Citation Nr: 21028385 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-41 186 DATE: May 11, 2021 ORDER Entitlement to disability rating in excess of 10 percent for residuals of a left ankle fracture is denied. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020, and in excess of 20 percent from July 27, 2020, is denied. Entitlement to a disability rating in excess of 20 percent for impairment of the left humerus is denied. Entitlement to a disability rating in excess of 10 percent for a scar, left shoulder, status-post rotator cuff repair, distal clavicle resection is denied. FINDINGS OF FACT 1. The Veteran's left ankle disability is characterized by limitation of motion most approximate to moderate limitation. 2. The Veteran is right hand dominant; therefore, his left shoulder is his minor extremity. 3. From March 12, 2015, to July 26, 2020, the Veteran's left shoulder disability manifested as painful motion due to arthritis with no actual limitation of motion. 4. From July 27, 2020, the Veteran's left shoulder disability manifested as painful motion due to arthritis with limitation of motion. 5. The Veteran has history of infrequent episodes of recurrent dislocation of the glenohumeral joint. 6. The Veteran has one painful scar on his left shoulder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271. 2. The criteria for a rating in excess of 10 percent for left shoulder disability, from March 12, 2015, to July 26, 2020, and in excess of 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5201-5024 (2020) and DC 5003-5201 85 Fed. Reg. 76453 (Nov. 30, 2020). 3. The criteria for a rating in excess of 20 percent for impairment of the humerus, secondary to left shoulder disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5202 (2021). 4. The criteria for a rating in excess of 10 percent for a left shoulder scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to October 1979 and from November 1990 to June 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The issues of entitlement to increased ratings for residuals of left ankle fracture and left shoulder dislocations with mild arthritis were addressed and remanded for additional development by the Board in March 2020. Thereafter, an August 2020 rating decision denied an increased rating in excess of 10 percent for residuals of left ankle fracture, denied a rating in excess of 10 percent for left shoulder dislocations with mild arthritis, prior to July 27, 2020, granted a 20 percent rating for left shoulder dislocations with mild arthritis, effective from July 27, 2020, and granted a 10 percent rating for scar, left shoulder, status-post rotator cuff repair, and a 20 percent rating for impairment of the left humerus, both effective from July 27, 2020. As the additionally assigned separate ratings were assigned during the pendency of this appeal, the Board has added them as additional matters for current appellate review. The Board further notes that while the RO has indicated that the period on appeal for the issue of entitlement to a rating in excess of 10 percent for left shoulder dislocations with mild arthritis goes back to April 11, 1997, the Board's review of the record reflects that the claim on appeal only dates back to March 12, 2015. Consequently, the Board has modified the identification of this issue accordingly. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. 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. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 1. Entitlement to a rating excess of 10 percent for service-connected residuals of a left ankle fracture. The Veteran seeks a disability rating in excess of 10 percent for service-connected residuals of a left ankle fracture. The Veteran submitted a claim for an increased rating in March 2015. He was provided a VA examination in May 2015 and was denied an increased rating in June 2015. The Veteran appealed the decision to the Board. This issue returned to the Board in March 2020. The Board remanded this issue in order to provide the Veteran with an additional VA examination because of the inadequacy of the May 2015 VA examination in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 33-36 (2017). The Veteran's left ankle fracture is rated under DC 5010-5271. 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 assigned rating; the additional code is shown after the hyphen. Pursuant to DC 5010, arthritis due to trauma substantiated by x-ray findings is rated as degenerative arthritis rated based on limitation of motion under the appropriate DC for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003, 5010. Prior to February 7, 2021, a 10 percent rating was assigned for moderate limitation of motion, and a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle includes plantar flexion from 0 degrees to 45 degrees and dorsiflexion (extension) from 0 degrees to 20 degrees. 38 C.F.R. § 4.71a, Plate II. Under the rating criteria in effect from February 7, 2021, a 10 percent rating is warranted with moderate limited motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). 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, DC 5271). A 20 percent rating is warranted for marked limitation (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Id. The Veteran was provided a VA examination in May 2015. Although inadequate, due to the examiner not attempting to ascertain certain information from all relevant sources to describe the Veteran's left ankle functional limitation in terms of lost range of motion, initial range of motion (ROM) testing was done. Sharp, 29 Vet. App. at 33-36. On ROM testing, dorsiflexion was to 20 degrees (normal is 0 to 20 degrees) and plantar flexion was to 45 degrees (normal is 0 to 45 degrees). The examiner noted pain, but it did not result in functional loss. The examiner noted the Veteran was able to perform repetitive use after three repetitions, and stated they were unable to duplicate/reproduce any situation to produce a flare-up. The examiner found mid-left ankle joint tenderness. There was no evidence of ankylosis, no loss of strength, no instability or dislocation, and the Veteran occasionally used an ankle brace. Imaging studies did not reveal degenerative or traumatic arthritis. Mild pain was noted during podiatry assessments in August 2013 and October 2013. Between January 2014 and May 2016, podiatry notes from Dr. J. reported the Veteran's ankle ROM to be normal with instances of tenderness on palpating in January 2014. A May 2017 podiatry outpatient note reported his ROM to be normal. The Veteran was provided an ankle examination through the VA in June 2016. First, the examiner notes the Veteran's medical records discuss his ankle disability, however, he further noted there are no significant findings by podiatry. The examiner marked that the Veteran was employed full time of the State of Montana. The Veteran did not report flare-ups. On ROM testing, the examiner noted it to be all normal with dorsiflexion to 20 degrees (normal is 0 to 20 degrees) and plantar flexion to 45 degrees (normal is 0 to 45 degrees). The examiner noted there was no pain noted on exam, no pain with weight-bearing, no objective evidence of localized tenderness or pain on palpation. The examiner provided that the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. After repetitive use over time, there was no evidence of pain, weakness, fatigability, or incoordination limiting functional ability. Muscle strength testing was normal and there was no evidence of ankylosis. The Veteran did not report using any assistive devices. Diagnostic imaging was conducted and there was no evidence of degenerative or traumatic arthritis. Under remarks, first, the examiner stated the ankle looked normal with a full range of motion and no report of pain or facial expressions. Second, the examiner noted a normal Achilles tendon, no evidence of edema, instability, swelling, redness, heat, abnormal movement, guarding, deformity, or weakness. Finally, the Veteran discussed a "lump" on the sole of his foot. The examiner found no evidence of a bump nor could the Veteran find it. Concluding, the examiner noted the Veteran's ankle to be normal. An April 2019 podiatry report noted orthotic boots assist his left ankle disability and Achilles tendon issues. The podiatrist also noted the Veteran's baseline symptoms remain unchanged and reason for his visit was to repair/replace worn out items. ROM was found to be normal. The Veteran had an examination arranged through VA in July 2020. The examiner diagnosed the Veteran with tendonitis and residuals of left ankle fracture. The Veteran described his symptoms to include pain in his Achilles tendon, pain when walking downstairs, on hills, and pain and instability during hikes. The Veteran said that he does not run and takes stairs sideways. On ROM testing, dorsiflexion was to 10 degrees and plantar flexion was to 35 degrees. Pain was noted on examination and causes functional loss. Both ranges of motion, dorsiflexion and plantar flexion, exhibited pain. The examiner noted there is no additional functional loss of ROM after three repetitions and estimated that after repetitive use over time and during a flare-up, dorsiflexion decreases to 5 degrees and plantar flexion decreases to 25 degrees. Strength testing was normal. The examiner noted there are no additional contributing factors. There was no evidence of ankylosis, instability, or dislocation. The Veteran's Achilles tendonitis exhibited aching from mid-tendon down to insertion. The Veteran noted he does not use any assistive devices. Based on the evidence, the Board finds an increased rating in excess of 10 percent for residuals of a left ankle fracture is not warranted. The Veteran's current 10 percent disability rating under DC 5010-5271 considers limitation of motion of the left ankle. To warrant a 20 percent rating under the criteria in effect prior to February 7, 2021, there must be marked limitation of motion. Under the criteria in effect from February 21, 2021, there must be marked limitation of motion, which is defined as less than 5 degrees dorsiflexion and less than 10 degrees plantar flexion. At the July 2020 examination, the Veteran's ROM was 10 and 35 degrees, respectively. This is not consistent with marked limitation of motion under the old and new rating criteria. See 38 C.F.R. § 4.71a, DC 5271 and 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). During his July 2020 VA examination, it was noted that after repetitions and during a flare-up, his ROM decreased to 5 and 25 degrees, respectively, and even this limitation is not enough for a higher compensable rating under the new criteria. Previous VA examinations in May 2015 and June 2016 noted his ROM to be normal after repetitions and during flare-ups. The currently assigned 10 percent evaluations for his left ankle contemplate limitations after repetitions and during flare-ups. Therefore, the Veteran's 10 percent rating is most approximate to his limitation of motion. Additionally, the Board has considered other applicable rating codes under which to rate the separate symptoms by analogy. The medical evidence does not demonstrate that he suffers from ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus, or that he had an astragalectomy. 38 C.F.R. § 4.71a, DCs 5272, 5273, 5274, 5284. Yancy v. McDonald, 27 Vet. App. 484 (2016). Further, there is no evidence of degenerative or traumatic arthritis. Therefore, a separate rating under DC 5003 is not warranted and it would evaluate the same limitation of motion currently contemplated by his current rating under DC 5010-5271. This assignment would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Accordingly, the Board finds separate ratings are not warranted. In sum, the preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's residuals of a left ankle fracture. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020. 3. Entitlement to a disability rating in excess of 20 percent for left shoulder dislocations with mild arthritis from July 27, 2020. 4. Entitlement to a disability rating in excess of 20 percent for impairment of the left humerus. To promote efficiency, the issues of entitlement to an increased rating for residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020, entitlement to an increased rating in excess of 20 percent for left shoulder dislocations with mild arthritis after July 26, 2020, and entitlement to a disability rating in excess of 20 percent for impairment of the left humerus will be addressed together. The Veteran seeks an increased rating in excess of 10 percent for service-connected residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020, and in excess of 20 percent thereafter. Additionally, the Veteran seeks an increased rating in excess of 10 percent for left shoulder scar. By way of history, the Veteran was originally assigned a noncompensable rating for his left shoulder disability with an effective date of May 1, 1989. This rating was increased to 10 percent in a July 1999 rating decision with an effective date of April 11, 1997. The Veteran was denied an increased rating in excess of 10 percent for residuals of left shoulder separation with scar in a July 2013 decision. The Veteran did not appeal that decision therefore, it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In March 2015, the Veteran submitted a claim for an increased rating. His claim was denied in a June 2015 rating decision by the RO. This issue came before the Board in March 2020. First, the Board found the May 2015 VA examiner did not attempt to ascertain certain information from all relevant sources to describe the Veteran's left shoulder functional limitation in terms of lost range of motion. Sharp, 29 Vet. App. at 33-36. Second, the Board found the Veteran was not questioned by the examiner regarding the severity, frequency, and duration of his functional impairment with repeated use over time. Third, the Veteran, in his notice of disagreement, referenced private treatment records that discussed the severity of his left shoulder disability. The Veteran was afforded an examination in July 2020. In an August 2020 rating decision, the Veteran was denied an increased rating in excess of 10 percent for left shoulder disability from March 12, 2015, through July 26, 2020. He was granted an increased rating to 20 percent for left shoulder dislocations with mild arthritis (previously rated as residuals of left shoulder separation to include degenerative arthritis (minor) with scar), a separate 20 percent rating for impairment of the humerus, and a separate 10 percent evaluation for scar, left shoulder, status post-rotator cuff repair, distal clavicle resection, from July 27, 2020. DC 5003 directs that degenerative arthritis be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved (here, DC 5201). See 38 C.F.R. § 4.71a. Shoulder disabilities are rated under 38 C.F.R. § 4.71a, DCs 5200-5203. Ratings assigned under DC 5201 pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. As the Veteran in the case at hand is right-handed, his service-connected left shoulder condition affects his minor extremity and will be evaluated accordingly. DC 5200 concerns ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece). DC 5200 provides that ankylosis of the scapulohumeral articulation of the major upper extremity is assigned an evaluation of 30 percent when it is favorable with abduction to 60 degrees and able to reach mouth and head. An evaluation of 40 percent is assigned with intermediate ankylosis (between favorable and unfavorable); and an evaluation of 50 percent is assigned when it is unfavorable with abduction limited to 25 degrees from side. Minor arm evaluations for each of those criteria are 10 percent less than the major arm evaluations. Id. Under DC 5201, ratings vary depending on whether the affected arm is the dominant or nondominant extremity. Under the rating criteria in effect prior to February 7, 2021, a 20 percent disability evaluation was warranted for limitation of motion of the minor arm at shoulder level, or for a minor arm with limitation of motion to midway between the side and shoulder level. A 30 percent evaluation is for a minor arm with limitation of motion to 25 degrees from the side. Id. After February 7, 2021, under DC 5201, a 20 percent evaluation is warranted for limitation of motion of arm at the shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent is warranted for limitation of motion to midway of the minor arm between side and shoulder level (flexion and/or abduction limited to 45 degrees). 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, DC 5201). Under DC 5202, malunion of the minor humerus with either a moderate or a marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5202. A 20 percent evaluation is also warranted for recurrent dislocation of the minor humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and also for frequent episodes and guarding of all arm movements. Id. Impairment of the minor humerus is rated at 40 percent if there is a fibrous union, 50 percent if there is nonunion or false flail joint, and 70 percent if there is loss the head of humerus with flail shoulder. Id. After February 7, 2021, a 20 percent disability is warranted for the minor shoulder with recurrent dislocation of a scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees). 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, DC 5202). DC 5203 provides a 10 percent evaluation for malunion of the clavicle or scapula or nonunion without loose movement. 38 C.F.R. § 4.71, DC 5203. A 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. Major and minor arms are not evaluated differently under this diagnostic code. 85 Fed. Reg. 76453, 76463. DC 5024 compensates for tenosynovitis. Under that diagnostic code, a disability (with the exception of gout) is to be rated on limitation of motion of the affected joint, as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. First, the Board will address entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020. The Veteran was afforded a VA examination in May 2015. The examiner noted the Veteran's left shoulder range of motion to be all normal. Flexion was to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and external rotation to 90 degrees. The VA examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions without any additional functional loss. The examiner was unable to opine without speculation on whether pain, weakness, fatigability, or incoordination significantly limits functional ability. The examiner also noted there was evidence of a left shoulder rotator cuff condition. The examiner found no evidence of ankylosis, instability, dislocation, labral pathology, clavicle, scapula, acromioclavicular joint and sternoclavicular joint conditions, or conditions or impairments of the humerus. The Veteran reported that he underwent arthroscopic surgery in 1989 and reported residuals of a scar, pain, and arthritis. Diagnostic testing was conducted, and degenerative arthritis was found in the left shoulder. The examiner stated that after a review of the Veteran's files, the record does not indicate objective clinical evidence of associated functional loss. As noted in the previous Board decision, the May 2015 VA examination is of little probative value, as the examiner did not comply with the Court's holding Sharp when questions regarding the severity, frequency, and duration of his functional limitation with repeated use over time. 29 Vet. App. 36 (2017). The Veteran's medical records are consistent with the Veteran's statements regarding pain. A March 2016 primary care note states the Veteran's shoulder has been aching for a few months and there is pain with movement and lifting. He was referred to physical therapy. However, in June 2016, a physical therapy noted the Veteran's shoulder "is back to baseline and is not a concern now." In April 2018, a primary care note indicated the Veteran experiences pain that varies from "3-4" and "9-10" with flareups, which he notes were "unbearable." After a review of the record, the Board finds an increased rating based on limitation of motion in excess of 10 percent from March 12, 2015, to July 26, 2020, is not warranted. The Veteran's medical records do not contain objective measurements of ROM or other symptoms of the left shoulder that warrant a higher rating than indicated by the findings of the VA examiners. The Veteran's subjective reports of aches, pain with movement and lifting, discussion of his symptoms returning to its baseline, and objective reports of no reduction in ROM during his May 2015 VA examination are already contemplated by his currently assigned 10 percent rating. Simply put, there is no additional uncompensated compensable limitation of motion that can provide the basis for a higher rating. Therefore, a higher rating under DeLuca is not warranted. DeLuca, 8 Vet. App. 204-07. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the Veteran's May 2015 VA examination is inadequate due to lack of compliance with Sharp, general ROM testing for flexion, abduction, external rotation, and internal rotation were noted to be all normal with no loss in ROM. The Veteran's contemporaneous medical records are also consistent with the examiner's findings and there is no indication from the record that the Veteran would qualify for a higher rating. To warrant a 20 percent evaluation under DC 5201-5024, the evidence must show limitation of motion of arm at the shoulder level (flexion and/or abduction limited to 90 degrees). The Veteran's range of motion limitation does not rise to the severity necessary to warrant an increased rating. Therefore, under DeLuca and DC 5201-5024, the Board finds an increased rating in excess of 10 percent for residuals of a left (minor) shoulder separation with mild arthritis from March 12, 2015, to July 26, 2020, is not warranted. Second, the Board will address entitlement an increased rating in excess of 20 percent for left shoulder dislocations with mild arthritis after July 26, 2020. Here, the Board notes the Veteran is rated under DC 5003-5201. Pursuant to the March 2020 Board remand directives, an additional VA examination was provided in July 2020. Here, the exam diagnosed the Veteran with glenohumeral joint osteoarthritis and residuals of shoulder dislocation. The Veteran reported the severity of his disability has remained the same. He experiences left shoulder pain daily, and he reported if he moves his arm the wrong way, he feels pain and stiffness. He states he is unable to swing a golf club, hold and shoot a bow, and sleep is disrupted. On ROM testing for the left shoulder, flexion 0 to 110 degrees, abduction 0 to 110 degrees, external rotation 0 to 40 degrees, and lateral rotation 0 to 30 degrees. Pain was noted on examination for each movement. After three repetitions and repetitive use over time, the examiner noted there was no additional loss in ROM. The examination was not conducted during a flare-up; however, the examiner noted the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner noted pain, weakness, fatiguability, and incoordination did not limit functional ability with repetitive use and flare-ups, including there being no reduction in the Veteran's range of motion. Muscle strength testing was normal for his left shoulder. There was no evidence of ankylosis or rotator cuff syndrome, and there was evidence of infrequent episodes of recurrent dislocation and guarding. The examiner found evidence of an acromioclavicular (AC) joint condition. There is no evidence the Veteran has loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. In the remarks, the examiner noted the Veteran was "carefully questioned about repetitive use or flareups." The examiner noted there is no stated worsening with certain activities or repetitive use. The Board finds an increased rating in excess of 20 percent for left shoulder dislocations with mild arthritis under DC 5003-5201 after July 26, 2020, is not warranted. The Veteran experiences painful motion of the shoulder and x-rays shows evidence of degenerative arthritis to include glenohumeral arthritis, which the examiner noted is a progression of his residuals. To warrant a 30 percent rating, for a minor arm, flexion and/or abduction must be limited to 25 degrees from the side. The Veteran's limitation of motion is not severe enough to warrant a higher rating because ROM testing in May 2015 was found to be normal and in July 2020 ROM testing showed flexion to 110 degrees, abduction to 110 degrees, external rotation to 40 degrees, and lateral rotation to 30 degrees. Once again, there is simply no additional uncompensated compensable limitation of motion that can provide the basis for an even higher rating for this period. Finally, the Board will address entitlement to an increased rating in excess of 20 percent for impairment of the humerus, secondary to his service-connected left shoulder. After the Veteran's July 2020 VA examination, the RO assigned a separate 20 percent rating under DC 5003-5202 for impairment of the humerus with an effective date of July 26, 2020. The RO based this rating on recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. Per the July 2020 VA examination, the examiner found a history of infrequent episodes of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint in the left shoulder to include guarding of movement only at shoulder level. Under the previous regulations prior to February 7, 2021, a 20 percent evaluation is warranted for recurrent dislocation of the minor humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level and for frequent episodes and guarding of all arm movements. See 38 C.F.R. § 4.71a, DC 5202 (2020). Under the recent changes to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, a 20 percent disability is warranted for minor when recurrent dislocation of a scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5202). As such, under both regulations, the Board finds an increased rating in excess of 20 percent is not warranted. Moreover, there is no showing of fibrous union, nonunion (false flail joint), or loss of head of the humerus (flail shoulder). The Veteran's history of infrequent episodes of recurrent dislocation is most approximate to his current 20 percent rating. Therefore, an increased rating is not warranted. 5. Entitlement to a disability rating in excess of 10 percent for scar, left shoulder, status post-rotator cuff repair, distal clavicle resection. The Veteran seeks an increased rating for his left should scar. After the July 2020 VA examination, he was granted a separate disability rating for his painful left shoulder scar. The Veteran is currently rated under DC 7804 with a 10 percent rating effective July 27, 2020. Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or four scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. The Veteran underwent a VA examination to assess the number and severity of the Veteran's scars. Here, the examiner found one painful scar on his left shoulder. Applying pressure over the scar causes pain. The left shoulder scar is measured at 13 cm x 0.54 cm, with an approximate total area of 6.5 cm squared. It is tender to palpation. There is no evidence of unstable scars resulting in frequent loss of covering of skin or scars due to burns. The Veteran has one scar located on his left shoulder that is painful; as such, he meets the criteria for a schedular rating of 10 percent under DC 7804. Therefore, the Board finds the Veteran's current 10 percent rating most approximate to the severity of his scars. To warrant an increased rating of 20 percent for left shoulder scar, there must be evidence of three or four scars that are unstable or painful. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.118, DC 7804. Although the Veteran did not submit a formal claim for TDIU, a Rice TDIU claim can be considered part and parcel of the Veteran's increased rating claim for left ankle and left shoulder disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability). Considering the Board's duty to review the historical records, the Board finds that a Rice TDIU claim has not been reasonably raised as part of his claim for his increased rating claim. The Veteran's June 2016 VA ankle examination noted the Veteran was employed full time by the State of Montana, Department of Transportation. The Veteran reported his position is sedentary. During his August 2020 VA examinations, with regard to his ankle disability, he is unable to walk further than a mile, no running, or standing longer than 30-60 minutes. With regard to his shoulder, the examiner noted Veteran is unable to perform strenuous activities with outstretched arms. Further, the Veteran has not raised the issue of unemployability throughout the pendency of the appeal. Consequently, the Board finds there is no implicit claim for TDIU and no action is warranted. Rice, 22 Vet. App. at 453. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.