DISEASES AND INJURIES OF THE SPINE

R.R. WATKINS · 2023 · Case ID: 23031558

MIXED

Summary

The veteran, who served from May 1973 to May 1993, appeals the denial of an increased rating for his lumbar spine and right shoulder disabilities. The Board found that the prior VA examinations for the lumbar spine were inadequate due to the inability to provide estimates for ranges of motion during flare-ups or with repetitive use. However, based on a July 2022 VA examination, the Board determined that the veteran's forward flexion was limited to 20 degrees during flare-ups, which meets the criteria for a 40 percent rating for the entire appeal period. The Board also found that the evidence did not support a rating higher than 40 percent, as there was no evidence of unfavorable ankylosis or incapacitating episodes requiring bed rest. For the right shoulder, the veteran sought an increased rating based on worsening symptoms, including pain and limited range of motion. The Board reviewed evidence from multiple VA examinations and a private orthopedic surgery note. While the veteran reported significant pain and functional loss, the objective range of motion measurements, even during flare-ups, did not meet the criteria for a 30 percent rating under Diagnostic Code 5201. The Board concluded that the 20 percent rating for degenerative joint disease of the right shoulder was appropriate, as the evidence did not demonstrate the required limitation of motion.

Rationale

Prior VA exams inadequate for lumbar spine; July 2022 VA exam showed forward flexion to 20 degrees during flare-ups; Meets criteria for 40 percent rating for entire appeal period

Special Benefit

TDIU

Docket No.

17-56 874

Full Decision Text

Citation Nr: 23031558
Decision Date: 05/31/23 Archive Date: 05/31/23

DOCKET NO. 17-56 874
DATE: May 31, 2023

ORDER

A 40 percent evaluation, but no higher, for the lumbar spine is granted for the entire appeal period.

Entitlement to an increased rating in excess of 20 percent, degenerative joint disease of the right shoulder is denied.

FINDINGS OF FACT

1. There is no evidence of unfavorable ankylosis of the Veteran's thoracolumbar spine or of intervertebral disc syndrome.

2. The Veteran's degenerative joint disease of the right shoulder does not result in limitation of motion in the right shoulder to 25 degrees from the side or less.

CONCLUSIONS OF LAW

1. The criteria for a 40 percent rating, but no higher, for lumbar spine disability are met for the entire appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5238.

2. The criteria for entitlement to a rating in excess of 20 percent for right shoulder degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, DC 5003-5201.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1973 to May 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 Regional Office (RO) rating decision.

In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran withdrew the claim of entitlement to a total disability rating based upon individual unemployability (TDIU). Therefore, a TDIU is not raised by the record. A transcript of that hearing is of record.

This case was remanded in May 2022 for further development, to include obtaining new VA examinations. Subsequently, VA examinations have been associated with the record. As such, substantial compliance with the Board's prior remand directives was achieved and the merits of the claim are discussed below. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.3.

Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 92011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016).

The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011).

1. Entitlement to an increased rating in excess of 20 percent prior to July 7, 2022, and a 40 percent disability rating thereafter for a lumbar spine disability

The Veteran contends that he is entitled to an increased rating for his lumbar spine disability.

The Veteran's service-connected lumbar spine disability has been evaluated as 20 percent disabling from July 30, 2007, under the schedule of ratings for the musculoskeletal system. 38 C.F.R. § 4.71a, DC 5242-5237, 5238. The Veteran filed a claim for an increased rating on May 28, 2013, for progressive worsening of his lumbar spine condition.

Further, while on remand for additional development, by an August 2022 rating decision, the AOJ increased the evaluation from 20 percent to 40 percent disabling, effective July 7, 2022, the date of a VA contract examination.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment. 38 U.S.C. § 5110 (g). However, in this case, DC 5238 was not amended.

Currently, all spinal disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Degenerative arthritis of the spine is to be evaluated either under the General Rating Formula or the Formula for Rating Interver
for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment. 38 U.S.C. § 5110 (g). However, in this case, DC 5238 was not amended.

Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or less. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The General Formula also provides that VA must evaluate any associated objective neurological abnormalities separately under an appropriate Diagnostic Code. Id., Note 1.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note 2; see also Plate V.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note 5.

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, at Note 1.

Turning to the evidence of record, the Veteran was afforded a VA examination in June 2015. He reported experiencing dull low back pain with intermittent sharp stabbing pain and occasional radiation down posterior left lower extremity to the ankle. The Veteran reported constant numbness on the right side, anterior thigh, with a sensation of little needles pressing on it. Further, he reported flare-ups that occurred one to two times over the past five years, lasting three days. He also reported functional loss to include, difficulty with prolonged standing, sitting, driving, and with walking, lifting, carrying, and bending. The examiner noted that the Veteran experienced muscle spasms and localized tenderness resulting in abnormal gait or spinal contour. He also noted the occasional use of a brace and cane.

Initial range of motion testing revealed forward flexion to 60 degrees; extension to 25 degrees; right lateral flexion 25 degrees, left lateral flexion 30 degrees; right rotation to 25 degrees, left rotation to 30 degrees. The Veteran was not examined immediately after repetitive use over time or during a flare-up, with the examiner indicating that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion. There was pain noted on exam which causes functional loss and tenderness over the lumbar vertebral processes L3-S1. He retained normal 5/5 strength with
ion to 60 degrees; extension to 25 degrees; right lateral flexion 25 degrees, left lateral flexion 30 degrees; right rotation to 25 degrees, left rotation to 30 degrees. The Veteran was not examined immediately after repetitive use over time or during a flare-up, with the examiner indicating that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion. There was pain noted on exam which causes functional loss and tenderness over the lumbar vertebral processes L3-S1. He retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. The VA examiner was unable to provide estimates for ranges of motion during flare-ups and with repeated-use over time.

At an October 2016 VA examination, the Veteran reported pain in his lower back going down to his buttock and legs. He reported daily constant stabbing pain and averages 7-8/10 on the pain scale. Further, the Veteran reported that his pain becomes worse with prolonged standing and sitting, and he is unable to run but can walk for short distances. He also reported that engaging in manual labor during flare-ups he increases pain, and it puts him down for at least a day. He reported that he uses a back brace as needed when out working.

Initial active range of motion testing revealed forward flexion to 60 degrees; extension to 25 degrees; lateral flexion 20 degrees, bilaterally; rotation to 20 degrees, bilaterally. The Veteran was not examined immediately after repetitive use over time or during a flare-up, with the examiner indicating that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Further, the examiner noted pain with forward flexion on exam and localized tenderness on palpation of the lower lumbar region. He retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. The VA examiner was not able to provide estimates for ranges of motion during flare-ups and with repeated-use over time.

At the August 2021 hearing, the Veteran testified that he endured lumbar pain and/or flare-ups every day with sharp to numbing pain down to his feet. He testified that his lumbar symptoms have become much worse since his last VA examination in 2016.

In a July 2022 VA examination, the Veteran reported constant low back pain with severe functional loss with repetitive use over time due to pain. Additionally, the Veteran reported flare-ups every other day, lasting several hours in duration, with either sitting or lying supine to alleviate pain. Further, he reported being unable to bend over without having to get on his knees to pick up something from the floor.

On both passive and active range of motion testing, the Veteran demonstrated forward flexion to 40 degrees; extension to 20 degrees; lateral flexion 20 degrees, bilaterally; rotation to 20 degrees, bilaterally. There was pain noted on exam. He retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. The examiner estimated on both range of motion for repeated use over time and during flare ups the following results: forward flexion to 20 degrees; extension to 10 degrees; lateral flexion 10 degrees, bilaterally; rotation to 10 degrees, bilaterally.

In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of "mere speculation" opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical
"mere speculation" opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Based upon the forgoing, the Board finds that the examination reports prior to July 2022 are inadequate.

The Board finds that a 40 percent evaluation is warranted for the entire appeal period. During flare-ups the Veteran's forward flexion has been limited to 20 degrees. Therefore, the Veteran meets the criteria for a 40 percent evaluation.

However, to warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Further, there is no evidence of IVDS requiring bedrest. As such, a higher rating is not warranted.

The Board finds that a 40 percent evaluation for the Veteran's lumbar spine disability is warranted for the entire appeal period. However, the Board finds that the evidence of record weighs persuasively against a rating higher than 40 percent for the lumbar spine disability at any point during the appeal period. Thus, 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, 999 F.3d 1391 (2021).

2. Entitlement to an increased rating in excess of 20 percent from May 28, 2013, degenerative joint disease of the right shoulder is denied.

The Veteran contends that his right shoulder disability has worsened. At the August 2021 hearing, the Veteran testified that he cannot lift his arm above his shoulder and that he experiences a shooting pain going through his shoulder to his neck down to scapula whenever he moves.

The Veteran's service-connected right shoulder disability has been rated at 20 percent disabling since September 2, 2010, under the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5003-5201. The Veteran filed a claim for an increased rating on May 28, 2013, for progressive worsening of his right shoulder condition.

Disabilities and injuries of the shoulder are evaluated under DC 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71 (a). The evidence establishes the Veteran is left-handed, so the right shoulder disability is rated for impairment of the minor upper extremity.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the right shoulder is currently rated for degenerative arthritis under DC 5003.

As an initial matter, effective February 7, 2021, VA amended the rating criteria for disabilities of the shoulder and arm. DC 5003 was not amended, other than revising the title to "Degenerative arthritis, other than post-traumatic". 38 C.F.R. § 4.71a, DC 5003.

Prior to February 7, 2021, under DC 5201, for the minor side, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 20 percent rating is also warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

Effective February 7, 2021, DC 5201 was revised to clarify that loss of motion of the arm includes flexion or abduction and now provides specific range
C.F.R. § 4.71a, DC 5003.

Effective February 7, 2021, DC 5201 was revised to clarify that loss of motion of the arm includes flexion or abduction and now provides specific range of motion measurements for the ratings. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5201, 5202).

These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation, if the prior version was in effect during the pendency of the appeal.

In this case, as the Veteran's claim was pending prior to February 7, 2021, his claims will be considered under both the old and new rating criteria for his right shoulder disability.

Under the revised criteria for DC 5201, for the minor side, a 20 percent rating is warranted for limitation of arm motion to shoulder level (flexion and/or abduction limited to 90 degrees); a 20 percent rating is also warranted for limitation of arm motion to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a maximum 30 percent rating is warranted for flexion and/or abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I.

Generally, both measurements of forward flexion and abduction are relevant to determine range of motion in the affected shoulder for the purpose of applying DC 5201.

The Veteran was provided a VA examination in March 2014. At that examination, the Veteran reported continual aching right shoulder discomfort that becomes sharp, and needle like with just about any movement. The Veteran also reported that he has not been able to raise the right arm overhead for the last six months. He reported flare-ups where he was unable to lift his arms overhead without pain and popping in joints. The examiner documented flexion to 110 degrees, abduction to 90 degrees, external rotation to 45 degrees and internal rotation to 40 degrees, with no objective painful motion. The examiner noted no difference after flare-ups. Further, the examiner noted weakness, functional loss and pain on movement with an inability to raise the right arm overhead and to use shoulders in a repetitive manner. There was pain with palpation of the right anterior shoulder, but muscle strength testing was 5/5 with no instability. Further, the examiner noted no ankylosis.

In a September 2014 orthopedic surgery note, the provider noted the right shoulder is tender to palpitation with increased pain with forward flexion and abduction. The provider documented forward flexion to 90 degrees, noting that the Veteran can go beyond that only passively. Further, he documented increased pain with internal and external rotation. See September 30, 2014, Orthopedic Surgery Note.

In a December 2015 occupational therapy consult, the provider documented flexion to 30 degrees, abduction to 40 degrees, internal rotation to 30 degrees and external rotation to 45 degrees. The Veteran reported pain 9/10. The provider was unable to test strength due to pain and limited movement.

The Veteran attended a VA examination in October 2016, but no tests were performed because the Veteran had right shoulder rotator
with forward flexion and abduction. The provider documented forward flexion to 90 degrees, noting that the Veteran can go beyond that only passively. Further, he documented increased pain with internal and external rotation. See September 30, 2014, Orthopedic Surgery Note.

The Veteran attended a VA examination in October 2016, but no tests were performed because the Veteran had right shoulder rotator cuff surgery the previous month.

The Veteran was provided a VA examination in July 2022. At that examination, the Veteran reported constant right shoulder pain and moderate functional loss with repetitive use due to pain. The Veteran also reported that he experienced flare-ups on a weekly basis that would last 24 hours where the Veteran was unable to reach over his head with his right arm. The flare-ups were exacerbated by overuse. The examiner documented flexion to 90 degrees, abduction to 90 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees with objective evidence of pain on active motion. Repetitive use testing resulted in flexion to 60 degrees, abduction to 60 degrees, internal rotation to 80 degrees, and external rotation to 80 degrees with objective evidence of pain on active motion.

Receipt of a 30 percent rating under Diagnostic Code 5201 for the minor joint requires limitation of motion to 25 degrees from the side. The evidence of record, as fully documented above, does not show that at any time during the appeal period the Veteran exhibited this level of impairment. Further, the Veteran testified at the August 2021 hearing that he is unable to lift his arm above his shoulder without pain and popping in his joints. His statements are consistent with the September 2014 and July 2022 VA examination which shows he has 90 degrees flexion and abduction. Throughout the entire period on appeal, the Veteran has consistently reported that he is able to raise his arm to shoulder level, but not any further, which suggests that the right arm, does not exhibit limitation of motion to 25 degrees from the side. In reaching this conclusion, the Board has considered the Veteran's functional impairment during flare-ups.

Though the evidence of record does not warrant a higher rating under Diagnostic Code 5201, the Board will take into consideration the applicability of other diagnostic codes. However, the evidence does not reflect ankylosis. See 38 C.F.R. § 4.71a, DC 5200. The Board acknowledges that the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can nevertheless satisfy the criteria for a rating based on ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position").

The Veteran also has not been shown to have deformity of the humerus of the left shoulder, and therefore, a higher rating under DC 5202 is not warranted.

Additionally, the Board notes that there is no evidence of an impairment of the clavicle or scapula. Accordingly, a separate, additional rating under DC 5203 is not warranted.

Further, the Veteran has the maximum compensable rating, 20 percent, under DC 5003 degenerative arthritis, other than post-traumatic.

The Veteran has not been shown to meet the criteria for a higher or separate rating for his right shoulder disability under any appropriate diagnostic code.

The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the shoulder and arm, including Diagnostic Code 5201 for which the Veteran receives his current rating. The Board finds that the 20 percent rating contemplates these symptoms. Taking into account the evidence of record indicating the Veteran's regular complaints of pain, stiffness, and weakness and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulting in limitation of motion to 25 degrees from the
has not been shown to meet the criteria for a higher or separate rating for his right shoulder disability under any appropriate diagnostic code.

The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the shoulder and arm, including Diagnostic Code 5201 for which the Veteran receives his current rating. The Board finds that the 20 percent rating contemplates these symptoms. Taking into account the evidence of record indicating the Veteran's regular complaints of pain, stiffness, and weakness and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulting in limitation of motion to 25 degrees from the side to establish entitlement to a 30 percent rating. Thus, a higher rating than 20 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not warranted.

In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the persuasiveness of the evidence weighs against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable and his increased rating claim for right shoulder disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

R.R. Watkins

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Navin, N. M.

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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