objective evidence of pain on passive range of motion testing of the right shoulder. There was no evidence of pain on non-weight bearing testing of the right shoulder. Pursuant to the March 2020 Board remand, the Veteran underwent VA examination in March 2020. He reported flare-ups of the right shoulder occurring three to four-4 times per week. His flare-ups were moderate and lasted hours to days. They were precipitated by computer work and physical activity and alleviated by ice and heat. The Veteran reported having functional loss or functional impairment in that he could not raise his right arm fully above his shoulder. On examination, the Veteran’s right shoulder demonstrated flexion to 120 degrees and abduction to 100 degrees. Range of motion itself contributed to a functional loss in that the Veteran could not raise his arm fully above his shoulder or head. Pain was noted on examination that caused functional loss. Pain was exhibited upon flexion, abduction and external rotation. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the lateral shoulder and the severity was mild. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional loss of function after three repetitions. The Veteran was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was not being conducted during a flare up. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. There were no additional contributing factors of disability in addition to those addressed. Muscle strength testing was normal. There was no reduction in muscle strength. The Veteran did not have muscle atrophy. He did not have ankylosis. A rotator cuff condition was suspected as Hawkins’ impingement testing was positive and the remaining tests were negative. Shoulder instability, dislocation or labral pathology was not suspected. A clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition was not suspected. The Veteran did not have loss of head, nonunion, or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. He did not report the use of any assistive devices. The Veteran’s right shoulder condition did not impact his ability to work. There was objective evidence of pain on passive range of motion testing of the right shoulder. There was no evidence of pain on non-weight bearing testing of the right shoulder. In conclusion, the examiner noted x-ray findings, revealing, “postsurgical identified with the bone tunnel in the lateral aspect of the right humeral head” and an “otherwise normal study.” Under the former criteria set forth in Diagnostic Code 5201, for the major arm, limitation of motion at the shoulder level, warranted a 20 percent rating. A 30 percent rating required limitation of motion to midway between the side and shoulder level, while a 40 percent rating required limitation of motion limited to 25 degrees from the side. VA revised Diagnostic Code 5201, effective February 7, 2021. 82 F.R. 35719. Under the revised criteria, VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). As such, the Board will proceed with the adjudication of this issue. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provides that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. Upon review of the record, the Board finds that a preponderance of the evidence is against a finding that a 30 percent rating is warranted for the Veteran’s right shoulder disability under both the former and revised criteria set forth in Diagnostic Code 5201 as the Veteran’s range of motion has not more nearly approximated being midway between the side and shoulder level, flexion and/or abduction limited to 45 degrees, even when considering pain and functional loss. The Board acknowledges the lay statements which state that the Veteran could not raise his right arm fully above his shoulder. See March 2020 VA Examination Report. The Board, however, assigns greater probative weight to the objective findings measured on examination as they were obtained using a goniometer, which provides precise clinical measurements, and are therefore more reliable than the rough estimates provided by lay testimony. The prior February 2020 VA examination also noted that functional loss involved difficulty in performing repeated, overhead activities. The Board has considered the application of other Diagnostic Codes for shoulder disability. Consideration of DCs 5200, 5202, and 5203 is inappropriate in this case as the Veteran’s shoulder disability does not include the pathology required in the criteria for those DCs (ankylosis of scapulohumeral articulation, humerus impairment, and impairment of the clavicle or scapula). 38 C.F.R. § 4.71a. Accordingly, a preponderance of the evidence is against the Veteran’s claims seeking increased ratings for the right shoulder disability. As such, the benefit-of-the-doubt doctrine does not apply, and a disability rating in excess of 20 percent for the right shoulder disability is denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.