Citation Nr: 25008489 Decision Date: 06/27/25 Archive Date: 06/27/25 DOCKET NO. 14-36 484 DATE: June 27, 2025 ORDER Entitlement to a rating in excess of 20 percent for left shoulder disability is denied. FINDING OF FACT The Veteran's left shoulder disability is manifested by limitation of motion no worse than at shoulder level of the minor extremity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for left shoulder disability have not 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 FINDING AND CONCLUSION The Veteran served on active duty from August 23, 2000, to March 15, 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file This issue of entitlement to an initial compensable disability rating in excess of 20 percent for a left shoulder disability was denied, inter alia, by the Board in a December 2022 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision for that issue in a March 2023 Memorandum Decision. The Board remanded the issue in April 2024, July 2024, and most recently in February 2025; it is once again before the Board. The Board finds substantial compliance with its February 2025 remand directives. See Stegall v. West, 11 Vet. App. 268(1998). Prior to the December 2022 Board decision, the Veteran's claim was remanded in May 2018. The Board considered whether a claim for TDIU under Rice was applicable but concluded that it was not as the most recent evidence of record indicated that the Veteran was still working in a substantially gainful capacity. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Entitlement to a rating in excess of 20 percent for left shoulder disability The Veteran contends that he is entitled to an initial 20 percent rating for his left shoulder disability. The Board notes the Veteran was granted a 20 percent rating for his left shoulder disability effective March 16, 2010, in a June 2020 rating decision. The Veteran was also granted a temporary total disability rating from August 24, 2011, to October 1, 2011, for convalescence following shoulder surgery. The Veteran's left shoulder disability, claimed as left shoulder dislocation with labral tear, status post arthroscopic surgery, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the §4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In the March 2025 VA examination for the Veteran's left shoulder, the Veteran reported experiencing flare-ups depending on his level of physical activity and if there was cold weather. The Veteran reported his flare-ups as severe, lasting four-to-five days and during which time he is unable to perform certain work tasks, lift heavy objects, throw a ball, or play with his son. The examiner noted the Veteran's dominate side was his right side. The VA examiner was unable to test the Veteran's right shoulder because it was damaged. The Veteran's initial active range of motion testing revealed a flexion 70-degree endpoint, abduction 75 degree endpoint, internal rotation 40 degree endpoint, and an external rotation 30 degree endpoint. The Veteran experienced pain in all directions. Painful motion began at the endpoint in all directions. See March 2025 addendum VA opinion. Passive range of motion testing revealed the same limitation in motion as active range of motion. There was also pain on weight bearing, active motion, and passive motion but did not result in or cause additional functional loss. For weight bearing, the Veteran's pain began at the 60-degree point during flexion, but was otherwise the same as active range of motion testing noted above. There was no crepitus. There was tenderness on palpitation located in the Veteran's anterior/posterior aspect, which was severe. The VA examiner opined this was related to the Veteran's left shoulder dislocation with labral tear status post arthroscopic surgery, acromioclavicular joint osteoarthritis, and infraspinatus supraspinatus tendinosis. After three repetitions the Veteran's left shoulder flexion endpoint was at 65 degrees, abduction endpoint at 75 degrees, internal rotation at 40 degrees, and external rotation at 30 degrees. Estimated range of motion with repeated use over time was flexion endpoint at 60 degrees, abduction at 70 degrees, internal rotation at 40 degrees, and external rotation at 30 degrees. The VA examiner's estimates were based on statements from the Veteran regarding, pain, fatigue, and lack of endurance. For flare-ups, the examiner estimated that the Veteran's range of motion would be the same as repeated use over time. The examiner noted no shoulder muscle atrophy or ankylosis. The examiner suspected shoulder instability, dislocation or labral pathology suspected due to labral tear status post-surgery and AC joint osteoarthritis, however any clavicle/scapula condition does not affect the Veteran's range of motion. The VA examiner noted pain on palpitation of the Veteran's AC joint. There were no impairments of the humerus, and the Veteran does not use assistive devices. There were no other pertinent findings. Regarding functional impact, the VA examiner noted that the Veteran would have limitations in any occupation requiring frequent lifting of heavy objects. A review of the Veteran's VA treatments records reveals the consistent reports of the Veteran's left shoulder disability. The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for a left shoulder disability throughout the appeal period. The evidence of record shows that the Veteran is right-handed as noted in the March 2025 VA examination and throughout the Veteran's record. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that Veteran has flare-ups with severe pain that last four-to-five days would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. As noted above, while the Veteran reported he was not experiencing a flare up on the day of the March 2025 VA examination, and his range of motion testing did not qualify for a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for a left shoulder disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C.§ 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Gallino 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.