KNEE IMPAIRMENT OF

H. N. SCHWARTZ · 2022 · Case ID: 22000602

MIXED

Summary

The veteran served from May 1972 to May 1974. This case was previously remanded by the Board of Veterans' Appeals (BVA) for further development, and the directives have been substantially complied with. The veteran appeals the denial of increased ratings for right and left knee chondromalacia prior to August 29, 2020, and for right shoulder impingement. The veteran also appeals the denial of a compensable rating for right and left knee chondromalacia from August 29, 2020. The Board granted entitlement to a separate rating for right and left knee instability from July 2, 2018. For the right knee chondromalacia prior to August 29, 2020, the Board found the preponderance of the evidence against a rating in excess of 10 percent, noting that while pain and functional loss were present, the limitations did not meet the criteria for a higher rating. Similarly, for the left knee chondromalacia prior to August 29, 2020, the Board found the evidence against a rating exceeding 10 percent. The Board granted a 10 percent rating for right and left knee instability from July 2, 2018, based on mild instability and the allowance of separate ratings for instability and limitation of motion. For the right shoulder impingement, the Board found the evidence against a rating exceeding 20 percent, noting that while pain and functional loss were present, the limitations did not meet the criteria for a higher rating. The Board denied compensable ratings for right and left knee chondromalacia from August 29, 2020, finding that the evidence did not support a compensable rating for limitation of flexion, as the flexion limitations did not meet the criteria for a 10 percent rating.

Rationale

Preponderance of evidence against rating in excess of 10 percent for period prior to August 29, 2020.; Flexion limitations did not meet criteria for 10 percent rating from August 29, 2020.; Pain and functional loss considered but did not warrant higher rating.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-33 271

Full Decision Text

Citation Nr: 22000602
Decision Date: 01/05/22 Archive Date: 01/05/22

DOCKET NO. 14-33 271
DATE: January 5, 2022

ORDER

Entitlement to a rating in excess of 10 percent for right knee chondromalacia prior to August 29, 2020 is denied.

Entitlement to a separate rating for right knee instability from July 2, 2018 is granted.

Entitlement to a compensable rating for right knee chondromalacia from August 29, 2020 is denied.

Entitlement to a rating in excess of 10 percent for left knee chondromalacia prior to August 29, 2020 is denied.

Entitlement to a separate rating for left knee instability from July 2, 2018 is granted.

Entitlement to a compensable rating for left knee chondromalacia from August 29, 2020 is denied.

Entitlement to a rating in excess of 20 percent for right shoulder impingement is denied.

FINDINGS OF FACT

1. Prior to August 29, 2020, right knee chondromalacia was manifest by pain, with flexion limited to 130 degrees at worst.

2. Right knee instability was present from July 2, 2018. The disorder was previously coded as 5257 and was not severed.

3. From August 29, 2020, right knee chondromalacia limitation of flexion was manifest by pain, with flexion limited to 130 degrees at worst.

4. Prior to August 29, 2020, left knee chondromalacia was manifest by pain, with flexion limited to 130 degrees at worst.

5. Left knee instability was present from July 2, 2018. The disorder was previously coded as 5257 and was not severed.

6. From August 29, 2020, left knee chondromalacia limitation of flexion was manifest by pain, with flexion limited to 130 degrees at worst.

7. Right shoulder impingement is manifest by pain, with flexion limited to 70 degrees and worst and abduction limited to 105 degrees at worst.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for right knee chondromalacia prior to August 29, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

2. The criteria for a separate 10 percent rating for right knee instability have been met from July 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

3. The criteria for a compensable rating for right knee chondromalacia from August 29, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

4. The criteria for a rating in excess of 10 percent for left knee chondromalacia prior to August 29, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

5. The criteria for a separate 10 percent rating for left knee instability have been met from July 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

6. The criteria for a compensable rating for left knee chondromalacia from August 29, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

7. The criteria for a rating in excess of 20 percent for right shoulder impingement have not been met. 38 U.S.C. §§ 1155, 5107;
.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

6. The criteria for a compensable rating for left knee chondromalacia from August 29, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

7. The criteria for a rating in excess of 20 percent for right shoulder impingement 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 FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1972 to May 1974.

This case was previously before the Board in June 2021, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Rating planes of motion

In reaching this determination the Court in a recent MEMDEC addressed the rating of different planes of motion of the knee. Here, we note that section 4.59 addresses the award for painful motion on a joint, rather than a plane of motion. Although separate evaluations may be assigned based upon compensable impairments of the planes of motion, section 4.59 provides for a single evaluation based on painful motion of a joint rather than each plane of motion.

1. Entitlement to a rating in excess of 10 percent for right knee chondromalacia prior to August 29, 2020

The Veteran's right knee chondromalacia was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

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
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).

The Veteran received a VA examination in March 2011. Upon examination, the Veteran exhibited full flexion and extension. There was no functional loss after repetitive testing. The examiner noted mild crepitus, but indicated there was no evidence of recurrent subluxation, instability, locking or joint effusion.

A July 2018 VA treatment note states that the Veteran presented for bilateral knee pain. The provider noted that the Veteran denied weakness and instability but wore a brace intermittently for longer ambulatory periods.

The Veteran received another VA examination in August 2018. He reported bilateral knee pain and falling due to knee weakness. Upon examination he exhibited flexion to 130 degrees and extension to 0 degrees. The examiner noted objective evidence of pain and crepitus. Muscle strength was 3/5 bilaterally. There was no muscle atrophy and no ankylosis. Joint stability testing was normal. It was noted that the Veteran uses a brace and cane for knee instability.

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee chondromalacia. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups cause increased pain would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

There is no ankylosis to warrant a rating under DC 5256. Likewise, there is no evidence of dislocation or removal of the semilunar cartilage to warrant a rating under DCs 5258 or 5259. There is no impairment of the tibia and fibula and no genu recurvatum. Finally, there was no evidence of limitation of extension to 5 degrees or more during this period.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee chondromalacia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to a separate rating for right knee instability is granted from July 2, 2018

Initially we note that the knee disorder was previously coded as 5257 and contemplated laxity. The disability was not severed. Instability and limited motion are separate disabilities.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg and finds that the Veteran meets the criteria for a 10 percent rating for right knee instability, from July 2, 2018 under Diagnostic Code 5257 for mild lateral instability.

With respect to instability of the right knee, under Diagnostic Code 5257 prior to February 2021, slight recurrent subluxation or lateral instability warrants a 10 percent disability rating. A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warrants a 30 percent disability rating.

To that end, the Board notes that a 2017 United States
Instability and limited motion are separate disabilities.

To that end, the Board notes that a 2017 United States Court of Appeals for Veterans Claims (Court) decision clarified that compensation under Diagnostic Code 5257 or 5258 as well as limitation of movement, such as expressed in Diagnostic Code 5260 or 5261, is not pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Therefore, the Board may assign a separate compensable rating under Diagnostic Code 5257 when the Veteran is also rated under Diagnostic Code 5260 for limitation of flexion. Further, Diagnostic Code 5257 contemplates different symptoms, including any subluxation or instability exhibited by the Veteran. The Board therefore finds, given the specific facts of this matter, that assigned a compensable rating under Diagnostic Code 5257 would not constitute impermissible pyramiding.

The Board further notes that the Court recently held in English v. Wilkie, No. 17-2083 (U.S. Vet. App. Nov. 1, 2018) that Diagnostic Code 5257 does not indicate medical evidence of instability is required and emphasized VA must adequately consider lay evidence of such.

Turning to the medical evidence of record for the period on appeal, the evidence reflects that the Veteran reported using a cane since at least 2015. However, he repeatedly denied instability prior to a July 2, 2018 VA appointment. Since then, he has consistently reported instability and falling, including at the August 2018 VA examination. The Board finds that the evidence supports a finding that the Veteran experienced instability during this period. Further, the Board finds that the instability was mild, as objective testing was negative.

Therefore, the Board grants a 10 percent rating for right knee instability under Diagnostic Code 5257 from July 2, 2018.

3. Entitlement to a compensable rating for right knee chondromalacia from August 29, 2020

The Veteran's rating for right knee chondromalacia was increased to 10 percent under Diagnostic Code 5260 for limitation of flexion from October 22, 2010 in a November 2020 rating decision. In an August 2021 rating decision, the AOJ reduced the rating for limitation of flexion to 0 percent and increased the rating for limitation of extension to 40 percent. The Veteran's representative has argued that this is an inappropriate rating reduction.

Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). Furthermore, ratings for disabilities that have continued for long periods at the same level (5 years or more) and are subject to episodic improvement will not be reduced based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination on which the rating was assigned. 38 C.F.R. § 3.344.

Here, the Veteran's overall rating (and therefore compensation) was not reduced as a result of the reduction in question - in fact his combined rating at the time remained exactly the same (100 percent). Consequently, the notice requirements of 38 C.F.R. § 3.105 (e) do not apply.

The Board has also considered the issue of severance, as the diagnostic code was changed. In Hedgepeth v. Wilkie, 30 Vet. App. 318, 322 (2018), the appellant contended that the reduction of a 70 percent disability rating assigned to his service-connected PTSD to a noncompensable rating was improper because it amounted to a de facto severance connection that was performed without application of the procedural protections for severance found in 38 U.S.C. § 1159 and 38 C.F.R. § 3.105 (d). There, the reduction was based upon a change in diagnosis from PTSD to a personality disorder. Id. at 323. The United States Court of Appeals for Veterans
has also considered the issue of severance, as the diagnostic code was changed. In Hedgepeth v. Wilkie, 30 Vet. App. 318, 322 (2018), the appellant contended that the reduction of a 70 percent disability rating assigned to his service-connected PTSD to a noncompensable rating was improper because it amounted to a de facto severance connection that was performed without application of the procedural protections for severance found in 38 U.S.C. § 1159 and 38 C.F.R. § 3.105 (d). There, the reduction was based upon a change in diagnosis from PTSD to a personality disorder. Id. at 323. The United States Court of Appeals for Veterans Claims held that "the applicable law and regulations require[d] VA to initiate and conduct severance of service connection proceedings before eliminating service-connected VA benefits" and that a de facto severance "by attempting to apply regulations governing rating reductions while also finding that the 'reduction' is based upon a change of diagnosis rather than material improvement of symptoms" may not be performed without going through the proper channels. Id. at 328. Because a de facto severance had been performed without application of the rules regarding severance of service connection under 38 C.F.R. § 3.105 (d), the Court concluded that the reduction of the Veteran's rating was void. Id. at 329.

Here the situation is not analogous to Hedgepeth. The Veteran's rating code was changed due to a clarification of the appropriate diagnosis and was based on the same manifestations. There is no severance, as all symptoms originally service-connected are contemplated in the changed rating code.

Consequently, the question of propriety rests entirely on whether the reduction was factually warranted based on the evidence then of record. The Veteran's previous rating was based on painful motion, and a diagnostic code for limitation of motion was assigned although there was not limitation of flexion or extension significant enough to warrant a compensable rating. When extension became limited to a compensable degree, the diagnostic code was changed accordingly. The appropriate rating therefore changed, and the new rating encompasses the symptoms of pain that were the basis for the prior rating. The Board finds no fault with this determination by the AOJ, as it was based on a more thorough VA examination. Therefore, the Board finds that the AOJ's actions were proper.

With regard to whether a compensable rating for flexion is warranted from this period, the Board finds that it is not. The Veteran received VA examinations in August 2020 and July 2021.

At the August 2020 examination, he reported pain in the knees. Upon examination, he exhibited flexion to 130 degrees and extension to 0 degrees. The examiner indicated that there was no additional functional loss after repetitive testing but declined to provide estimates for any additional functional loss during flare-ups. There was decreased muscle strength but no atrophy and no ankylosis.

At the July 2021 examination, the Veteran described popping chronic pain, swelling, and difficulty walking. He also reported flare-ups of the right knee that occur monthly and last for several days. Upon examination he exhibited flexion to 120 degrees and extension to 20 degrees. The examiner estimated that during flare-ups range of motion was limited to 110 degrees of flexion and 30 degrees of extension. There was no muscle atrophy and no ankylosis.

The evidence from this period is against a compensable rating for limitation of flexion. At no point was flexion limited to 60 degrees as would be necessary for a 10 percent rating. The Veteran's pain has been accounted for by the separate rating for limitation of extension. Therefore, a compensable rating for limitation of flexion from August 29, 2020 is not warranted.

4. Entitlement to a rating in excess of 10 percent for left knee chondromalacia prior to August 29, 2020

The Veteran received another VA examination in August 2018. He reported bilateral knee pain and falling due to knee weakness. Upon examination he exhibited flexion to 130 degrees and extension to 0 degrees. The examiner noted objective evidence of pain and crepitus. Muscle strength was 3/5 bilaterally. There was no muscle atrophy and no ankylosis. Joint stability testing was
examiner noted mild crepitus, but indicated there was no evidence of recurrent subluxation, instability, locking or joint effusion.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee chondromalacia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

5. Entitlement to a separate rating for left knee instability is granted from July 2, 2018

We note that the knee disorder was previously coded as 5257 and contemplated laxity. The disability was not severed. Instability and limited motion are separate disabilities.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg and finds that the Veteran meets the criteria for a 10 percent rating for left knee instability, from July 2, 2018 under Diagnostic Code 5257 for mild lateral instability.

As noted above, the evidence reflects that the Veteran reported using a cane since at least 2015. However, he repeatedly denied instability prior to a July 2, 2018 VA appointment. Since then, he has consistently reported instability and falling, including at the August 2018 VA examination. The Board finds that the evidence supports a finding that the Veteran experienced instability during this period. Further, the Board finds that the instability was mild, as objective testing was negative.

Therefore, the Board grants a 10 percent rating for left knee instability under Diagnostic Code 5257 from July 2, 2018.

6. Entitlement to a compensable rating for left knee chondromalacia from August 29, 2020

The Veteran's rating for left knee chondromalacia was increased to 10 percent under Diagnostic Code 5260 for limitation of flexion from October 22, 2010 in a November 2020 rating decision. In an August 2021 rating decision, the AOJ reduced the rating for limitation of flexion to 0 percent and increased the rating for limitation of extension to 40 percent. The Veteran's representative has argued that this is an inappropriate rating reduction.

Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). Furthermore, ratings for disabilities
5260 for limitation of flexion from October 22, 2010 in a November 2020 rating decision. In an August 2021 rating decision, the AOJ reduced the rating for limitation of flexion to 0 percent and increased the rating for limitation of extension to 40 percent. The Veteran's representative has argued that this is an inappropriate rating reduction.

The Board has also considered the issue of severance, as the diagnostic code was changed. As noted above, the situation is not analogous to Hedgepeth. The Veteran's rating code was changed due to a clarification of the appropriate diagnosis and was based on the same manifestations. There is no severance, as all symptoms originally service-connected are contemplated in the changed rating code.

With regard to whether a compensable rating for flexion is warranted from this period, the Board finds that it is not. The Veteran received VA examinations in August 2020 and July 2021.

The evidence from this period does not support a compensable rating for limitation of flexion. At no point was flexion limited to 60 degrees as would be necessary for a 10 percent rating. The Veteran's pain has been accounted for by the separate rating for limitation of extension. Therefore, a compensable rating for limitation of flexion from August 29, 2020 is not warranted.

7. Entitlement to a rating in excess of 20 percent for right shoulder impingement

The Veteran's right shoulder impingement 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
, 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.

At a March 2011 VA examination, the Veteran exhibited flexion and abduction to 180 degrees. The examiner noted normal strength and no ankylosis.

The Veteran received another VA examination in August 2018. He reported aching, throbbing pain and decreased range of motion. Upon examination he exhibited flexion to 90 degrees and abduction to 130 degrees. Muscle strength was 2/5 for both forward flexion and abduction. There was no muscle atrophy and no ankylosis.

Another VA examination was conducted in August 2020. The Veteran reported constant nagging pain in the shoulder. Upon examination he exhibited flexion to 100 degrees and abduction to 145 degrees. Muscle strength was 4/5 for both forward flexion and abduction. There was no muscle atrophy and no ankylosis.

A final VA examination was performed in July 2021. The Veteran reported pain and limited range of motion. Upon examination he exhibited flexion to 80 degrees and abduction to 115 degrees. The examiner estimated that range of motion during flare-ups would result in flexion limited to 70 degrees and abduction limited to 105 degrees. There was no muscle atrophy and no ankylosis.

The

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder impingement. The evidence of record shows that the Veteran is right hand dominant. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to repetitive use and pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation 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. The Veteran has exhibited initial flexion limited to no worse than 80 degrees and abduction no worse than 115 degrees, with the examiner estimating that repetitive use and flare-ups would cause flexion to be limited to 70 degrees and abduction to 105 degrees.

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. There is no evidence of ankylosis of scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for right shoulder impingement. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Creegan, Amanda

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.

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