Citation Nr: 21030989 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-07 656 DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to November 8, 2020, and in excess of 20 percent thereafter, for chronic lumbar strain with degenerative disc disease (DDD), is denied. Entitlement to a 20 percent rating prior to January 5, 2009, for a right shoulder strain, is granted. Entitlement to a rating greater than 20 percent from January 5, 2009 to November 8, 2020, for right shoulder strain, is denied. Entitlement to a 30 percent rating beginning November 8, 2020, for right shoulder strain, is granted. FINDINGS OF FACT 1. For the period prior to November 8, 2020, the Veteran's lumbar spine disability manifested with pain on movement and forward flexion limited to 80 degrees, at its worst; with no functional loss, incapacitating episodes, or ankylosis of the spine. 2. For the period beginning November 8, 2020, the Veteran's lumbar spine disability manifested with pain on movement, forward flexion limited to 85 degrees, with functional loss to 60 degrees flexion due to flareups, but no incapacitating episodes, or ankylosis of the spine. 3. For the period prior to November 8, 2020, the Veteran's right shoulder strain manifested with painful, limited motion, but not flexion limited to midway between the shoulder and side, impairment of the scapula or humerus, or ankylosis. 4. Beginning November 8, 2020, the Veteran's right shoulder strain manifested with painful, limited motion; with flexion limited to 118 degrees and abduction limited to 80 degrees after repetitive use, and functional loss due to pain, fatigue, and weakness, but not ankylosis, limitation in motion to 25 degrees from his side, nor is there evidence of fibrous, nonunion, or loss of head of the humerus. CONCLUSIONS OF LAW 1. For the period prior to November 8, 2020, the criteria for a rating greater than 10 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5242-5243. 2. Beginning November 8, 2020, the criteria for a rating greater than 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107, 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5242-5243. 3. Prior to January 5, 2009, the criteria for a 20 percent rating for right shoulder strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5201. 4. From January 5, 2009, to November 8, 2020, the criteria for a rating greater than 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5201. 5. Beginning November 8, 2020, the criteria for a 30 percent rating for right shoulder strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2002 to February 2005. This matter was previously before the Board in December 2016 and in January 2019 and was remanded for further development in both instances. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of service connection for gastroesophageal reflux was granted in a March 2021 rating decision. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to a rating in excess of 10 percent prior to November 8, 2020, and in excess of 20 percent thereafter for lumbar strain. The Veteran contends that an increased rating is warranted for his service-connected lumbar strain. The Veteran's lumbar strain has been rated as 10 percent disabling prior to November 8, 2020, and 20 percent thereafter. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran's lumbar strain is rated under hyphenated diagnostic codes using Diagnostic Code 5242, degenerative arthritis of the spine and Diagnostic Code 5243, intervertebral disc syndrome. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. And, a 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.71a , Diagnostic Code 5243. The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Effective February 7, 2021, Diagnostic Code 5242 was amended to include degenerative disc disease other than IVDS. Diagnostic Code 5244 was also added to add paraplegia and quadriplegia; and, Diagnostic Code 5237 was not changed. The Board notes that the spine regulations were also amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). This change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. Factual background A review of the evidence shows that the Veteran received a VA examination for his joints in January 2009 where he was diagnosed with chronic lumbar strain. He reported daily pain in the center of his low back that shoots down the back of his right leg and radiates into his right hip. He further reported using Motrin daily. Range of motion findings showed forward flexion limited to 90 degrees, with pain at the extreme. Extension was limited to 20 degrees, with pain at 20 to 30 degrees. Right and left lateral flexion were each limited to 30 degrees, and right and left lateral rotation were each limited to 30 degrees. The Veteran had a combined range of motion of 230 degrees. Reflexes, muscle strength, and peripheral nerves were normal; and, there were no sensory deficits. X-rays showed mild facet joint changes. In a February 2009 General Medical Examination, the Veteran reported one flareup since his last exam. He indicated he was sent to physical therapy, but that it did not help. He reported that his back hurts after sitting for two hours. Range of motion showed flexion limited to 80 degrees, extension limited to 30 degrees, left lateral flexion limited to 20 degrees, right lateral flexion limited to 30 degrees, and right and left rotation were each limited to 30 degrees. He had a combined range of motion of 220 degrees. There were no sensory deficits and reflexes were normal. The Veteran was diagnosed with mild disk disease. In his June 2011 General Medical Examination, the Veteran reported having moderate to severe sharp pain to the right lower lumbar area, and radiation of a shooting type pain down the buttocks and the posterior leg. He reported back pain on a daily basis, and that the pain is increased with bending. The Veteran reported having flareups of the low back during the cold weather that occur every 2 to 4 months and are severe. He reported no functional impairment, but noted decreased motion, stiffness, and indicated he received nerve injections and is currently on pain medications. Physical examination showed low lumbar tenderness, but the Veteran had a normal gait, with no abnormal spinal curvature, guarding, spasm, atrophy, or ankylosis. Range of motion findings showed flexion limited to 80 degrees, and extension, right and left lateral rotation, and right and left lateral flexion, were each limited to 30 degrees. The Veteran had a combined range of motion of 230 degrees. There was no evidence of pain following repetitive motion. The Veteran's reflexes and sensory examination were normal. X-rays showed an essentially normal MRI of the lumbar spine without evidence of nerve impingement or spinal stenosis. The Veteran was diagnosed with lumbar strain and minimum degenerative changes of the lumbar spine. In November 2020, the Veteran received a VA examination where he was diagnosed with degenerative arthritis of the spine. He reported pain that shoots down the back of his right leg, and that he primarily has problems when going up stairs or an incline. Range of motion findings showed forward flexion limited to 85 degrees, extension limited to 20 degrees, right and left lateral flexion were each limited to 25 degrees, and right and left lateral rotation were each limited to 30 degrees. The Veteran had a combined range of motion of 215 degrees. Pain was noted on the examination but did not cause functional loss. There was no evidence of pain or tenderness on palpation and no pain with weightbearing or on non-weightbearing. After repetitive use testing, the Veteran's back exhibited a reduction in flexion to 75 degrees and a reduction in right lateral flexion to 20 degrees. The same reduction was noted after repetitive use over time due to pain. Similarly, the examiner noted a reduction after flareups to 60 degrees flexion, 15 degrees each for extension and right lateral flexion, 18 degrees for left lateral flexion, and 22 degrees each for right and left lateral rotation. There was no evidence of guarding or muscle spasms. Muscle strength testing and his sensory examination were normal; however, reflexes of his bilateral knee and ankles were noted as hyperactive without clonus. The Veteran was found to have radiculopathy symptoms of severe intermittent pain of the right lower extremity; however, there was no evidence of ankylosis, intervertebral disc syndrome, or other abnormalities. Analysis As noted above, the Veteran is in receipt of a 10 percent rating prior to November 8, 2020, and 20 percent thereafter. The Board notes that the 10 percent rating was granted based on painful motion under 38 C.F.R. § 4.59 as his lumbar spine range of motion did not meet the criteria for a compensable evaluation. Based on the above and remaining evidence, the Board finds the Veteran's ratings have been appropriately staged and higher ratings are not warranted. For the period prior to November 8, 2020, The Veteran's VA examinations show forward flexion limited to 80 degrees at its worst, and a combined range of motion of 220 degrees at worst; both indicative of a 10 percent rating. Although the Veteran complained of pain in his January 2009 examination, pain did not cause further limitation of motion. In addition, in his June 2011 examination, there was no evidence of pain following repetitive motion or additional limitations in motion. The Veteran's reflexes and sensory examinations were consistently normal, he had a normal gait, and there was no evidence of an abnormal spinal curvature, guarding, spasm, atrophy, ankylosis or incapacitating episodes. The Board also notes that in his February 2009 examination the Veteran reported using a cane; however, the examiner indicated that he could not determine why which further suggests the Veteran's lumbar spine did not cause functional loss to warrant a higher rating. VA treatment records also support a 10 percent rating prior to November 8, 2020. For example, in an April 2011 rehabilitation note, the examiner found the Veteran's lumbar spine exhibited localized right back pain and tenderness to palpation over his right low back, but there was normal flexion and extension. In a subsequent April 2011 physical therapy assessment, the examiner found the Veteran's lumbar spine was within full limits and noted the Veteran's back symptoms were not reproducible on evaluation and that there were inconsistencies with objective measures and subjective reports. In March 2013, the Veteran received a kinesiotherapy assessment for his low back and right shoulder and reported his pain was a 2 out of 10, which suggests minimal pain. The Board notes that there were no VA examinations obtained since his last exam in June 2011 and prior to November 2020, partly due to the Veteran's lack of transportation and changes of address. However, VA treatment records show that the Veteran was treated for unrelated conditions during this period and he complained of back pain intermittently; however, there is no factually ascertainable evidence prior to November 8, 2020 that shows his lumbar spine worsened to the extent that a rating greater than 10 percent would have been warranted. As such, the Board finds a rating greater than 10 percent is not warranted prior to November 8, 2020 as the Veteran did not have limitation in motion or functional loss to warrant a higher rating. The Board recognizes the Veteran's complaints of pain, including with sitting, going up and incline, and in cold weather; however, his pain did not cause further limitations in motion or functional loss which was evident in his January 2009 and February 2009 examinations when the examiner noted that pain was shown at 90 degrees and 80 degrees flexion, respectively. In addition, in his June 2011 examination, the examiner found no further limitation in motion after repetitive use testing. Although he had low lumbar tenderness, the Veteran had a normal gait, with no abnormal spinal curvature, guarding, spasm, atrophy, or ankylosis. Subsequent treatment records show complaints of pain, but there is no factually ascertainable evidence that shows the Veteran's lumbar spine exhibited limitation in motion to a minimum of 60 degrees forward flexion, which is necessary for a higher rating. Moreover, the Board finds the Veteran is not entitled to a higher rating as functional loss has already been contemplated for in the assigned disability rating. Therefore, the Board finds the preponderance of evidence is against finding a rating greater than 10 percent is warranted for the period prior to November 8, 2020. For the period beginning November 8, 2020, the Veteran was granted a 20 percent rating based on findings in his VA examination on this date. Although the Veteran continued to show range of motion indicative of a 10 percent rating, the Veteran was found to have a reduction in motion after repetitive use testing to 75 degrees, and a significant reduction to 60 degrees after flareups. As such, functional loss was considered and applied in granting the Veteran a 20 percent rating and there is no evidence that his functional loss limits his motion to 30 degrees flexion or is not adequately contemplated in the assigned 20 percent rating. A higher rating is not warranted as there is no evidence during this period that shows the Veteran's lumbar spine exhibited forward flexion to 30 degrees or less, ankylosis of the spine, or incapacitating episodes. For the reasons outlined above, the Board finds the preponderance of evidence is against the claim as the evidence does not show further limitations in motion, functional loss, ankylosis, or incapacitating episodes that would warrant a rating greater than 10 percent prior to November 8, 2020, or greater than 20 percent thereafter. With regard to associated neurologic abnormalities, there is no evidence of bladder or bowel impairment; and there is no evidence of radiculopathy except for right lower extremity radiculopathy for which he is already being compensated. Thus, as the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for an increased rating for lumbar spine disability is denied. 2. Entitlement to a rating in excess of 10 percent prior to January 5, 2009 and in excess of 20 percent thereafter for right shoulder strain. The Veteran seeks an increased rating for his right shoulder strain, which has been assigned staged ratings under Diagnostic Code 5201; and pertains to limitation of motion of the arm. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. In the instant case, the Veteran is right-hand dominant, so his right shoulder is considered the major upper extremity. Pursuant to Diagnostic Code 5201, a 20 percent evaluation is warranted for motion of the major arm limited to shoulder level. A 30 percent rating is warranted for motion of the major arm limited to midway between the side and shoulder level. A maximum 40 percent rating is assignable for the major upper extremity, when motion is limited to within 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. 38 C.F.R. § 4.71, Plate I. Shoulder level is 90 degrees. Like the spine, there were also regulation changes to the rating criteria for the shoulder and arm, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Under Diagnostic Code 5201 governing limitation of motion of the arm, this clarifies that loss of motion includes flexion or abduction, and provides specific range of motion measurements for the ratings (i.e., midway between side and shoulder level defined as 45 degrees, at shoulder level defined as 90 degrees). Additionally, Diagnostic Code 5202 governing impairment of the humerus defines movement only at shoulder level as "flexion and/or abduction at 90 degrees." Factual Background In January 2009, the Veteran received a VA examination for his joints where he was Diagnosed with chronic right shoulder strain. The Veteran reported having daily pain in his right shoulder that he treats with Motrin. He reported that his right shoulder pops in and out all the time, and that he cannot throw a ball. The examiner noted the Veteran was right-hand dominant, and his right shoulder had a small, superficial surgical scar. Range of motion findings showed right shoulder flexion limited to 160 degrees with no pain, and pain at 160 to 170 degrees. Abduction was limited to 140 degrees with no pain, but there was pain from 140 to 160 degrees. External and internal rotation were both limited to 90 degrees with no pain. X-rays showed stable post-surgical change. In a February 2009 General Medical Examination, the Veteran was again diagnosed with right shoulder strain. He reported one flareup in the interval since his last exam. He further reported being sent to physical therapy, but he believed it made it worse. He also reported that he cannot lift his son and that his right shoulder hurts when he rolls over during sleep. Range of motion for his right shoulder showed flexion limited to 150 degrees, with pain at 150 to 170 degrees; abduction was limited to 120, with pain at 120 to 155 degrees; external rotation was limited to 80 degrees, with pain at 80 to 90 degrees; and, internal rotation was limited to 40 degrees, with pain at 40 to 55 degrees. Palpation was normal and there were no further limitations. In a June 2011 General Medical examination, the Veteran reported popping in and out of the right shoulder, pain that is sharp and stabbing when the shoulder pops out, and difficulty with range of motion. He reported that he uses medication as needed and denied flareups or functional impairments. Range of motion findings showed right shoulder flexion and abduction were each limited to 175 degrees; left internal rotation was limited to 85 degrees, and right external rotation was limited to 90 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions. In his November 8, 2020 shoulder examination, the Veteran reported his shoulder is the worst in the morning and that he cannot throw a ball with his son. Range of motion findings showed right shoulder flexion limited to 128 degrees, abduction limited to 88 degrees, external rotation was limited to 55 degrees, and internal rotation was limited to 25 degrees. The examiner noted the decreased range of motion causes functional loss in that the Veteran has decreased overhead reaching. Pain was noted with external rotation but there was no evidence of pain with weightbearing nor was there crepitus. The Veteran was able to perform repetitive use testing with a decrease in flexion to 118 degrees, abduction was limited to 80 degrees, external rotation was limited to 55 degrees, and internal rotation was limited to 23 degrees. There was functional loss due to pain, fatigue, and weakness. After repeated use over time, the examiner estimated the same loss in function due to weakness. After flareups, it was estimated that the Veteran had reduced range of motion to 96 degrees flexion, 66 degrees abduction, 42 degrees external rotation, and 18 degrees internal rotation. An additional contributing factor was less movement than normal. Muscle strength was reduced for abduction. There was no muscle atrophy or ankylosis. A rotator cuff condition was suspected. The examiner noted shoulder instability, a history of recurrent dislocation with frequent episodes and guarding of movement only at shoulder level. The Veteran was diagnosed with glenohumeral joint dislocation since he was noted to have a history of recurrent dislocation of the right shoulder. Analysis Based on the above and remaining evidence, the Board finds a staged rating of 20 percent, but no higher, is warranted prior to November 8, 2020, and a 30 percent rating is warranted thereafter. In support thereof, the Board initially notes that the Veteran was granted a minimum compensable rating of 20 percent, effective January 5, 2009, based on functional loss due to painful motion. In the Veteran's January 5, 2009 VA examination, he reported having daily pain in his right shoulder that he treats with Motrin. He further reported that his right shoulder pops in and out all the time, and that he cannot throw a ball. Although this shows evidence of painful motion, the Veteran's reports suggest that he has experienced painful motion prior to this date. In addition, the record shows a January 2008 admission note for psychiatric care where the Veteran complained of right shoulder pain. Moreover, a November 2008 psychiatric nurse note shows the Veteran complained of right shoulder pain during his admission into a substance abuse treatment program. Given these findings, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran has experienced painful motion since the beginning of the appeal period. Therefore, a 20 percent rating is granted for the period prior to January 5, 2009. However, a rating greater than 20 percent is not warranted for the period prior to November 8, 2020, as his VA examinations showed no compensable range of motion for his right shoulder, nor was there impairment of the humerus, scapula, recurrent dislocations with frequent episodes and guarding of all arm movements, ankylosis, or any other abnormality. In addition, VA treatment records do not support a higher rating. For instance, a January 2009 VA treatment record shows a negative shoulder apprehension test. A March 2009 treatment record shows the Veteran was found to have limited range of motion on lateral extension; however, in a subsequent March 2009 visit, he denied shoulder pain. In an October 2011 treatment visit, the Veteran was found to have a positive apprehension sign and was diagnosed with chronic shoulder laxity; however, he was noted to have decreased range of motion overhead which shows that the Veteran's right shoulder was not limited to shoulder level or below. The Board also observes a March 2011 VA treatment note that shows while the Veteran participated in kinesiotherapy, he used free weights, the bench press, lateral pull-downs, and chest fly. There were no reported problems or pain to his shoulder in doing so. Further, in March 2013, the Veteran received a kinesiotherapy consult for his right shoulder and low back. He reported pain was a 2 out of 10 and indicated it would not interfere with participation in rehabilitation. Records show the Veteran participated in therapy from March 2013 to May 2013 where he did free weights and the overhead pully. Each session note indicated the Veteran voiced no complaints, concerns, or questions during the sessions. Subsequent treatment records show complaints of pain, but there is no factually ascertainable evidence of a worsening of his right shoulder prior to November 8, 2020. Therefore, the Board finds the preponderance of evidence is against finding a rating greater than 20 percent is warranted prior to November 8, 2020. The Board notes, however, that in the Veteran's November 8, 2020 examination, the Veteran's right shoulder exhibited flexion limited to 128 degrees and abduction limited to 88 degrees. In addition, his shoulder decreased in flexion to 118 degrees and abduction to 80 degrees after repetitive use testing; and the examiner found functional loss due to pain, fatigue, and weakness. Moreover, the examiner found a history of recurrent dislocations with frequent episodes and guarding of movement only at shoulder level. The Board notes that under Diagnostic Code 5202, recurrent dislocations with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating, while frequent episodes and guarding of all arm movements warrants a 30 percent rating. Given this finding, coupled with the Veteran's decrease in limitation of motion due to functional loss, the Board finds the evidence is in equipoise as to whether a higher rating is warranted as of November 8, 2020. As such, reasonable doubt is resolved in favor of the Veteran and a 30 percent rating is granted beginning November 8, 2020. A rating greater than 30 percent is not warranted as there is no evidence of ankylosis, limitation in motion to 25 degrees from his side, nor is there evidence of fibrous, nonunion, or loss of head of the humerus. Accordingly, a 20 percent rating is warranted for right shoulder disability prior to November 8, 2020, and a 30 percent rating is granted thereafter. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.