Citation Nr: 21030756 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 10-37 232 DATE: May 19, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to an initial disability rating of 40 percent for a right shoulder disability is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in her favor, the Veteran's current cervical spine disability was incurred during a period of active service. 2. The Veteran's right shoulder disability is manifested by limitation of motion to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for entitlement to an initial disability rating of 40 percent for a right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserves from June 1976 to November 2004, with parties of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). A Department of Veterans Affairs (VA) Regional Office (RO) generated a memorandum listing her specific periods of ACDUTRA and INACDUTRA in a February 2015 memorandum. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and July 2016 rating decisions. In August 2013, the Veteran testified before the undersigned at a hearing. A transcript of her hearing testimony has been associated with the claims file. By way of procedural history, the Board denied the Veteran's claim for service connection for the cervical spine disability in May 2016 and September 2017 decisions. These decisions were subsequently vacated by the Court of Appeals for Veterans Claims (Court) in February 2017 and September 2019, respectively. In November 2020, the Board remanded the claim for the RO to provide the Veteran with a VA examination and for additional development to be undertaken. With respect to the claim for an increased initial disability rating for her right shoulder disability, service connection for a right shoulder disability was granted in a July 2016 rating decision, which assigned a 20 percent disability rating from October 31, 2008. The Board denied her claim for a rating in excess of 20 percent in an April 2019 decision. She appealed this decision to the Court, which vacated the Board's decision in an April 2020 Joint Motion for Partial Remand (JMPR). The parties agreed in the JMPR that the Board had failed to obtain a VA examination compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017), had not provided an adequate statement of reasons and bases for rejecting an April 2018 VA treatment record, and had not addressed whether the Veteran had opted into the Rapid Appeals Modernization Program (RAMP). In its November 2020 decision, the Board indicated that the Veteran had not submitted the appropriate form to elect to participate in RAMP and remanded her claim for additional evidentiary development. In February 2021, the RO issued a supplemental statement of the case denying the claim for service connection for the cervical spine disability and denying an increased rating for the right shoulder disability. The claims now return to the Board once more. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Service Connection Generally, the Veteran contends that her cervical spine disability was either caused or aggravated by a period of ACDUTRA or INACDUTRA. To that end, she and her representative have argued that her cervical spinal disability was aggravated by her active service, resulting in a medical discharge due, in part, to cervical spine issues. The Veteran has also testified that she could have injured her neck during a skills qualification test in 1981. Alternatively, they have argued that her cervical spine disability had its onset during a period of ACDUTRA or INACDUTRA, as evidenced by November 2001 private treatment records describing the onset of her neck pain and the Veteran's statements regarding neck pain caused by wearing her helmet and load-bearing equipment. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Relevantly here, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101, 106, 1131. With respect to service in the Reserves, ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes. Id. ACDUTRA and INACDUTRA also include authorized travel to or from such duty or service. 38 U.S.C. § 106(d). Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Nonetheless, although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, veterans are generally not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence clearly shows that the Veteran has a current cervical spine disability. As such, the first element of service connection has been met. To that end, the evidence from between June 1976 and November 2004 reflects various complaints of cervical spine pain and associated symptoms. On review, the Board finds that, when resolving reasonable doubt in her favor, her cervical spine disability at least as likely as not was caused by her active service. At the outset, the Board acknowledges that the Veteran received a permanent physical profile in 1997 for a low back disability, which limited her training activities from that point. Although the physical profile would have prevented her from performing the types of physical activities that might typically result in the incurrence of a neck injury, the profile did not entirely restrict her training activities. For instance, the 1997 physical profile prevented her from performing various physical training activities but permitted her to wear a helmet and load-bearing equipment. She continued to attend regular ACDUTRA training until June 2000. A November 2000 private treatment record indicates that she complained of neck pain and numbness in both arms. Imaging studies revealed bulging annulus with slight indentation of the ventral surface of the thecal sac at C4-C5 and C5-C6. A year later, a November 2001 note from Dr. S.S. indicated that the Veteran had been seeking treatment with him for cervical and low back pain. She had complained of a history of dizziness and lightheadedness associated with movement and pain in her neck for approximately one and a half years (i.e., since sometime in early to mid-2000). Dr. S.S.'s diagnosed cervicogenic dizziness, secondary to spasms of the cervical region. She continued seeking treatment for her cervical pain with Dr. S.S. A December 2005 disability determination from the Social Security Administration (SSA) provides additional context with respect to the onset and nature of her cervical spine disability. For instance, in addition to describing her November 2000 imaging studies and treatments with Dr. S.S., the SSA disability determination indicates that she also sought treatment with Dr. P.M. in November 2002 due to complaints of pain in her neck, among other ailments. A cervical spine x-ray performed in August 2003 showed degenerative spur formation at multiple levels, as well as narrowing at C4-5 and C5-6. The SSA disability determination also noted that Dr. C.R. had treated her since at least 2003 for her various impairments, including the cervical spine problems. Last, the SSA disability determination reflects that, as of December 2005, she had received various treatment due to her cervical spine impairments without relief. At a January 2004 military medical examination, she once more reported dizziness, fainting spells, and frequent or severe headaches, which she indicated were due to her back and cervical spine problems. In an accompanying report of medical examination, an examiner noted restricted movement of the cervical spine, tenderness over the cervical spine, and loss of cervical lordotic curvature. In the portion of the examination form reflecting defects and diagnoses, the examiner wrote "bulging discs of cervical spine." The examiner also indicated that she had a history of osteopenia, spinal stenosis, and bulging discs of the cervical spine with chronic pain and limited range of movements. Due to her bulging discs, the examiner indicated that she could not wear a helmet, carry or fire a rifle, or perform physical training in formation. Accordingly, in a February 2004 memorandum for the unit commander/command surgeon, she was deemed ineligible for retention and referred to a physical evaluation board (PEB). A PEB medical record signed on March 9, 2004, indicates that she was ultimately deemed medically disqualified for retention due to various conditions, including a herniated nucleus pulposus (HNP) of the lumbar and cervical spine, non-radicular pain, and osteoarthritis. Symptoms included significant limitation of activity. She was unable to walk more than four miles or lift things, wear a helmet or a weapon, run, or do sit-ups or push-ups. The medical record also noted MRI results showing bulging discs at C4-5 and C5-6. The PEB physician noted that since 1997, her functional restrictions had "clearly" worsened. In April 2004, she reported neck pain at a medical appointment with Dr. S.K. and was diagnosed with cervical radiculopathy, cervical sprain/strain, discogenic pain, and degenerative disc disease. In June and July 2004, she had steroid injections into C5-C6 as a result of her neck pain. Ultimately, the Veteran was medically discharged from service in the Reserves in November 2004. In August 2013, she testified that wearing load-bearing equipment during ACDUTRA and INACDUTRA had worsened her neck pain, caused headaches, and precipitated her formal diagnosis of bulging discs. She also testified that she sought treatment from a chiropractor due to her neck pain, and that when he touched her neck, she fainted due to the pain. This appointment ultimately resulted in obtaining the imaging studies that diagnosed the bulging discs in her neck in November 2000. The Veteran's representative has also asserted that her neck pain and its associated symptoms had their onset, at a minimum, in approximately April or May of 2000, a time when she was still performing INACDUTRA according to the February 2015 setting forth her training dates. Moreover, between March and May 2000, the timeframe in which the Veteran reported to Dr. S.S. that her neck pain, headaches, and dizziness began, she drilled 16 times. The February 2015 memorandum prepared by VA confirms that she attended two drills each on March 4, 2000, March 5, 2000, March 25, 2000, March 26, 2000, April 1, 2000, April 1, 2000, May 6, 2000, and May 7, 2000. Having reviewed the evidence from the relevant timeframe, the exact onset of the Veteran's neck pain is somewhat unclear. Affording her the benefit of the doubt, however, the Board finds that it is at least as likely as not she injured her neck during a period of ACDUTRA or INACDUTRA service. To that end, her November 2001 statements to Dr. S.S. regarding the onset of her neck pain are exceptionally trustworthy, as they were made for the purpose of medical diagnosis and prior to filing the instant claim. As such, these statements regarding in-service incurrence of an injury or disease are highly probative. See White v. Illinois, 502 U.S. 346 (1992). Moreover, these statements are also consistent with her November 2000 imaging studies and her August 2013 hearing testimony, which indicates that wearing her helmet and load-bearing equipment caused neck pain, which worsened over time. Having found that the Veteran at least as likely as not injured her neck during a period of active service, the chief question for the Board is thus whether her injury is causally related to her current cervical spine disability. As set forth above, the Board previously remanded this matter to obtain a VA examination with respect to the etiology of her cervical spine disability. In January 2021, a VA examiner rendered an opinion. Ultimately, however, the VA examiner opined that the Veteran's disability was less likely than not caused by an in-service injury, event, or illness, or aggravated by a period of ACDUTRA or INACDUTRA. As rationale, the VA examiner stated that since 1981 the Veteran reported on several military physicals that she did not have any cervical spine complaints, as well as that she had not reported symptoms like headaches in the accompanying report of medical history forms. The examiner also indicated that the Veteran's 1997 permanent profile was based on a lumbar spine condition, not a cervical spine condition, and that there was no contemporaneous medical evidence of a cervical spine or headache condition until November 2000, several years after 1981. The examiner also acknowledged that she reported neck pain at her November 2001 consultation with Dr. S., but that this treatment record did not describe any previous trauma. He ultimately opined that her cervical spine degenerative disc disease was an age-related finding and that it was not aggravated beyond its natural progression by brief periods of active service. The Board finds that the January 2021 VA examiner's inadequate for various reasons. First, the VA examiner focused on whether the Veteran had injured her neck during a 1981 skills qualification test, as opposed to whether she had injured her neck at any other point during service. Although he pointed out that her service treatment records did not reflect complaints of neck pain prior to November 2000, he also acknowledged that she began pursuing treatment for neck pain following that point. It is unclear why the VA examiner did not address her representative's contentions that she could have injured her neck at some point after 1981, such as during drills between March and May 2000. Nonetheless, a medical opinion that does not address all relevant evidence or all raised theories of entitlement is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition, he failed to address the Veteran's statements to Dr. S.S. in November 2001, which indicated that her pain had its onset approximately one and a half years ago. Moreover, he failed to provide any rationale to explain why he concluded that her degenerative disc disease was age-related or not aggravated by periods of active service. As such, the January 2021 VA examiner's opinion is entitled to little, if any, probative weight. There is ultimately no probative medical opinion of record regarding the etiology of the Veteran's current cervical spine disability. However, medical evidence is not categorically required to satisfy the nexus element of the service connection framework. Davidson v. Shinseki, 481 F.3d 1313 (Fed. Cir. 2009). Here, the evidence indicates that the Veteran reported cervical spine pain that at least as likely as not had its onset during periods of active service, such as her periods of training between March and May 2000. Additionally, the evidence indicates that she has been receiving treatment for neck pain continuously since that time. Resolving all reasonable doubt in her favor, the record indicates that her current cervical spine disability had its onset during a period of active service. Taken with the most competent, credible, and probative evidence of record, the Board finds that the criteria for service connection have been met and the claim must be granted. Increased Rating Essentially, the Veteran contends that she is entitled to a higher rating for her service-connected right shoulder disability. She asserts that her impairment is more severe than the assigned 20 percent rating reflects. As her claim arises from an initial rating determination, the appeal period for consideration in this matter begins on October 31, 2008, the effective date of the award for service connection for her right shoulder disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected right shoulder disability in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. Id. The Veteran's right shoulder disability has been rated by under diagnostic code 5003-5201, for degenerative arthritis manifested by limitation of motion of the arm. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. These provisions are essentially unchanged by the amendments to the regulations effective February 7, 2021. Prior to the regulatory change, diagnostic code 5201 provided criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level. Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side. Id. As of February 7, 2021, under the amended criteria, diagnostic code 5201 provides criteria for limitation of motion of the arm. A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level. 38 C.F.R. § 4.71a. A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). Id. A 40 percent evaluation, the maximum available, is warranted for the major arm when flexion and/or abduction is limited to 25 degrees from the side. Id. Here, the record indicates that the Veteran is right-handed. As such, the service-connected right shoulder disability involves the major extremity in this case. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. Before determining the appropriate disability ratings applicable here, the Board will first review the available evidence of record regarding the severity of her right shoulder disability. Although generated three years prior to the beginning of the relevant timeframe on appeal, records connected to the Veteran's December 2005 SSA disability determination indicate that she was unable to lift things. March 2006 records of treatment with Dr. S.K. also reflect right shoulder pain that was worsening and lasted all day. Additionally, July 2008 treatment record from Dr. S.K. indicate that she had reported shoulder pain and difficulty with pushing, pulling, and lifting. Subsequent records indicate that the Veteran's right shoulder disability has continued to cause pain and limit her range of motion in her shoulder. For instance, at a July 2016 VA examination for her right shoulder disability, the Veteran rated her shoulder pain at 7/10 and indicated her pain was aggravated by lifting or repetitive use. She also reported that her pain was relieved by resting and medication, and that her private physician had prescribed anti-inflammatory medicines and muscle relaxants for her shoulder and back disabilities. She also reported flare-ups that would last for a month with "horrible" pain that stopped her from cooking or performing other simple tasks. She reported that she had flares most months. On examination, flexion and abduction were measured at 120 degrees. Range of motion itself contributed to functional loss by decreasing overhead and crossbody motions. Pain was noted on all range of motion testing, although the examiner did not specify at which point pain began. Confusingly, the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or flare-ups, because there was no scientific way to measure this. The examiner also remarked that her "mild arthritis" could limit her from "excessive heavy lifting or repetitive overhead reaching" In an April 2018 VA treatment record, the Veteran reported to her primary care provider that her right shoulder had worsened after years of intermittent pain, and that it was now in pain on a daily basis. She described sharp, shooting pains and limitations on her range of motion. She rated her shoulder pain at 10/10 and stated that her chronic pain was growing worse. Her usual pain level without medications was 10/10, although her Naproxen helped to bring her pain levels down to 5/10. The treatment provider noted that she described the pain as aching and the frequency as "all the time." She could not do any internal rotation or overhead movements of the shoulder, while abduction was limited to only 30 degrees. She had "very limited flexion and extension" and was unable to perform impingement tests due to pain. Shortly thereafter, the Veteran underwent another VA examination in August 2018. She once more reported flare-ups of her right shoulder. On range of motion testing, flexion was to 80 degrees, while abduction was to 70 degrees. Pain was noted on all range of motion testing and the examiner indicated that it caused functional loss, but the examiner did not indicate at what point the pain began. Like the July 2016 VA examiner, the August 2018 VA examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups or after repetitive use over time, although the VA examiner noted that the Veteran was in "significant pain with single [range of motion]." The right shoulder disability caused moderate to significant pain with range of motion, lifting, and carrying. In the remarks portion of the examination report, the VA examiner stated that measurements were the same on active and passive range of motion testing. In an April 2019 VA treatment record, the range of motion in her right shoulder was decreased on all planes, although the exact measurements in degrees were not recorded. Her VA treatment provider indicated that she had deferred a mammogram until the pain in her shoulder was managed because she could not lift her arm up to do the test. Her pain was rated at 9/10, although she later reevaluated the pain at 5/10 during the same visit. She requested a sling for her right arm, which she was holding limply and refused to move. In a subsequent May 2019 VA treatment record, she reported to the emergency the room and the interventional pain clinic to follow up on treating the pain in her right arm. The pain had been worsening and was described as continuous, throbbing, sometimes sharp, and rated at 8 or 9/10. She was on naproxen and methocarbamol. Range of motion was reduced due to pain. Likewise, she reported pain in her right shoulder, which she indicated was worsening, in September 2019. Thereafter, she underwent an additional VA examination in January 2021. She explained that the pain in her right shoulder prevented her moving her right arm and that her strength was diminished. She also reported that she used baclofen and topical lidocaine. The examiner indicated that she did not report any flare-ups of her shoulder or arm. On range of motion testing, flexion and abduction were to 60 degrees. The pain itself caused less movement on all range of motion testing, although the examiner did not indicate at what point the pain began. The examiner indicated that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability with repeated use over time or during flare-ups, although he noted that she had difficulty with repetitive motions involving lifting her arms above shoulder height. In the remarks portion of the examination, the VA examiner indicated that passive non-weight-bearing range of motion testing, passive weight-bearing range of motion testing, and active weight-bearing range of motion testing were not performed because of the potential to cause unwarranted pain or discomfort. Having carefully reviewed the evidence of record, the Board finds that the Veteran's right shoulder disability more closely approximated the symptomatology associated with a 40 percent disability rating throughout the period on appeal. To that end, the Board notes that the Veteran's July 2016, August 2018, and January 2021 VA examiners failed to account for the impact of the Veteran's use of muscle relaxants and pain medications for her right shoulder disability throughout the period on appeal. Relevantly, the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 64 (2012). Indeed, the Veteran reported to VA treatment providers that her medication use significantly ameliorated her symptoms, such as pain, but the July 2016, August 2018, and January 2021 VA examiners never provided any opinions estimating her functional ability in the absence of medication. Moreover, the Board notes that the various VA examinations of record have failed to adequately discuss the functional impact of flare-ups or repetitive use over time on the Veteran's right shoulder disability. To that end, although the January 2021 VA examiner did not indicate that there was a history of flare-ups in the examination report, this is inconsistent with the July 2016 and August 2018 VA examination reports, as well as the VA treatment records indicating that her right shoulder disability had continued to worsen. The Board acknowledges that neither the July 2016 nor August 2018 VA examiner elicited detailed information regarding flare-ups as required under Sharp or attempted to estimate the additional limitation on range of motion in terms of degrees. Moreover, neither the July 2016 nor August 2018 VA examiner provided an adequate explanation as to why additional range of motion could not be estimated in terms of degrees, although the August 2018 VA examiner did note that she was already in significant pain after initial range of motion testing. The probative value of the examination findings is thus somewhat diminished. The Board notes that the Veteran received VA treatment during a period of severe shoulder pain in April 2018. At that time, her abduction was limited to only 30 degrees, and she could not perform any overhead movements of the shoulder. Although it is unclear whether this medical treatment record contains range of motion measurements during a flare-up of her right shoulder pain, the Board will assume that it does. The April 2018 VA treatment records are hence entitled to significant probative value. Moreover, these records appear to be consistent with the descriptions of her right shoulder pain over time, which generally indicate that her ability to reach overhead or lift things is markedly limited. Indeed, the July 2016 VA examiner made note of her "horrible" flare-ups. Furthermore, despite the VA examiners' opinions stating otherwise, the record generally indicates that the pain, weakness, fatigability, or incoordination significantly reduced the Veteran's functional ability following repetitive use. To that end, the January 2021 VA examiner acknowledged that various forms of passive and active range of motion testing could not be performed because they would have caused unwarranted pain or discomfort, while the August 2018 VA examiner noted that she was in significant pain after initial range of motion testing. In addition, the January 2021 VA examiner noted that she found it difficult to perform repetitive motions involving lifting her arms above shoulder height. Ultimately, although the VA examiners did not sufficiently describe the impact of flare-ups or repetitive use over time on her functional ability in terms of degrees of motion, the Board finds that the evidence is at least in relative equipoise as to whether her symptoms more nearly approximate those required for the 40 percent disability rating throughout the period on appeal. Stated differently, her symptoms more nearly approximate limitation of motion to 25 degrees from the side (under the prior version of the regulations) throughout the period on appeal, as well as limitation of flexion and/or abduction to 25 degrees from the side beginning in February 7, 2021. Resolving all reasonable doubt in her favor, a 40 percent rating is thus warranted from October 31, 2018, based on her functional loss during flare-ups, beyond that reflected in available range of motion measures. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes pertaining to the shoulder. However, there is no indication of ankylosis of the scalpulohumeral articulation or impairment of the humerus, nor does the evidence show that the shoulder disability approximates one that results in ankylosis. As such, ratings under diagnostic codes 5200 and 5202 are not available. Furthermore, a separate rating under diagnostic code 5203 for impairment of the clavicle or scapula is also not warranted because it would result in impermissible pyramiding, as the Veteran's symptoms, such as pain, limitation of motion due to pain, and functional impairment are contemplated in the currently assigned rating under diagnostic code 5201. See 38 C.F.R. § 4.14. Moreover, since 20 percent is the maximum rating available under diagnostic code 5203, rating the right shoulder under this diagnostic code would not benefit the Veteran. As such, a separate rating is not warranted. In sum, having considered the additional functional loss and limitation of motion caused by repetitive use over time and her flare-ups, which have been present throughout the period on appeal, as well as her use of pain mediation and muscle relaxers throughout the period on appeal, the Board finds that her right shoulder disability more nearly approximates limitation of motion to 25 degrees from the throughout the period on appeal, as well as limitation of flexion and/or abduction to 25 degrees from the side pursuant to the rating criteria in effect from February 7, 2021. This is the maximum rating that can be assigned based on limitation of motion in the arm. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.