Citation Nr: 21014949 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-13 365 DATE: March 16, 2021 ORDER From February 1, 2010, a higher initial rating of 20 percent for degenerative joint disease and chondromalacia patella of the right knee (right knee disability) is granted. From February 1, 2010, a separate initial disability rating of 10 percent for slight lateral instability of the right knee is granted. From February 1, 2010 to March 25, 2013, a higher initial disability rating of 10 percent, but no higher, for degenerative joint disease, C5-6, cervical spine (cervical spine disability) is granted. From March 26, 2013, a disability rating in excess of 20 percent for a cervical spine disability is denied. From February 1, 2010 to March 25, 2013, a higher initial rating of 20 percent for degenerative joint disease of the glenohumeral joint of the left shoulder (left shoulder disability) is granted. From February 1, 2010, onward, an initial rating in excess of 20 percent for a left shoulder disability is denied. FINDINGS OF FACT 1. From February 1, 2010, the symptomatology and functional impairment of the service-connected right knee disability most nearly approximated dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion; slight lateral instability; and did not more nearly approximate ankylosis, flexion limited to 15 degrees, extension limited to 20 degrees, impairment of the tibia and fibula, or flexion limited to 30 degrees with extension limited to 15 degrees. 2. From February 1, 2010 to March 25, 2013, when considering the impact of flare-ups, the symptomatology and functional impairment of the cervical spine disability resulted in forward flexion of the cervical spine of greater than 30 degrees but not greater than 40 degrees and a total combined range of motion of the cervical spine of greater than 170 degrees but not greater than 335 degrees. 3. Since March 26, 2013, the symptomatology and functional impairment of the cervical spine disability resulted in forward flexion of the cervical spine of no less than 20 degrees without ankylosis of the cervical spine. 4. From February 1, 2010, the symptomatology and functional impairment of the left shoulder disability was manifested by limitation of motion at the shoulder level; it was not manifested by limitation of motion to 25 degrees from side, by an impairment of the clavicle or scapula, by an impairment of the humerus, or by ankylosis of the scapulohumeral articulation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, a higher initial rating of 20 percent disabling, but no higher, for the right knee arthritis disability is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5258. 2. Resolving reasonable doubt in the Veteran’s favor, a separate initial rating of 10 percent disabling, but no higher, for slight lateral instability is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. Resolving reasonable doubt in the Veteran’s favor, for the period from February 1, 2010 to March 25, 2013, the criteria for a higher initial disability rating of 10 percent, but no higher, for a cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a higher initial rating in excess of 20 percent from March 26, 2013 for a cervical spine 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 5242. 5. Resolving reasonable doubt in the Veteran’s favor, for the period from February 1, 2010 to March 25, 2013 an initial rating of 20 percent disabling, but no higher, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 6. The criteria for an initial rating in excess of 20 percent from February 1, 2010 for a 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 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from January 1989 to November 1996, from December 1998 to September 2002, from November 2002 to July 2003, and from February 2007 to January 2010. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The matter has been before the Board of Veterans’ Appeals (Board) previously. In April 2018, the Board denied higher initial ratings for the service-connected right knee disability, cervical spine disability, and left shoulder disability. The Veteran appealed the April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 Order of the Court granting a February 2019 Joint Motion for Remand (JMR), the parties agreed to vacate the April 2018 Board decision and remand the matters for compliance with the terms of the JMR. The JMR required VA examinations that were compliant with Correia v. McDonald, 28 Vet. App. 158, 165 (2016) (testing in weightbearing) and Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (estimating additional functional limitations during a flareup). The JMR required the association of specific records with the claims file. The JMR required additional reasons and bases related to whether the knee instability should be rated separately under Diagnostic Code 5257. There have been a few Board remands in order to ensure compliance with the terms of the JMR. In December 2020, the Board remanded related to the missing records. The requisite development has occurred and there has been substantial compliance with the terms of the most recent Board remand, so adjudication can proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Disability Rating Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14. prohibits compensating a veteran twice for the same symptoms or functional impairment). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be 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. 38 C.F.R. § 4.59. 1. Rating the Right Knee Arthritis Disability The Veteran’s right knee arthritis disability is rated at 10 percent disabling from February 1, 2010 due to noncompensable limitation of flexion due to degenerative joint disease (degenerative arthritis under Diagnostic Code 5003). The Veteran appeals generally for a higher rating. In a VA Form 9, the Veteran writes that both knees are in extremely bad condition and that he needs double knee replacement surgery. After a review of all the evidence, lay and medical, the Board finds that the evidence supports a higher rating of 20 percent disabling for a meniscus condition manifesting symptoms analogous to locking, pain, and effusion (Diagnostic Code 5258) and a separate 10 percent disabling for slight lateral instability (Diagnostic Code 5257). Accordingly, the Veteran’s knee disability will be rated pursuant to Diagnostic Codes 5258 and 5257, as this combination is the most favorable. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under DC 5256. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. Effective February 7, 2021, the musculoskeletal code has been revised, although cases that were pending prior to that date can apply the former code if it is more favorable. Under the newly-revised code, Diagnostic Code 5257 provides that recurrent subluxation or lateral instability receives a 30 percent rating when there is unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating requires either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 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 5257). Revised Diagnostic Code 5257 also provides for ratings for patellar instability. A 30 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note 1 provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Revised Diagnostic Code 5262 provides that malunion of the tibia and fibula should be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. The revised Diagnostic Code for 5262 also provides for medial tibial stress syndrome or shin splints, which is not applicable in this case and is accordingly not provided. 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 5262). Preliminarily, the Board notes that there is a typographical error in the most recent January 2020 VA examination where the VA examiner appears to state that there were no reported flare-ups. Given that the examination later clearly states that the examination was conducted during a flare-up and provides analysis related to flare-ups in terms of range of motion measurements, the Board finds that the earlier statement of no reported flare-ups is in error. Accordingly, the January 2020 VA examination is Sharp-compliant, as mandated by the JMR. Higher Rating for Knee Arthritis Disability of Right Knee After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a meniscus disorder to warrant a favorable change of Diagnostic Code, to Diagnostic Code 5258, which is more favorable and will result in a higher 20 percent rating. In a May 2013 Form 9, the Veteran reported that he experienced popping and cracking of the joint. In July 2015, there was an MRI of the right knee that found “marked flattening and irregularity of the body segment of the medial meniscus compatible with underlying tears.” In a March 2019 privately provided disability benefits questionnaire (DBQ), the private provider stated that there was a possible meniscus condition and noted that there were episodes of joint locking, joint pain, and joint effusion. In a June 2019 statement in support of claim, the Veteran stated that there were times where his knees locked up, causing him to fall. The Board recognizes that VA examinations in January 2020, December 2019, February 2016, March 2013, and June 2010 did not note a meniscus disorder; however, there is other evidence from the private provider indicating a meniscus disorder and related symptomatology (joint locking, pain, and effusion). The Board finds the evidence at least in equipoise on the question of whether there is a meniscus disorder analogous to the meniscus requirement of Diagnostic Code 5258. Ratings are not required to precisely match all the criteria listed in the Diagnostic Code. See 38 C.F.R. § 4.20. Resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire rating period from February 1, 2010, a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From February 7, 2021, the revised musculoskeletal code can also be applied for lateral instability if it would give a higher rating. In this instance, the revised code does not give a higher rating, as the record does not reflect a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical prescription of a brace and/or assistive device (although there is evidence of a prescription for a brace) and the record does not reflect unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing a brace or assistive device. Because the newly-revised Diagnostic Code does not give a higher rating, the Board will apply the former Diagnostic Code to the entire rating period on appeal. The Board has considered whether other Diagnostic Codes could yield a higher rating. The evidence does not show ankylosis, so the provisions of Diagnostic Code 5256 do not apply. Concerning flexion and extension, the greatest limitation of flexion was found in the January 2020 VA examination (70 degrees flexion, in consideration of flare-ups and repetitive use). The March 2019 private DBQ found 90 degrees flexion and all others (December 2019, February 2016, March 2013, and June 2010) were greater than 100 degrees. All the VA examinations had normal (0 degrees) extension, though a June 2011 private treatment record said a limitation of 10 degrees extension. Considering that limitation of flexion at 30 percent disabling is 15 degrees and considering that limitation of extension at 30 percent disabling is extension limited to 20 degrees, neither flexion nor extension alone can be sufficient to warrant a higher rating. Combining 20 percent flexion (30 degrees) and 20 percent extension (15 degrees) is also not supported. Therefore, Diagnostic Codes 5260 and 5261, either alone or in combination, do not yield a higher rating. Finally, there is no evidence of a tibia or fibula impairment, such that Diagnostic Code 5262 would apply. Separate Rating for Instability of Right Knee After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether there is slight lateral instability of the right knee, such that a separate 10 percent disability rating is warranted. In a May 2013 Form 9, the Veteran stated that he had to use a cane for the right knee. In a June 2015 VA treatment record, the physician ordered a replacement knee brace, though the provider did not give the reason for the brace. In a March 2019 privately provided DBQ, the private provider noted that the Veteran used a brace, crutches, cane, and walker due to unstable joints, although there was no response to the inquiry as to whether lateral instability was present. In a June 2019 statement in support of claim, the Veteran stated his knees had buckled, causing him to fall. He reported a specific incident where he had a glass in his hand and noted that there was extensive damage to his left thumb, and that he used a cane. In a January 2020 VA examination, the VA examiner noted a history of moderate lateral instability of the right knee but could not perform joint stability testing, as the Veteran was having increased pain with touch. The VA examiner noted that the Veteran used a cane constantly for ambulation and stability. In short, there is sufficient evidence of lateral instability when considering the lay evidence provided by the Veteran of knee instability. See English v. Wilkie, 30 Vet. App. 347 (2018). The Board acknowledges that there are VA examinations—those conducted in December 2019, February 2016, and March 2013—that had normal joint stability testing; however, the most recent VA examination found that there was lateral instability. Although the VA examiner stated that the lateral instability was “moderate” in degree, the Board finds that the record best supports a finding of “slight” lateral instability, given the history of normal joint stability testing. Resolving reasonable doubt in favor of the Veteran, a separate rating of 10 percent for slight lateral instability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 2. Rating the Cervical Spine Disability The Veteran has a noncompensable (0 percent) rating for the cervical spine disability from February 1, 2010 to March 25, 2013, and a rating of 20 percent disabling from March 26, 2013. The Veteran appeals for a higher rating. The Veteran asserts a limited range of motion in his neck due to stiffness, numbness, and pain. See VA Form 9. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or combined range of motion of the cervical spine greater than 170 degrees but not greater than 325 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for favorable ankylosis of the entire cervical spine or for forward flexion of the cervical spine 15 degrees or less. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are 0 to 45 degrees; and left and right lateral rotation are 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Effective February 7, 2021, the revised Diagnostic Code 5242 is for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010). The revised Diagnostic Code 5243 says that intervertebral disc syndrome should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assigned Diagnostic Code 5242 for all other disc diagnoses. There is also a new Diagnostic Code for traumatic paralysis, which does not apply to this Veteran. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242 to 5244). From February 1, 2010 to March 25, 2013 After a review of all the evidence, lay and medical, the Board finds that the evidence more nearly approximates the criteria for a higher 10 percent disabling rating from February 1, 2010 to March 25, 2013. In a June 2010 VA examination, the cervical spine measured 45 degrees in forward flexion, extension, left lateral flexion, and right lateral flexion. The cervical spine measured 80 degrees in left lateral rotation and right lateral rotation. Because there were not estimates of range of motion measurements due to flare-ups, the Board will retroactively apply the flare-up estimations from the January 2020 VA examination. After doing so, the cervical spine disability is estimated to limit forward flexion to 35 degrees during a flare up, 40 degrees in right lateral rotation, and 40 degrees in left lateral rotation. The result is that the cervical spine disability warrants a 10 percent disability rating for the initial rating period, as forward flexion is between 30 degrees and 40 degrees and because the combined range of motion is greater than 170 degrees but not greater than 335 degrees. Therefore, the Board will grant the 10 percent rating, but no higher, for the cervical spine disability for the rating period from February 1, 2010 to March 25, 2013. Because the Veteran has not had any incapacitating episodes that required physician-prescribed bedrest, the rating criteria for IVDS do not apply. From March 26, 2013 The Veteran is in receipt of a 20 percent disability rating from March 26, 2013 onward for the cervical spine disability. A March 2013 VA examination revealed range of motion measurements of forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 45 degrees, left lateral flexion to 40 degrees, right lateral rotation to 60 degrees, left lateral rotation to 70 degrees. There was evidence of painful motion at all the endpoints. The VA examiner estimated a 10 degree loss in range of motion because of pain. There was evidence of localized tenderness along the paraspinal muscles of the upper back, but no guarding or muscle spasms. The evidence weighs against a rating in excess of 20 percent. There were reported flare-ups resulting in neck and upper back pain. There were no measurements, so the measurements from the January 2020 examination will apply. The flare-up measurements do not support a rating in excess of 20 percent disabling either, as there is not forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. Because the Veteran has not had any incapacitating episodes that required physician-prescribed bedrest, the rating criteria for IVDS do not apply. A November 2017 VA examination revealed range of motion measurements of 20 degrees forward flexion, 20 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 45 degrees right lateral rotation, and 45 degrees left lateral rotation. There was pain noted on examination, but it did not result in additional functional loss. There was a history of flare-ups of severity of 6 out of 10, with a frequency of every 2 to 3 weeks, for a duration of 2 hours. There was evidence of guarding, but it does not result in abnormal gait or abnormal spinal contour. This examination supports the current disability rating of 20 percent due to the range of motion measurement for forward flexion (cervical spine forward flexion greater than 15 degrees but not greater than 30). As there was no estimate given for the range of motion with flare-ups at the November 2017 VA examination, the Board will use the January 2020 estimates of limitations of motion and function during a flare up. The additional limitations attributable to flareups still do not more nearly approximate the criteria for a higher rating. There is not support for a higher disability rating, as there is not forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. Because the Veteran has not had any incapacitating episodes that required physician-prescribed bedrest, the rating criteria for IVDS will not apply. At a December 2019 examination, the Veteran reported flare-ups that at times made the neck was so stiff in the morning that he had to stay in bed a little longer to try to relieve tension. Flare-ups were reported as occurring at least once per week, and prolonged sitting was reported to cause neck pain. At the December 2019 examination, the cervical spine measured 30 degrees in forward flexion, extension, right lateral flexion, and left lateral flexion. The cervical spine measured 50 degrees in right and left lateral rotation. The Veteran experienced functional loss of difficulty turning his head. There was evidence of pain with weightbearing. Flare-ups were estimated at 25 degrees forward flexion, extension, right lateral flexion, and left lateral flexion and 45 degrees right and left lateral rotation. There was evidence of guarding, which results in abnormal gait or abnormal spinal contour. The results of the December 2019 VA examination are consistent with the 20 percent disability rating, but no higher, as there is not forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. Because the Veteran has not had any incapacitating episodes that required physician-prescribed bedrest, the rating criteria for IVDS will not apply. In January 2020, the Veteran attended a VA examination; however, the Veteran had a crook in his neck so was unable to engage in range of motion and other testing. The Board finds that this instance is akin to Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), where the Veteran contended that all motion was painful, but the reported pain with all motion did not demonstrate actual functional impairment. As the Court concluded, the actual functional limitation is what is significant. From all the other evidence of record, the Board can construct a composite picture of the overall degree of functional impairment. The range of motion testing—evidence of the functional limitation—from all the previously described examinations are valid indicators of the overall disability picture. The estimated range of motion due to flare-ups from the January 2020 examination is valid because it is based on the examiner’s understanding of the Veteran’s history, diagnosis, self-report, and presentation. Given that only one month prior the Veteran was able to participate in the testing and given that the testing results are consistent with not higher than a 20 percent rating, with consideration of the estimated limitations of motion and function during flareups, the Board finds that the January 2020 examination does not support a higher rating than 20 percent. Because the Veteran has not had any incapacitating episodes that required physician-prescribed bedrest, the rating criteria for IVDS will not apply. In short, after reviewing all the evidence, lay and medical, the Board finds that a higher disability rating from February 1, 2010 to March 25, 2013 of 10 percent is warranted, but that no increase is warranted for the second phase from March 26, 2013 onward, which is at 20 percent, for the cervical spine disability. 3. Rating the Left Shoulder Disability The Veteran left shoulder disability is rated 10 percent from February 1, 2010 to March 25, 2013, and 20 percent from March 26, 2013 onward. The Veteran appeals for a higher rating, reporting that he experiences pain in the shoulder, a limited range of motion, and that he often hears creaking or groaning. See VA Form 9. After a review of all the evidence, lay and medical, the Board finds that the disability picture more nearly approximates a 20 percent disability rating for the entire period on appeal from February 1, 2010. For the rating period from February 1, 2010, the symptomatology and functional impairment of the left shoulder disability more nearly approximated limitation of motion at the shoulder level The left shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. The Veteran is right-hand dominant, so the right hand is the major joint and the left hand is the minor joint. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. 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.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). For other possible rating codes, Diagnostic Code 5200 provides for ankylosis of the scapulohumeral articulation. Unfavorable ankylosis, where abduction is limited to 25 degrees from the side, warrants 50 percent for the major extremity and 40 percent for the minor extremity. Intermediate, which is between favorable and unfavorable, warrants a 40 percent rating for the major extremity and 30 percent rating for the minor extremity. Favorable ankylosis, abduction to 60 degrees, and can reach mouth and head, warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. 38 C.F.R. § 4.71a. Diagnostic Code 5202 provides for other impairment of the humerus. Loss of the head (flail shoulder) warrants an 80 percent rating for the major extremity and 70 percent rating for the minor extremity. Nonunion of the humerus (false flail joint) warrants a 60 percent rating for the major extremity and a 50 percent rating for the minor extremity. Fibrous union of the humerus warrants a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Recurrent dislocation at the scapulohumeral joint, with frequent episodes and guarding of all arm movements merits a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Recurrent dislocation of the scapulohumeral joint with infrequent episodes, and guarding of movement only at the shoulder level, merits a 20 percent rating for both major and minor extremities. Malunion of the humerus merits 30 percent for the major extremity if there is a marked deformity and 20 percent if moderate deformity. The minor extremity receives 20 percent for marked or moderate. Id. Diagnostic Code 5203 provides for impairment of the clavicle or scapula. Dislocation warrants a 20 percent rating for major or minor extremities. Nonunion with loose movement warrants a 20 percent rating for major or minor extremities. Nonunion without loose movement warrants a 10 percent rating for major or minor extremities. Malunion receives a 10 percent rating for major or minor extremities, although it can also be rated on impairment of function of the contiguous joint. Id. Effective February 7, 2021, Diagnostic Code 5201 is revised to say that flexion and/or abduction limited to 25 degrees from side is a 40 percent rating for the major joint and a 30 percent rating for the minor joint; midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) is a 30 percent rating for the major joint and a 20 percent rating for the minor joint, and at shoulder level (flexion and/or abduction limited to 90 degrees) is 20 percent for the major and the minor joint. Diagnostic Code 5202 is revised to say that recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) is 20 percent for the major and the minor joint. The other parts of Diagnostic Code 5202 have not changed. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5202). From February 1, 2010 to March 25, 2013 After a review of all the evidence, lay and medical, the Board finds that a 20 percent disability rating for the left shoulder is warranted when range of motion lost due to flare-ups is considered. For the rating period from February 1, 2010, the symptomatology and functional impairment of the left shoulder disability more nearly approximates limitation of motion at the shoulder level. The evidence shows a diagnosis of degenerative joint disease of the glenohumeral joint of the left shoulder, which is a form of arthritis. At a June 2010 VA examination, the left shoulder measured 110 degrees flexion and abduction and 90 degrees internal and external rotation. Because there were no range of motion estimates for flare-ups, the Board will apply the most recent (December 2019) VA examination, which found 85 degrees flexion and abduction and 55 degrees external and internal rotation. This measurement supports a 20 percent rating under Diagnostic Code 5201 (limitation of motion at shoulder level) under both the new (from February 7, 2021 onward) and the former (for the entire appellate period) code provisions. The Board has considered the other possibly applicable provisions, but finds that the evidence does not show ankylosis of the scapulohumeral articulation, an impairment of the humerus, or an impairment of the clavicle or scapula. Accordingly, the Board will grant a 20 percent disability rating for the initial stage of the rating from February 1, 2010 to March 25, 2013, but not higher. From March 26, 2013 After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a rating higher than 20 percent for left shoulder disability for the remainder of the rating period on appeal from March 26, 2013. At a March 2013 VA examination, the left shoulder flexion measured 120 degrees with pain at 90 degrees. Left shoulder abduction measured 150 degrees with pain at 150. External and internal rotation measured 90 degrees with pain at 90 degrees. The functional impairment was pain on movement. The VA examiner estimated that there was a 20-degree loss of flexion and abduction with flare-ups. This would mean that the flexion is 70 degrees (20 degrees less than 90, which is where pain was measured) and abduction was 130 degrees. Although this 70 degree flexion measurement is part of the way to the next rating for Diagnostic Code 5201 (“midway between side and shoulder level”), that measurement is still rated at 20 degrees for the non-dominant arm, and the left shoulder is the non-dominant shoulder. Accordingly, even if the Board were to find that the motion was limited to midway between side and shoulder level, a higher disability rating than 20 percent would not be warranted under Diagnostic Code 5201. In February 2016, the Veteran participated in another VA examination. During the February 2016 VA examination, there was no range of motion loss for any motion (flexion, abduction, internal rotation, or external rotation), to include with repetitive use and with flare-ups. Given that the left should has demonstrated restricted movement in multiple examinations, this examination will not be considered probative of the overall disability picture, especially as the left shoulder disability has been shown to be worse at other times and during flareups. In December 2019, the Veteran participated in another VA examination. Flare-ups were described as occurring a couple of times per week, which require more medication and frequent periods of rest. Functional loss includes difficulty with overhead and cross-body movement. Flexion and abduction measured at 90 degrees and external and internal rotation measured at 60 degrees. Pain was noted on all movements and causes functional loss of difficulty with overhead and cross-body movements. As previously noted, the estimated functional loss with flare-ups was 85 degrees flexion and abduction and 55 degrees external and internal rotation. The findings from this December 2019 VA examination are consistent with the 20 percent rating for non-dominant limitation of motion at shoulder level. It does not support a higher rating under Diagnostic Code 5201, which is warranted by limitation of motion to 25 degrees from the side. The newly-revised Diagnostic Code provisions yield the same result. Given the findings above, the Board will grant a 20 percent disability rating for the initial stage of the left shoulder rating (February 1, 2010 to March 25, 2013), and a rating in excess of 20 percent for the period of rating from March 25, 2013. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.