Citation Nr: 21015461 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-14 058 DATE: March 17, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an evaluation in excess of 20 percent prior to August 23, 2020, for a left shoulder disability, and in excess of 30 percent thereafter, is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is manifest by serious symptomatology resulting in occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not demonstrated at any point during the appeal period. He has variously been employed and pursuing a Master’s degree during at least a portion of the appeal period. 2. Prior to August 23, 2020, the Veteran’s left shoulder disability is not manifest by range of motion of the arm limited to 25 degrees or less from the side, ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Veteran is right handed. 3. From August 23, 2020, the Veteran is currently in receipt of the highest schedular rating for a left shoulder disability of a minor joint. There are no symptoms identified that are not contemplated by the schedular criteria. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for an evaluation in excess of 20 percent prior to August 23, 2020, and in excess of 30 percent thereafter, for the Veteran’s left shoulder disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5201 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1988 to January 1993. An October 2018 Board decision denied an evaluation in excess of 70 percent for PTSD and an evaluation in excess of 20 percent for a left shoulder disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which remanded that decision in a June 2019 Order, based upon a Joint Motion for Partial Remand (JMPR). In accordance with the JMPR, the Board remanded this case for additional development in March 2020. The matter has now returned to the Board for appellate review. In September 2020, the Agency of Original Jurisdiction (AOJ) issued a rating decision and supplemental statement of the case (SSOC) granting an increase of the evaluation for a left shoulder disability from 20 percent disabling to 30 percent disabling from August 23, 2020. The issue remains in appellate status as the maximum schedular rating has not been assigned from the date of claim. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., “staged ratings”). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). The Veteran’s PTSD has been assigned an evaluation of 70 percent throughout the appeal period pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria pertaining to the Veteran’s appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. Further, ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the General Rating Formula. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board notes at the outset that the Court has previously provided direction on the interpretation and the application of the factors for evaluation of the several ratings under the General Rating Formula in 38 C.F.R. § 4.130 in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In now looking to the Court’s points in Bankhead for guidance, the Board should not confine its analysis only to identifying the presence of certain symptoms to determine the appropriate rating under the General Rating Formula, but also must draw fact-based conclusions as to whether those symptoms have caused the level of occupational and social impairment associated with a particular disability rating. Id. at 14. See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Indeed, the Board acknowledges that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. Nonetheless, in evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration, consider their impact as a whole and make a quantitative assessment accordingly. Id. at 26-27. See also Vazquez-Claudio, 713 F.3d at 115-17. See generally Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); Mittleider v. West, 11 Vet. App. 181, 182 (1998). As noted above, the Veteran’s PTSD has been assigned an evaluation of 70 percent throughout the appeal period. After reviewing the evidence of record under the laws and regulations as set forth above, the Board finds that a preponderance of the evidence weighs against the assignment of an evaluation greater than 70 percent at any time during the appeal period under the applicable schedular criteria. In order to warrant a higher evaluation during this period, the Veteran’s PTSD must be manifest by symptomatology so severe as to result in total occupational and social impairment. Private treatment records from April 2014 reveal that the Veteran sought emergency medical attention for his PTSD. He reported that for the previous 5 to 6 months he experienced paranoid thoughts. Specifically, he felt like people were following him and, in particular, that someone from his job was following him at home. The examiner noted that the Veteran was positive for hallucinations, but that the Veteran was negative for depression, suicidal ideation, and substance abuse. The Veteran presented with symptoms of excessive worry and anxiety. He was alert and oriented to person, place, and time. He was hyperverbal with flat mood and affect. He appeared well developed and well nourished, and he was in no apparent distress. The examiner noted that the Veteran’s thought content was paranoid and delusional. His memory was intact to immediate, recent and remote recall and his concentration was normal. Additionally, the Veteran reported that he had a panic attack and that he was having flash backs immediately before seeking emergency treatment. He also reported being disoriented and scared at that time. The Veteran’s spouse reported that the Veteran had become more irritable at home with her. Further, she stated that the Veteran was not sleeping. She also noted that the Veteran was having night terrors, he was pacing, and he had frequent mood swings. As well, she reported that the Veteran had never been physically aggressive with her and had never posed as a threat. The Veteran admitted to erratic sleep and decrease in appetite over the past couple of weeks. The Veteran stated that a major trigger exacerbating his mood was his thoughts of a co-worker following him. He admitted to some work stress currently. The Veteran declined voluntary hospitalization and a psychiatric admission was not required. The Veteran was discharged home with his spouse. Likewise, VA treatment notes from April 2014 reveal that the Veteran contacted the VA Mental Health Hotline. The representative documented that the Veteran denied suicidal ideation. Additionally, the representative noted that the Veteran reported an increase in his PTSD symptoms over the past two weeks. Specifically, the Veteran reported some issues and concerns with someone at work that have caused his PTSD symptoms to increase. He reported that for the last 10 years he had been handling things well. The Veteran reported that he was having flashbacks and feeling like he was on guard all the time. The representative noted that the Veteran had an upcoming appointment for psychiatric treatment, and he stayed on the call with the Veteran until the call ended normally. In July 2014, the Veteran was afforded a VA examination in connection with his claim. A diagnosis of PTSD was confirmed. The examiner reported that the Veteran was alert and cooperative for the examination. At the time of the examination, the Veteran reported that he was employed full time by VA as a peer support supervisor. He also reported that he received disciplinary or negative evaluations from this employment. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring once per week, mild memory loss, and difficulty adapting to stressful circumstances. At the time of the examination, the examiner found that the Veteran was capable of managing his financial affairs. Pursuant to the Board’s March 2020 remand, another VA examination was conducted to determine the severity of the Veteran’s PTSD. A diagnosis of PTSD was confirmed. At the time of the examination, the Veteran reported that he had been married for 8 years. He reported that his marriage had been strained because of his mood swings and irritability. Further, the Veteran noted that he has two grown children, with whom he reported no contact. The Veteran indicated that he continued to have stress at his job. Specifically, that he worried about losing his job. He reported that he had been missing significant work due to emotional distress, anxiety, fatigue, and headaches. He reported that he liked his work despite the stress associated with his job. The Veteran was alert and cooperative at the time of the examination. He showed a labile range of affect, though his mood was congruent with topics discussed. The examiner noted that the Veteran had logical and linear thought processes. There were no signs of a psychosis identified. The examiner explained that the Veteran’s PTSD had generated numerous negative effects upon his functioning. In particular, the examiner indicated that the Veteran was often fearful and hyper-alert. Further, the examiner noted that the Veteran’s anxiety was often so elevated that he was prone to avoid social gatherings altogether and that the Veteran had described frequent interpersonal conflicts. Consequently, the examiner observed that the Veteran demonstrated a preference for social avoidance and that the Veteran’s employment had been negatively affected. Based on the above evidence, the Board finds that the Veteran does not experience total occupational and social impairment as a result of his service-connected PTSD. During the period on appeal the Veteran has been reported to be able to perform activities of daily living, to include handling his own finances and maintaining minimal personal hygiene. While the Veteran has been reported during this period to have significant deficiencies interacting with others, the Veteran’s speech and thought processes are not reported to be illogical or irrelevant, and there is no evidence of any gross impairment in thought or communication. Although the August 2020 VA examiner noted that the showed a labile range of affect, the Veteran is not noted to be grossly inappropriate in his reactions; nor was the Veteran shown to be unable to control his impulses. Further, the Veteran is consistently reported to deny any suicidal or homicidal ideation, and he is not shown to be a persistent danger to either himself or others. Equally, although the latest examiner noted that the Veteran had persecutory ideation, the examiner clearly indicated that this did not present as an overt psychosis. Moreover, no examiner noted that the Veteran has been disoriented as to time or place. While the April 2014 private treatment records reveal that the Veteran has had episodes of delusions or hallucinations, later records do not reflect that these delusions or hallucination reoccurred or that they are persistent; moreover, they are not mentioned in any later examination. Likewise, although the Veteran reported negative disciplinary actions at his place of employment, the Veteran also reported that his employer makes accommodations for his PTSD and the Veteran has consistently reported that he has maintained his job. Thus, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 70 percent disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In addition, it appears that the Veteran has remained employed throughout at least most of the appeal period and is pursuing a Master’s degree more recently.. The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as anxiety, anger, flashbacks, disturbing memories, panic attacks, hypervigilance, and depressed mood. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). The Veteran is also credible in his belief that he is entitled to an evaluation in excess of 70 percent. However, the more probative evidence of record does not indicate that the assignment of an evaluation in excess of 70 percent is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating psychiatric disorders. Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected PTSD varied to such an extent that a rating greater or less than the 70 percent rating currently assigned would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). Overall, the Board concludes that the evidence discussed above, as well as all other evidence of record not specifically addressed including VA and private treatment records and lay evidence, supports no more than a 70 percent schedular evaluation at any point during the appeal period. Accordingly, the Board finds the preponderance of the evidence is against an evaluation greater than 70 percent, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. 2. Entitlement to an evaluation in excess of 20 percent prior to August 23, 2020, and in excess of 30 percent thereafter, for a left shoulder disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for service-connected left shoulder disability, prior to August 23, 2020, and in excess of 30 percent thereafter. The Veteran is right handed, so the evaluation if for the nondominant arm. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran’s left shoulder disability has been evaluated 20 percent disabling, prior to August 23, 2020, and as 30 percent disabling thereafter, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5201 (2019). Initially, the Board notes the record shows the Veteran is right-handed; therefore, the left shoulder disability will be evaluated as the “minor” joint. As noted above, this disability is rated under DC 5010-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). DC 5010 pertains to arthritis due to trauma substantiated by x-ray findings. DC 5201 pertains to limitation of motion of the arm. 38 C.F.R. § 4.114, Diagnostic Codes 5010, 5201. Traumatic arthritis is to be rated on the basis of limitation of motion. When however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71, Diagnostic Code 5010. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5201 set forth that a 20 percent evaluation is warranted with motion of the arm limited to either at shoulder level or midway between the side and shoulder level. A maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5201 set forth that a 20 percent rating is warranted for with motion of the arm limited to either shoulder level (flexion and/or abduction limited to 90 degrees) or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). A maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. Turning to the record, VA treatment records from June 2014 reveal that the Veteran reported instability of his left shoulder and forward elevation was noted as past 90 degrees. Diagnostic testing from July 2014 showed the Veteran’s left shoulder had mild degenerative arthritis of the AC joint with minimal vacuum phenomena. Also, the testing found minimal degenerative changes in the glenoid fossa and humeral greater tuberosity. Lastly, the testing showed small soft tissue calcification but no evidence of acute fracture, subluxation, or gross muscle atrophy. Based on these findings, the reading physician characterized the Veteran’s left shoulder impairment as a minor abnormality. Further diagnostic testing of the Veteran’s left shoulder from July 2014, revealed mild degenerative arthritis of the AC joint with small joint effusion and a partial tear of the bicep tendon. The Veteran was afforded a VA examination in connection with his claim in July 2014. A diagnosis of instability of the left shoulder due to acromioclavicular osteoarthritis was found. The examiner also noted a rotator cuff tear and shoulder impingement syndrome. The Veteran reported that his condition is subject to flare-ups, which make it difficult to lift and carry heavy objects, push, and pull. Upon examination, flexion was limited to 75 degrees, abduction was limited to 90 degrees, internal rotation was limited to 35 degrees, and external rotation was limited to 30 degrees. Testing also showed pain on weightbearing and non-weightbearing use, as well as moderate pain to palpation at the AC joint. The Veteran exhibited loss of movement, movement, weakness, incoordination, and pain on movement. Crepitus was also present. The examiner opined that the Veteran had limitations with prolonged heavy lifting, carrying, pushing, pulling, flexing, abducting, and rotating. Another VA examination was conducted in September 2020 in accordance with the Board’s March 2020 remand. Diagnoses of left shoulder impingement, left rotator cuff tear, left acromioclavicular joint osteoarthritis, left glenohumeral joint instability, and left shoulder instability, were reported. The Veteran described significant pain and the inability to lift his left arm over his head during flare-ups. Range of motion testing revealed flexion and abduction limited to 20 degrees and external and internal rotation limited to 5 degrees. The examiner found that the Veteran had severe limitation with all ranges of motion and functional loss with overhead reaching and lifting over 12 pounds. He had constant loud popping during all movement of the left shoulder at the time of the examination. Muscle strength testing revealed reduced strength in the left shoulder. There was no evidence of muscle atrophy or ankylosis. AC joint osteoarthritis was noted. There were no conditions or impairments of the humerus reported. Based on the above, evidence, the Board finds that an evaluation in excess of 20 percent for the Veteran’s left shoulder disability is not warranted prior to August 23, 2020. In this regard, there is no medical evidence that indicates range of motion is limited to no more than midway between side and shoulder level (flexion and/or abduction limited to 90 degrees) or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), or that he was diagnosed with ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Board observes that the Veteran’s left shoulder disability for this period warrants no more than a 20 percent rating under either the old or the new rating criteria. As noted above, from August 23, 2020, the Veteran’s left shoulder disability has been assigned a 30 percent evaluation pursuant to Diagnostic Code 5201 which is the highest rating available for a minor joint under this diagnostic code, which criteria did not change under the new rating criteria. The highest rating of 30 percent is assigned when limitation of motion of the arm is limited to 25 degrees from the side 38 C.F.R. § 4.71a, Diagnostic Code 5201. In this case, there are no available ratings greater than the 30 percent currently assigned because as discussed above, there is no medical evidence that indicates that the Veteran was diagnosed with ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Board acknowledges the Veteran’s subjective complaints of pain throughout his ranges of motion. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran’s functional range of motion of the left shoulder to less than those levels discussed above and, as such, does not serve as a basis for an increased evaluation at any point during the appeal period. See Mitchell, 25 Vet. App. at 32 (“pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.”). The Board also acknowledges the Veteran’s contentions that his service-connected left shoulder disability warrants an evaluation greater than 20 percent prior to August 23, 2020. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left shoulder disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). As such, for the reasons discussed above, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent prior to August 23, 2020, and in excess of 30 percent thereafter, for the Veteran’s left shoulder disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 55. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.