Citation Nr: 21024465 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-06 280 DATE: April 22, 2021 ORDER Prior to August 31, 2018, and since October 1, 2018, an initial rating in excess of 20 percent for right shoulder limitation of motion as a residual of capsulorrhaphy is denied. Prior to June 30, 2017, a separate evaluation of 20 percent for right shoulder recurrent dislocation as a residual of capsulorrhaphy is granted. From June 30, 2017 until August 30, 2018, a separate evaluation of 30 percent right shoulder recurrent dislocation as a residual of capsulorrhaphy is granted. Since October 1, 2018, a separate compensable evaluation for right shoulder recurrent dislocation as a residual of capsulorrhaphy is denied. Prior to February 2, 2018, and since April 1, 2018, an initial rating in excess of 20 percent for left shoulder limitation of motion as a residual of capsulorrhaphy is denied. Prior to February 2, 2018, a separate evaluation of 20 percent for left shoulder recurrent dislocation as a residual of capsulorrhaphy is granted. Since April 1, 2018, a separate compensable evaluation left shoulder recurrent dislocation as a residual of capsulorrhaphy is denied. FINDINGS OF FACT 1. Prior to August 31, 2018, the Veteran’s right shoulder limitation of motion was manifested by no worse than 85 degrees on abduction and 110 degrees on flexion; since October 1, 2018, the Veteran’s right shoulder limitation of motion was consistently manifested by 90 degrees on flexion and abduction. 2. Prior to June 30, 2017, the Veteran’s right shoulder disability was manifested by recurrent dislocations, occurring infrequently. 3. From June 30, 2017 to August 30, 2018, the Veteran’s right shoulder disability was manifested by recurrent dislocations, occurring frequently. 4. From October 1, 2018, the Veteran’s right shoulder was not manifested by recurrent dislocations. 5. Prior to February 2, 2018, the Veteran’s left shoulder limitation of motion was manifested by no worse than 70 degrees on abduction and 100 degrees on flexion; since April 1, 2018, the Veteran’s left shoulder was consistently manifested by 90 degrees on flexion and abduction. 6. Prior to February 2, 2018, the Veteran’s left shoulder disability was manifested by recurrent dislocations. 7. April 1, 2018, the Veteran’s left shoulder disabilitywas not manifested by recurrent dislocations. CONCLUSIONS OF LAW 1. Prior to August 31, 2018, and since October 1, 2018, the criteria for an initial evaluation in excess of 20 percent for right shoulder limitation of motion as a residual of capsulorrhaphy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5201. 2. Prior to June 30, 2017, the criteria for a separate evaluation of 20 percent, and no higher, for right shoulder recurrent dislocations are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5202. 3. From June 30, 2017 to August 30, 2018, the criteria for a separate evaluation of 30 percent, and no higher, for right shoulder recurrent dislocations are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5202. 4. From October 1, 2018, the criteria for a separate compensable evaluation for right shoulder recurrent dislocations are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5202. 5. Prior to February 2, 2018, and since April 1, 2018, the criteria for an evaluation in excess of 20 percent for left shoulder limitation of motion as a residual of capsulorrhaphy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5201. 6. Prior to February 2, 2018, the criteria for a separate evaluation of 20 percent for left shoulder recurrent dislocations, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5202. 7. Since April 2018, the criteria for a separate compensable evaluation for left shoulder for recurrent dislocations are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from July 1987 to February 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). Service connection for residuals of both left and right shoulder capsulorrhaphy was granted in the August 2011 rating decision on appeal, and 10 percent evaluations were assigned for each shoulder, effective March 1, 2010, under Diagnostic Code 5003-5201. Hyphenated diagnostic codes are used to identify the diagnosed condition (first Code) and identify the criteria used to establish the evaluation (second Code). 38 C.F.R. § 4.27. In this instance, the assigned evaluations reflect limitation of motion. During the pendency of the appeal, increased evaluations were granted. In an April 2018 decision, the left shoulder was assigned a 100 percent evaluation from February 2, 2018 to March 31, 2018 under 38 C.F.R. § 4.30, and the right shoulder was assigned a 100 percent evaluation from August 31, 2018 to September 30, 2018 under 38 C.F.R. § 4.30. As these periods represent awards of the maximum evaluation, and the Veteran has not objected to the effective dates or the duration of the total evaluations following surgery and convalescence, the 100 percent stages are not considered currently on appeal. In a February 2018 rating decision, increased 20 percent ratings were awarded for each shoulder for the entirety of the appeal period, outside the 38 C.F.R. § 4.30 periods. The stages of 20 percent rating remain on appeal. A May 2019 Board decision, in relevant part, denied entitlement to evaluations under Code 5201 for the left and right shoulders. The Veteran appealed the denials to the Court of Appeals for Veterans Claims (Court). In March 2020, based on a Joint Motion for Partial Remand (JMPR), the Court remanded the issues, finding that the Board did adequately support the conclusion that separate evaluation under Diagnostic Code 5202 would constitute prohibited pyramiding under 38 C.F.R. § 4.14. In August 2020, the Board remanded the matter, for a new VA shoulder examination. Substantial compliance with the Board’s prior remand orders is demonstrated, and the matters are once again before the Board. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in July 2010. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There are numerous Diagnostic Codes which are potentially applicable to evaluation of a shoulder disability. Code 5200 pertains to ankylosis of scapulohumeral articulation; however, as no ankylosis is evidenced here, the Code is not applicable. Code 5203 rates impairment of the clavicle or scapula. Such impairments are not evidenced during this period either, as such, it is not applicable. Code 5201 for limitation of motion and Code 5202 for impairment of the humerus are applicable, and are discussed in full. 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). If a law or regulation changes during 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). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The substance of the applicable Codes has not changed, though some clarity has been added. Code 5201 has been altered to clarify that limitation of motion includes either flexion or abduction and that shoulder level is 90 degrees and midway between side and shoulder is 45 degrees. Code 5202 provides the same clarification, confirming that 90 degrees applies to shoulder level, and 45 degrees to midway. Given the greater specificity of the amended criteria, the Board finds the older criteria to be more beneficial, and will apply them. Codes 5200 and 5203 have not been amended and are not involved in the rating of the disabilities here, as is discussed further below. Under the rating criteria for the shoulder and arm, there are different rating schedules depending on whether the arm involved is major (dominant) or minor (non-dominant). The VA examination reports confirm that the Veteran is right-hand dominant. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the major arm at shoulder level. A higher rating of 30 percent is assigned for limitation of motion of the major arm to midway between side and shoulder level. A 40 percent rating is assigned for limitation of motion of the major to 25 degrees from the side. A 20 percent rating is assigned for limitation of motion of the minor arm at shoulder level or limitation of motion of the minor arm to midway between side and shoulder level. A higher rating of 30 percent is assigned for limitation of motion of the minor arm to 25 degrees from the side. The normal ranges of shoulder motion include flexion (forward elevation) from 0 degrees to 180 degrees, abduction (elevation of the arm to the side) from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. As noted above, since February 7, 2021, the criteria are adjusted to reflect that shoulder level means flexion and/or abduction limited to 90 degrees, midway between side and shoulder level means flexion and/or abduction limited to 45 degrees, and that limitation to 25 degrees applies to flexion and/or abduction. Under Diagnostic Code 5202, when there is malunion of the humerus in the major arm, a 20 percent rating is assigned with moderate deformity and a 30 percent rating is assigned with market deformity. A 20 percent rating is also assigned when there is recurrent dislocation of the humerus at the scapulohumeral joint in the major arm, with either infrequent episodes, and guarding of movement only at shoulder level, and a 30 percent rating is assigned with frequent episodes and guarding of all arm movements. A 50 percent rating is assigned when there is fibrous union of the arm; a 60 percent rating is assigned when there is nonunion of (false flail joint) the humerus in the arm; and an 80 percent rating is assigned when there is loss of head of (flail shoulder) the humerus in the arm. When there is malunion of the humerus in the minor arm, a 20 percent rating is assigned with moderate and marked deformity. A 20 percent rating is assigned when there is recurrent dislocation of the humerus at the scapulohumeral joint in the minor arm, with infrequent episodes, and guarding of movement only at shoulder level, as well as for frequent episodes and guarding of all arm movements. A 40 percent rating is assigned when there is fibrous union of the arm; a 50 percent rating is assigned when there is nonunion of (false flail joint) the humerus in the arm; and a 70 percent rating is assigned when there is loss of head of (flail shoulder) the humerus in the arm. Since February 7, 2021, the criteria are adjusted to clarify that shoulder level means flexion and/or abduction at 90 degrees. Additionally, the comma was removed from “infrequent episodes, and guarding of movement only at shoulder level[.]” Evidence The Veteran was afforded a VA examination in March 2011. He reported stiffness and fatigability, but denied weakness, swelling, giving way, lack of endurance, locking, deformity, tenderness, effusion, subluxation, pain, and dislocation. He further reported flare-ups lasting 2-3 hours at a time, resulting in limited mobility and limited range of motion. Such flare ups were precipitated by physical activity, resulting in pain with a severity of 5 on a 10-pain scale, and alleviated by rest. The Veteran described his overall functional impairment consisted of limited mobility. The examiner stated that the Veteran’s shoulders showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. Additionally, ankylosis was absent. The Veteran’s range of motion for the shoulders were measured as follows: flexion and abduction to 180 degrees in both shoulders, external rotation to 80 degrees on the right and 75 degrees on the left, and internal rotation to 90 degrees in both extremities. Repetitive range of motion testing was possible, and no additional degree of limitation was noted. After repetitive testing, the Veteran’s right and left shoulders were not additionally limited by pain, fatigue, weakness, or lack of endurance or incoordination. X-rays for both the left and right shoulder showed post-surgical changes without evidence of hardware failure or complication. In the September 2011 notice of disagreement, the Veteran acknowledged that he could lift his arms to shoulder level but stated he could no longer lift objects heavier than 40 pounds. He added that he could no longer bowl or golf and often experienced dislocation and pain in his shoulders. In his March 2012 VA Form 9, he reiterated that he is unable to partake in bowling, golfing, and lifting weights, and that experiences pain and shoulder dislocation when performing activities of daily life. VA treatment records indicate that a right shoulder x-ray was completed in February 2014 based on the Veteran’s report that he was experiencing instability and dislocation within the last week. The impression revealed changes in the right anterior/inferior glenoid and no acute osseous abnormalities. In August 2014, a left shoulder x-ray was completed, with findings demonstrating no evidence of fracture or dislocation. February 2015 VA treatment note documents that the Veteran’s range of motion for both shoulders was measured as abduction to 85 degrees and forward flexion to 110 degrees, both without pain. The Veteran was afforded a VA shoulder examination in August 2016. Notably, only his right shoulder was evaluated here. The Veteran reported that in 2014 his shoulder began intermittently locking to the point that he was unable to move it. He stated that two weeks prior to the VA examination, his shoulder popped out and popped back in. The Veteran reported chronic pain, which he rated as six out of ten. The Veteran denied flare-ups. Regarding functional impact, the Veteran noted his inability to work on his vehicle, push a lawn mower, or work with wood. The Veteran was noted to be right hand dominant. The Veteran’s range of motion for the right shoulder was measured as follows: flexion to 110 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 80 degrees. Pain was noted on flexion and abduction, but the examiner indicated it did not cause functional loss. There was no evidence of pain with weigh bearing, localized tenderness, or pain on palpation of the joint, or crepitus. Initially, the examiner found that repetitive range of motion testing did not result in additional functional loss or range of motion after three repetitions. However, in noting that the Veteran was examined immediately after repeated use over time, the examiner stated that he was unable to say whether pain, weakness, fatiguability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time, but conceded that the Veteran showed some loss of range of motion during repetition while completing the examination. The examiner further noted that the Veteran was unable to perform over-the-head work. There was no reduction of muscle strength or muscle atrophy. The Hawkins’ Impingement Test for the right shoulder was positive, which indicated rotator cuff tendinopathy or tear. Shoulder instability, dislocation, or labral pathology were suspected. Specifically, there was a history of right shoulder recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The frequency was noted to be infrequent. Crank apprehension and relocation testing provided positive results. A clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition was not suspected. The Veteran did not have a loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. Malunion of the humerus with moderate or marked deformity was absent. In April 2017, the Veteran reported that his left shoulder felt out of place. He said that while he is usually able to manipulate it and put it back, he couldn’t do at this date. He reported that this had last occurred a week and a half prior. In another note, the Veteran reported that this happens frequently. Upon assessment, it was found that the Veteran had recurrent dislocations on bilateral shoulders, which was worse on the left side. However, there was no dislocation noted on x-ray. In May 2017, the left shoulder was found to have chronic pain, with symptoms of aching, sharp, and throbbing. The Veteran reported pain for many years getting progressively worse. He said that it feels like his shoulder “pops out” and that it is very painful when this happens, and that after the shoulder goes back into place, he takes Motrin and muscle relaxers and rests. A January 2017 VA treatment note documents that the Veteran reported episodes of instability or subluxation in the shoulders with associated pain. The Veteran described that his shoulders would completely dislocate every two to three weeks, but he was able to self-reduce his shoulders with rotation of his arms. The provider noted that with true dislocations, the Veteran would not be able to reduce it on his own. Range of motion for the right shoulder was measured as follows: flexion to 120 degrees, abduction to 85 degrees, and external rotation to 20 degrees. Range of motion for the left shoulder was measured as follows: flexion to 100 degrees, abduction to 70 degrees, and external rotation to 10 degrees. Internal rotation measurements were not made in degrees. The Veteran was afforded another VA shoulder examination in June 2017. The Veteran reported both flare-ups and functional loss or functional impairment, describing recurrent pain, especially with flare-ups, which impact his ability to live heavy objects and raise his hands above his head. The Veteran’s range of motion for the right shoulder was measured as follows: flexion to 170 degrees, abduction to 170 degrees, external rotation to 90 degrees, and internal rotation to 85 degrees with pain in all ranges. The Veteran’s range of motion for the left shoulder was measured as follows: flexion to 165 degrees, abduction to 170 degrees, external rotation to 90 degrees, and internal rotation to 80 degrees with pain in all ranges. There was objective evidence of mild tenderness anteriorly of the shoulder joints or associated soft tissue. There was no evidence of pain with weight bearing or crepitus in either shoulder. For both shoulders, the decreased range of motion was found to impact the Veteran’s ability to lift heavy objects, especially above his head, and to raise his arms above his head. Repetitive range of motion testing was possible for both shoulders, and no additional degree of limitation was noted. The examiner noted that neither the right nor left shoulders were examined immediately after repetitive use over time, and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner concluded that he is unable to say without mere speculation if pain, weakness, fatiguability, or incoordination significantly limit functional ability with repeated use over time, concluding that there is insufficient objective information to make a determination free of speculation. The examiner also determined that there is insufficient objective information to make a determination free of speculation regarding estimating range of motion. The examiner made these same findings regarding flare-ups. Muscle atrophy and ankylosis in the shoulders were absent. A rotator cuff condition was not suspected in either shoulder. However, there was evidence of right and left shoulder instability, dislocation, or labral pathology. Specifically, frequent episodes of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint in both shoulders were noted. There was no indication of guarding of movement at the shoulder level or guarding of all arm movement. A clavicle, scapula, AC joint or sternoclavicular joint condition was not suspected in either shoulder. Additionally, the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus in either shoulder. Malunion of the humerus with moderate or marked deformity in the shoulders was not noted. Objective pain was noted for both shoulder when used in non-weight bearing, but passive range of motion testing either could not be performed or was found to be medically inappropriate. In VA treatment notes from August 2017, the Veteran continued to complain of left shoulder pain with instability, reporting trouble with sleeping, difficulty with mowing, fishing, and doing everyday things. He stated that he must keep his arm down to prevent it from “popping” out, which has gotten worse over time. Testing was completed, which revealed left shoulder abduction to 100 degrees, extension to 60 degrees, flexion to 120 degrees, external rotation to 75 degrees and internal rotation to 90 degrees. It was noted that an apprehension test was positive. The treatment notes indicated an assessment of left shoulder instability. In VA treatment notes from November 2017 the Veteran complained of bilateral shoulder pain and instability, reporting painful events of instability or subluxation several times a day. He reported that his shoulder “binds up.” He reported that both shoulders completely dislocate every 2-3 weeks, although he can self-reduce by rotating his arm. On the right upper extremity, active forward flexion measured to 120 degrees, abduction to 85 degrees, external rotation to 20 degrees, and internal rotation to back pocket (not measured in degrees). On the left upper extremity, active forward flexion measured to 100 degrees, abduction to 70 degrees, external rotation to 10 degrees, and internal rotation to back pocket. For both extremities, it was noted that the Veteran reported the sensation of instability posteriorly rather than anteriorly with abduction and external rotation. It was found that with the load and shift tests, the patient resisted making examination challenging, but felt like he could sublux the humeral head to glenoid rim posteriorly. It was noted that the examination showed limitation by pain and guarding. The treating physician commented, however, that with true dislocations, the Veteran would not be able to reduce his shoulder on his own, and that it was likely that he had an OCD lesion or prominent anchor catching that was causing the binding sensation described by the patient. The following day, the Veteran’s feeling was described as “binding” and “catching” which the Veteran then unlocks himself. It was noted that upon examination he guards significantly which makes it difficult to exam him. The Veterans feelings of dislocation on various types of examination were noted, and the examiner reported that he did feel grinding in his joint when he does gentle active motion, but that his examination was very inconclusive for various reasons. The examiner stated that he thought there were some element of arthritic changes in the joint, possibly prominent suture anchors also. He thought that “binding/catching” was likely when he has kissing arthritic lesions coming into contact, and that he was unsure whether the dislocations were “true.” January 2018 VA treatment note indicates that the Veteran presented with a history of painful bilateral shoulder instability and/or subluxation. The Veteran noted pain and instability versus subluxation episodes several times a day. He reported dislocations every 2-3 weeks, and self-reduction by rotation of his arm. Range of motion for the right shoulder was measured as follows: flexion to 120 degrees, abduction to 85 degrees, and external rotation to 20 degrees. Range of motion for the left shoulder was measured as follows: flexion to 100 degrees, abduction to 80 degrees, and external rotation to 15 degrees. Internal rotation measurements were not made in degrees. The Veteran underwent a left shoulder arthroscopy in February 2018. The Veteran was afforded a VA shoulder examination in March 2018. Regarding functional impact, the Veteran noted difficulty with heavy lifting, but did not report any flare-ups. The Veteran’s range of motion for the right shoulder was measured as follows: flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was no objective evidence of localized tenderness or pain on palpation of the right shoulder joint or associated soft tissue. Additionally, there was no evidence of pain with weight bearing or crepitus. The Veteran’s range of motion for the left shoulder was measured as follows: flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. There was objective evidence of mild localized tenderness or pain on palpation of the anterior left shoulder joint or associated soft tissue. There was evidence of pain with weight bearing or crepitus in left shoulder. The decreased range of motion impacted the Veteran’s ability with overhead lifting. Repetitive range of motion testing was possible for both shoulders, and no additional degree of limitation was noted. For both arms, the examination was not completed immediately after repetitive use over time, and the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated used over a period of time. The Veteran did not display any reduced muscle strength or any muscle atrophy. A rotator cuff condition was not suspected in the right shoulder but was suspected in the left shoulder. Specifically, the Hawkins’ Impingement Test and the empty-can test were positive for the left shoulder. Right and left shoulder instability, dislocation, or labral pathology were not suspected. A clavicle, scapula, AC joint or sternoclavicular joint condition was not suspected in either shoulder. Additionally, the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus in either shoulder. Malunion of the humerus with moderate or marked deformity in the shoulders was not noted. The examiner found that the Veteran’s shoulder disabilities would impact his ability to perform occupational tasks, in that he would have difficulty engaging in heavy overhead lifting if work duties demanded it. There was no objective evidence of pain on non-weight bearing, and passive range of motion testing revealed the same results as active range of motion testing. The Veteran was noted as having scarring from his arthroscopy, which were not found to be painful or unstable. The Veteran had previously received a separate evaluation for bilateral scarring in a February 2018 rating decision. In VA treatment records from March 2018, it was noted that the Veteran’s left shoulder was doing well following the surgery, and that all wounds had healed without issue. On active range of motion testing, he was able to elevate his shoulder to 160 degrees and displayed external rotation to 45 degrees. In August 2018 VA treatment records, the Veteran stated that his right shoulder will occasionally “lock up” on him, most recently occurring shortly after his left shoulder surgery. He stated that holding it by his side and massaging it helps to relieve the sensation. Although he displayed no pain at this appointment, he reported 10/10, sharp pain when it locks up. Shortly thereafter, the Veteran underwent right shoulder arthroscopic hardware removal and debridement. In September 2018 VA treatment records, the Veteran completed range of motion testing in the right upper extremity, displaying shoulder abduction measuring 90 degrees, shoulder flexion measuring 90 degrees, shoulder extension measuring 60 degrees, external rotation to 75 degrees and internal rotation to 90 degrees. In April 2020, the Veteran reported that his shoulder pain and “popping” had returned. In July 2020, he reported that he had experienced signification reduction in his pain and increased in range of motion since his 2018 surgeries. However, in the past three months, he was experiencing an increase in shoulder pain, greater in the left than the right, and a reduction in range of motion, greater in the right than the left. The patient was found to be unable to lift his arms above his shoulder and apprehensive in all shoulder movements due to pain. Active and passive range of motion testing was completed, and the Veteran displayed 90 degrees on forward flexion, 45 degrees on abduction, 35 degrees on internal rotation, and 15 degrees on external rotation. He displayed positive results on Empty Can and Hawkin’s testing. The results were the same for both. The Veteran was afforded a VA shoulder examination in September 2020. The Veteran reported a dull aching pain in the shoulder, worse in the left than right, that increases when he lifts his arm to shoulder height. He reported internal and external rotation of the shoulder with the feeling that his shoulder feels unstable. He reported that he has difficulty completing tasks like putting on a belt. He further reported feeling that the left shoulder gets stuck at times, but that after repeated movement, it will pop, and then the shoulder will fall back into place. He reported that prior to his 2018 surgeries, he was experiencing dislocations of the shoulder about three times a week, but that since then, he has not had recurrence of dislocation, but has lost some range of motion and is cautious with movement of the shoulder. He stated that he has been taking Motrin for the pain. The Veteran did not report flare-ups but did report functional loss or impairment, described as increased shoulder pain with lifting and shoulder movements. The Veteran’s range of motion for the right shoulder was measured as follows: flexion to 90 degrees, abduction to 90 degrees, external rotation to 40 degrees, and internal rotation to 70 degrees. Pain was evidenced on examination but was not found to result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the right shoulder joint or associated soft tissue. Additionally, there was no evidence of pain with weight bearing or crepitus. The Veteran’s range of motion for the left shoulder was measured as follows: flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. Pain was evidenced on examination but was not found to result in or cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the left shoulder joint or associated soft tissue. There was also no evidence of pain with weight bearing or crepitus in the left shoulder. Repetitive range of motion testing was possible for both shoulders, and no additional degree of limitation was noted. For both arms, the examination was completed immediately after repetitive use over time, and the examiner found that the Veteran was significantly limited in functional ability with repeated use over time due to pain. In describing the limitations in terms of range of motion, the examiner provided the same results that had been obtained on testing. The Veteran displayed reduced muscle strength, 4/5, at forward flexion and abduction in both shoulders. However, no muscle atrophy was noted. A rotator cuff condition was suspected in both right and left shoulders. Specifically, the Hawkins’ Impingement Test and the empty-can test were positive for both shoulders. Right and left shoulder instability, dislocation, or labral pathology were suspected. A history of mechanical symptoms was noted on the left side. A history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint was noted for both shoulders, with frequency identified as “infrequent.” The examiner found that a clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected, noting that the Veteran had mild AC joint arthritis in both shoulders. However, the condition was not found the affect the range of motion, and there was not tenderness on palpation of the joint. The Cross-body adduction test was negative. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus in either shoulder. Malunion of the humerus with moderate or marked deformity in the shoulders was not noted. The examiner found that the Veteran’s shoulder disabilities would impact his ability to perform occupational tasks, noting that the Veteran reported increased shoulder pain with lifting and shoulder movement. The examiner noted that the mild bilateral AC joint osteoarthritis was a residual of the service-connected condition. Pain was evidenced on passive range of motion testing and when the joint was used in non-weight bearing. In regards to the request for a detailed description of the reported dislocations, the examiner found that the Veteran had reported that he used to dislocate his shoulder about three times a week with pain lasting 1-2 hours, but that after undergoing his bilateral shoulder surgeries in 2018, he has not experienced any shoulder dislocations. Thus, he no longer has any shoulder dislocations because they had resolved following surgery in 2018. In October 2020, the Veteran’s VA treatment records showed active and passive range of motion results for both shoulders showed 180 degrees on forward flexion, 160 degrees on abduction, T4 on internal rotation (testing not completed in degrees), and 45 degrees on external rotation. In the March 2021 Informal Hearing Presentation (IHP), the Veteran’s representative reported the Veteran’s ongoing worsening symptoms as including functional loss due to weakness, fatigability, incoordination or pain on movement; limitation of motion due to pain on use, including use during flare-ups; and occasional incapacitating attacks of pain. Limitations of Motion Right shoulder prior to August 30, 2018, and since October 1, 2018 Left shoulder prior to February 2, 2018, and since April 1, 2018 Considering the Veteran’s flexion and abduction measurements, an evaluation beyond 20 percent is not warranted for either the left or right shoulder at any time during the pendency of the appeal. The Veteran did not evidence flexion measuring below 100 degrees in the left shoulder or below 110 degrees in the right shoulder prior to his surgeries. He did not evidence abduction below 70 degrees in the left shoulder or 85 degrees in the right shoulder prior to his surgeries. These measurements showed limitation roughly at shoulder level, which is considered under the 20 percent evaluation. However, this does not more closely approximate limitation to midway between the shoulder and side. Following the Veteran’s respective surgeries, an evaluation beyond 20 percent is not warranted for either the left or right shoulder in considering limitation of motion based on flexion and abduction. During this period, the Veteran consistently evidenced both flexion and abduction results no lower than 90 percent in each shoulder, which show limitation roughly at shoulder level. Notably, the Veteran’s VA treatment records do indicate that in July 2020, he measured 45 degrees on abduction in both the left and right shoulders, which would more closely approximate limitation to midway between the shoulder and side. However, these appear to be isolated results. Even in measurements completed during the Veteran’s period of convalescence, within a month of his respective surgeries, he did not evidence less than 90 degrees on abduction. Furthermore, measurements completed in September 2020, several months after the July 2020 testing, again evidenced 90 degrees on abduction for each shoulder. Accordingly, under Diagnostic Code 5201, an evaluation in excess of 20 percent is not warranted for either the left or right shoulder. Recurrent Dislocations Right shoulder prior to August 30, 2018, and since October 1, 2018 Left shoulder prior to February 2, 2018, and since April 1, 2018 Code 5202 evaluates impairment of the humerus. At the outset, the Veteran does not demonstrate malunion of the humerus on either shoulder such as to warrant evaluation on that basis, nor does he evidence loss of head of (flail shoulder), nonunion of (false flail joint), or fibrous union of the humerus, to warrant a 40 percent evaluation in the left shoulder or a 50 percent evaluation in the right shoulder under this Code. However, his medical records consistently include reports of instability, subluxation, and dislocation of the shoulders. Although not specifically evidenced on the March 2011 VA shoulder examination, the Veteran continued to complain of dislocations beginning in September 2011, through the time of his respective shoulder surgeries in 2018. Not only does the Veteran provide lay statements reporting these complaints, but such are consistently reported and discussed in his medical treatment records and are found to be associated with guarding. Although there is some speculation in the records as to whether the Veteran is experiencing “true dislocations” based on his ability to self-reduce the shoulder, the Veteran will be afforded the benefit of the doubt in classifying these episodes as dislocations for the purpose of the rating criteria. Regarding evaluation, in the minor arm, both frequent episode and infrequent episodes, as well as guarding of all arm movements or guarding movement only at shoulder level, warrant a 20 percent evaluation. Accordingly, the Veteran will be afforded a separate 20 percent evaluation, and no higher, in the left shoulder under Diagnostic Code 5202 prior to February 2, 2018, the effective date of his temporary total evaluation for the left shoulder. For the right, major shoulder, however, a 20 percent evaluation is warranted for infrequent episodes and guarding of all arm movements, and a 30 percent evaluation is warranted for frequent episodes and guarding movement only at shoulder level. In the August 2016 shoulder examination, episodes of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint were described as “infrequent.” However, in the June 2017 VA shoulder examination, such episodes are described as “frequent.” Accordingly, for the right shoulder, a 20 percent evaluation, and no higher, is warranted prior to June 30, 2017, and a 30 percent evaluation is warranted from June 30, 2017 under Diagnostic Code 5202 until the Veteran’s temporary 100 percent evaluation, beginning August 31, 2018. In considering 5202, the Board finds that a no compensable evaluation is warranted under this Code since the Veteran’s respective surgeries. Although the Veteran did report some continued “popping” of the shoulders in April 2020 VA treatment records and during the September 2020 examination, and a history of “infrequent” recurrent dislocation episodes were noted in the September 2020 examination, the October 2020 addendum clarifies that the Veteran has not experienced episodes of dislocation since his surgeries. Specifically, this report stated that although the Veteran did previously complain of episodes of dislocations roughly 3 times a week, since his surgeries he has not had any shoulder dislocation. The examiner concluded that he no longer experiences shoulder dislocations because they have resolved following surgical intervention. Accordingly, the Veteran is not entitled to compensable evaluations under Diagnostic Code 5202 following his periods of convalescence after surgery, since April 1, 2018 in the left shoulder and October 1, 2018 in the right shoulder. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.