Citation Nr: A25058366 Decision Date: 07/08/25 Archive Date: 07/08/25 DOCKET NO. 230103-310834 DATE: July 8, 2025 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right shoulder strain is granted. Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right hip strain with limitation of flexion is granted. FINDINGS OF FACT 1. The Veteran's service-connected right shoulder strain is manifested by, at most, limitation of motion of the dominant right arm to midway between the side and shoulder level during flareups but without evidence of ankylosis of the scapulohumeral articulation; malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the humerus; and/or malunion, nonunion, or dislocation of the clavicle or scapula. 2. The Veteran's service-connected right hip strain with limitation of flexion is manifested by, at most, flexion limited to 15 degrees during flareups but without evidence of extension limited to 5 degrees; rotation of the thigh with limitation of abduction with motion lost beyond 10 degrees; hip replacement; ankylosis; flail joint hip; and/or malunion, nonunion, or fracture of the hip. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right shoulder strain are met. 38 U.S.C. §§ 1155, 5107; 38?C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right hip strain with limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38?C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1985 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2022 rating decision, issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In the January 2023 Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, the Veteran elected the Evidence Submission Docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran (or representative) with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings 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.???? 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 for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7.???? "Staged" ratings are appropriate for any rating claim 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 (2007); Fenderson v. West, 12?Vet. App.?119 (1999).???? When assessing the severity of a musculoskeletal disability rated based on limitation of motion, VA must consider the extent to which a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as after repeated usage over time or during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8?Vet. App.?202, 204-7 (1995); 38?C.F.R. §§?4.40, 4.45, 4.59. When feasible, evaluation should consider range of motion while weight-bearing and non-weight-bearing, and in passive and active motion. See 38?C.F.R. §?4.59; Correia v. McDonald, 28?Vet. App.?158 (2016); Mitchell v. Shinseki, 25?Vet. App.?32 (2011); Sharp v. Shulkin, 29?Vet. App.?26 (2017).???? Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.??? In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38?C.F.R. §?4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38?C.F.R. §?4.14. A Veteran may have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. However, the critical element in permitting the assignment of multiple ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6?Vet. App.?259, 261-62 (1994).? 1. Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right shoulder strain is granted. The Veteran contends his current, initial 20 percent disability rating does not accurately reflect the severity of his service-connected right shoulder disability. The Veteran's right shoulder disability is rated under Diagnostic Code (DC) 5201, for limitation of motion of the arm and is currently rated as 20 percent disabling based on painful motion under 38 C.F.R. § 4.59. Full and normal range of motion of the shoulder is 0 to 180 degrees flexion or abduction, and 0 to 90 degrees external or internal rotation. 38 C.F.R. § 4.71, Plate I. Under DC 5201, different ratings are provided for minor and major extremities. The evidence establishes the Veteran is right-hand dominant. Therefore, rating for the major extremity is warranted. From February 7, 2021, DC 5201 provides that, for the dominant shoulder, a 20 percent rating is assigned for limitation of motion to shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent rating is assigned for limitation of flexion and/or abduction to 25 degrees from side. 38 C.F.R. § 4.71a. DC 5201. The record does not show, and the Veteran does not contend he experiences ankylosis of the scapulohumeral articulation; malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the humerus; or malunion, nonunion, or dislocation of the clavicle or scapula. Accordingly, a higher or separate rating is not warranted under Diagnostic Codes 5200, 5202, or 5203. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The record does not contain any private or VA treatment records. In an August 2022 written statement, the Veteran, through his attorney, contends he experiences right shoulder symptoms including pain, restricted range of motion, and painful motion and periodic flareups of pain that significantly limit his functional ability and further restrict his range of motion. See August 2022 Third Party Correspondence. In September 2022, the Veteran underwent a VA examination. The examiner diagnosed bilateral shoulder strain. See September 2022 VA Examination. The Veteran reported the onset of his right shoulder condition following an injury he sustained while mountain biking during service and indicated the condition has gradually worsened since onset with periodic shoulder pain, especially in the mornings. Id. He did not report undergoing any current/ongoing treatment or taking any medications. Id. Despite the Veteran's August 2022 report of experiencing restricted range of motion, painful motion, and periodic flareups of pain that significantly limit his functional ability, the examiner indicated the Veteran denied experiencing any flareups and denied any functional loss. Id. On examination, the Veteran exhibited normal, active and passive ranges of motion with flexion and abduction to 180 degrees and internal and external rotation to 90 degrees. Id. He exhibited pain on all movements, not resulting in functional loss. Id. He further exhibited evidence of mild tenderness to the trapezius trigger points (TTP) of the superior shoulder which the examiner opined was directly related to his service-connected disability. Id. He was able to perform repetitions, also with no functional loss. Id. The examiner indicated the Veteran was being examined immediately after repeated use over time. Id. While the examiner opined pain would significantly limit the Veteran's functional ability after repeated use over time, he estimated the Veteran would continue to exhibit normal range of motion with flexion and abduction to 180 degrees and internal and external rotation to 90 degrees. Id. The examiner did not note any additional factors contributing to his right shoulder disability and did not note any other significant findings. Id. No imaging was conducted in connection with the examination and the examiner indicated imaging was not clinically indicated. Id. The Veteran denied the use of any assistive device. Id. The examiner opined his right shoulder disability did not then result in any functional impact. Id. In a December 2022 written statement, the Veteran reported he has experienced progressively worsening right shoulder symptoms since his in-service injury with frequent bouts of pain resulting in restricted mobility of his right arm. See December 2022 Written Statement, Received January 2023. He indicated that on his worst days his pain is so severe it is nearly impossible to raise his right hand much higher than waist level in any direction. Id. He indicated his right shoulder symptoms make it difficult to put on shirts and interfere with his ability to perform any weightbearing with his right arm. Id. Finally, he reported the above-described symptoms, to include periodic flareups, have existed for years and prior to the filing of his claim and expressed his belief that his initially assigned rating does not accurately reflect the severity of his right shoulder symptoms. Id. In January 2023, the Veteran submitted a private examination report completed by doctor A.L., D.O. (who noted review of the Veteran's claims file and the relevant medical and lay evidence of record). See December 2022 Private Examination, A.L., D.O., Received January 2023. The private doctor diagnosed right shoulder strain. Id. The Veteran reported the onset of his right shoulder condition during service and worsening pain and limitation of motion of his right shoulder since onset, especially during pronounced flareups. Id. He reported experiencing flareups of pain that on his worst days is so severe it is nearly impossible to raise his arm much higher than waist level. Id. He reported functional loss consisting of pain that impairs most motions of his shoulder, causes difficulty raising his arm, and interferes with basic grooming, dressing, and driving. Id. On examination, he exhibited normal active range of motion with flexion and abduction to 180 degrees and external and internal rotation to 90 degrees. Id. The Veteran was able to perform repetitions with no functional loss. Id. The examiner did not provide any range of motion measurements in passive motion but noted evidence of pain "on active, passive, or repetition" and on "weightbearing or non-weightbearing" and mild, localized tenderness in the TTP of the superior shoulder the doctor opined is directly related to the Veteran's service-connected disability. Id. The private doctor noted additional functional loss of less movement than normal, excess fatigability, incoordination, and pain on movement, associated with limitation of motion. Id. The private doctor opined factors to include pain, weakness, fatigability, and incoordination would significantly limit the Veteran's right shoulder functional ability during flareups or after repeated use over time with estimated flexion and abduction to 45 degrees, external rotation to 30 degrees, and internal rotation to 25 degrees. Id. The private doctor further opined the Veteran's ability to perform any weightbearing activities would be compromised during flareups due to pain and muscle weakness. Id. The private doctor did not note any other significant findings. Id. The Veteran denied the use of any assistive device and no imaging was conducted in connection with the private examination. Id. The private doctor opined the Veteran's right shoulder disability during flareups would result in functional impact of decreased ability to complete any manual work, especially requiring weightbearing and difficulty performing sedentary work due to pain and weakness. Id. In sum, the December 2022 private examination documented, at most, right shoulder flexion limited to 45 degrees and abduction limited to 45 degrees during flareups, consistent with the 30 percent rating criteria under DC 5201 for limitation of motion to midway between side and shoulder level. No evidence of record documents limitation of flexion and/or abduction to 25 degrees for which a higher, 40 percent disability rating is warranted. This is so even when pain on use or during flares is taken into account. Based on the foregoing, giving the Veteran the benefit of the doubt, the evidence of record documents, at most, limitation of motion of the dominant right arm to midway between the side and shoulder level. Therefore, an initial 30 percent disability rating, but no higher, is warranted. 2. Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected right hip strain with limitation of flexion is granted. The Veteran contends his current disability ratings do not accurately reflect the severity of his service-connected right hip disability. The Veteran is currently in receipt of separate disability ratings for limitation of extension under DC 5251, rated noncompensable; limitation of flexion under DC 5252, rated noncompensable; and right hip limitation of thigh under DC 5253, rated 10 percent disabling. See November 2022 Rating Decision Codesheet. Hip disabilities are rated under DC 5054, and DC 5250 through DC 5255. 38 C.F.R. § 4.71a. Hip replacements are addressed under DC 5054. Ankylosis is rated under DC 5250. Under DC 5251, a 10 percent rating is assigned for extension of the thigh limited to 5 degrees. Under DC 5252, a 10 percent rating is assigned for flexion of the thigh limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, a 30 percent rating is assigned for flexion limited to 20 degrees, and a 40 percent rating is assigned for flexion limited to 10 degrees. Under DC 5253, a 10 percent rating is assigned for limitation of rotation of the thigh, where the affected leg cannot toe-out more than 15 degrees; a 10 percent rating is assigned for limitation of abduction, cannot cross legs; and a 20 percent rating is assigned for limitation of abduction, motion lost beyond 10 degrees. A flail joint of the hip warrants an 80 percent rating under DC 5254. Under DC 5255, ratings are assigned for malunion, nonunion, and fracture involving the hip. 38 C.F.R. § 4.71a. The normal range of motion of the hip is 0 to 125 degrees flexion, 0 to 30 degrees extension, 0 to 45 degrees abduction, 0 to 25 degrees adduction, 0 to 60 degrees external rotation, and 0 to 40 degrees internal rotation. 38 C.F.R. § 4.71, Plate II. The Veteran does not contend, and the evidence of record does not show he has undergone a hip replacement or experiences ankylosis, flail joint of hip, malunion, nonunion, or fracture of the hip. Therefore, ratings under DCs 5054, 5250, 5254, and/or 5255 are not warranted. The record does not contain any VA or private treatment records. In an August 2022 written statement, the Veteran, through his attorney, contends his right hip disability results in symptoms including restricted range of motion, painful motion, and periodic flareups of pain that significantly limit functional ability and restrict range of motion. See August 2022 Third Party Correspondence. He further contends he has experienced the above symptoms from active duty through present. Id. In September 2022, the Veteran underwent a VA examination. The examiner diagnosed bilateral hip strain. Id. The Veteran reported the onset of his right hip strain after an injury he sustained while mountain biking during service. Id. He reported the condition has gradually worsened since service with symptoms of frequent hip pain. Id. He did not report undergoing any current/ongoing treatment for his right hip or taking any medications. Id. He reported experiencing severe flareups of intense, sharp hip pain at times due to which he is unable to walk. Id. He indicated his flareups occur 2-3 times per month, last for a duration of up to 10 minutes, are precipitated by certain movements, and are alleviated by rest. Id. He reported functional loss as an inability to walk during flareups. Id. On examination, he exhibited abnormal active and passive range of motion with flexion to 110 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Id. He exhibited pain on all movements in active and passive motion. Id. The examiner indicated limitation of adduction prevented the Veteran from crossing his legs on active but not on passive motion. Id. The examiner noted evidence of pain on weightbearing, in active motion, and in passive motion causing functional loss of being unable to walk during flareups and noted evidence of right hip crepitus and moderate pain on palpation of the TTP of the lateral hip which the examiner opined is directly related to his service-connected disability. Id. The Veteran was able to perform repetitions with no additional functional loss. Id. The examiner indicated the Veteran was then being examined immediately after repeated use over time and during a flareup and indicated pain, fatigability, weakness, lack of endurance, and incoordination significantly limited the Veteran's functional ability after repeated use over time and during flareups, as noted in the above range of motion measurements, with flexion to 110 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Id. The examiner further indicated adduction during flareups and after repeated use over time would prevent the Veteran from crossing his legs. Id. The examiner did not note any additional factors contributing to the disability and did not note any other significant findings. Id. The Veteran denied the use of any assistive device. Id. No imaging was conducted in connection with the examination and the examiner indicated x-rays were not clinically indicated. Id. The examiner opined the Veteran's right hip disability would result in functional impact of up to one week work time lost over the prior 12-month period based on the Veteran's report his hip pain causes problems with his ability to work as a pilot. Id. In a December 2022 written statement, the Veteran reported he has been experiencing worsening right hip symptoms since his in-service injury including frequent, excruciating hip pain that limits his ability to walk and perform other physical activities and prevents him from bending his hip at all. See December 2022 Written Statement, Received January 2023. He indicated simple activities such as descending stairs can be nearly impossible during such painful episodes because his hip essentially becomes locked/immobilized, forcing him to limp. Id. He indicated these episodes can last for days during which he is effectively immobilized because it is too painful to get around. Id. He indicated his flareups of pain have worsened since service and have persisted for the past several years. Id. Finally, he expressed disagreement with the September 2022 VA examiner's evaluation of his hip disability. Id. In January 2023, the Veteran submitted a private examination report completed by doctor A.L., D.O. (who noted review of the Veteran's claims file and the relevant medical and lay evidence of record). See December 2022 Private Examination, A.L., D.O., Received January 2023. The private doctor diagnosed right hip strain. Id. The Veteran reported the onset of hip pain during service which has progressed in frequency and severity since service. Id. He reported experiencing periodic flareups of increased hip pain, stiffness, and limited range of motion and reported experiencing functional loss of limitation in activities due to hip pain to include prolonged standing and walking. Id. On examination, the Veteran exhibited abnormal active range of motion contributing to functional loss with flexion to 110 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees, consistent with the active range of motion he exhibited immediately after repeated use over time and during a flareup as documented in the September 2022 VA examination. Id. The private doctor did not indicate whether adduction was limited such that he could not cross his legs. Id. He was able to perform repetitions with no additional functional loss. Id. The private doctor did not provide range of motion measurements in passive motion but indicated the Veteran exhibited painful motion in "active, passive, and/or repetitive" testing and exhibited pain on "weightbearing or non-weightbearing" resulting in functional loss. Id. The private doctor further noted evidence of crepitus and moderate pain on palpation of the lateral hip which the private doctor opined is directly related to the Veteran's service-connected disability. Id. The private doctor noted additional factors contributing to disability of less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. Id. The private doctor opined factors to include pain, weakness, fatigability, and incoordination would significantly limit the Veteran's functional ability during flareups or after repeated use over time with estimated flexion to 15 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. Id. The private doctor did not note any additional significant findings. Id. The Veteran denied the use of any assistive device and no diagnostic testing was performed in connection with the examination. Id. The private doctor indicated the Veteran's right hip disability would result in functional impact of chronic pain with frequent flareups, as reported by the Veteran, that significantly decrease his functional ability and interfere with his ability to perform activities of daily living due to being unable to bend his hip, or walk, stand, or sit for prolonged periods during such exacerbations. Id. Regarding the above range of motion estimates during flareups and after repeated use over time, the private doctor indicated all chronic musculoskeletal conditions can result in increased joint pain, fatigue, and reduced range of motion of the affected joints and indicated the periodic limitations the Veteran reported are consistent with such flareups. Id. He further indicated his range of motion estimates were based on his knowledge of the onset and course of the Veteran's right hip disability and on consideration of all pertinent evidence of record to include the Veteran's medical history, subjective descriptions, examination of the Veteran, and review of the complete claims file including the Veteran's service records and the September 2022 VA examination. Id. Based on the foregoing, the evidence of record documents extension limited to, at most, 20 degrees, consistent with a noncompensable disability rating under DC 5251 for limitation of extension. Therefore, a compensable disability rating for limitation of extension (for extension limited to 5 degrees) is not warranted. The evidence of record documents rotation of the thigh limited to, at most, limitation of abduction such that the Veteran cannot cross his legs, consistent with the 10 percent rating criteria under DC 5253 (limitation of abduction, cannot cross legs). Therefore, a higher, 20 percent disability rating for limitation of rotation of the thigh (for limitation of abduction, motion lost beyond 10 degrees) is not warranted. Finally, the evidence of record documents, at most, flexion limited to 15 degrees, consistent with the 30 percent rating criteria under DC 5252 for limitation of flexion (flexion limited to 20 degrees but not limited to 10 degrees). During the September 2022 VA examination, the examiner indicated the Veteran was being examined immediately after repeated use over time and during a flareup and he then exhibited flexion limited to 110 degrees. However, the Veteran's flareups as described and contemplated by the September 2022 VA examiner consist of severe and intense, but short episodes of sharp pain that occur no more than 3 times per month and persist for no longer than 10 minutes while his flareups as described and contemplated by the December 2022 private examiner consist of severe, frequent episodes of pain that can persist for days during which he is unable to bend his hip at all. Moreover, the Veteran exhibited the same initial degree of flexion on active motion during both his September 2022 VA examination and in his December 2022 private examination, some three months later. The Veteran is competent to report his observable symptoms such as pain and limited motion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The December 2022 private examiner's range of motion estimates are based on a physical examination of the Veteran and on review of the claims file to include the September 2022 VA examination and the Veteran's December 2022 written statement, which was unavailable for the September 2022 VA examiner's review. (Continued on the next page) ? In sum, there is an approximate balance of positive and negative evidence regarding the degree of limitation of flexion the Veteran experiences during flareups. Therefore, giving the Veteran the benefit of the doubt, a higher, 30 percent disability rating for limitation of flexion is warranted. However, because no evidence of record documents flexion limited to 10 degrees, a higher, 40 percent disability rating is not warranted. This is true even when pain on use or during flares is taken into account. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Given, R. A. 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.