BONE MALUNION OR NONUNION

FREDERIC P. GALLUN · 2026 · Case ID: A26019881

MIXED

Summary

The veteran, who served from August 1966 to February 1968, appeals the denial of an increased rating for right shoulder acromioclavicular joint osteoarthritis, status post rotator cuff repair, and the denial of an increased rating for residuals of shrapnel in the right shoulder. The Board granted an increased rating to 30 percent for residuals of shrapnel in the right shoulder, finding the disability moderately severe. The veteran's initial injury involved shrapnel to the right shoulder during demolition training, with minimal initial treatment. Later, a rotator cuff tear and osteoarthritis developed, with surgical repair and ongoing pain and functional limitations. The VA examiner noted muscle weakness, pain with activity, and limitations in lifting and overhead movements, consistent with a moderately severe muscle injury. The Board found that while the veteran experienced pain and functional limitations, the recorded range of motion did not meet the criteria for a rating higher than 20 percent under Diagnostic Code 5201 for osteoarthritis. The Board denied the increased rating for osteoarthritis, concluding the evidence did not warrant a rating beyond 20 percent.

Rationale

Evidence supports moderately severe muscle disability under DC 5303; Presence of metallic foreign bodies and objective findings of weakness and tenderness; Functional limitations impacting work requirements and daily activities

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5303

Docket No.

250829-580595

Full Decision Text

Citation Nr: A26019881
Decision Date: 03/05/26 Archive Date: 03/05/26

DOCKET NO. 250829-580595
DATE: March 5, 2026

ORDER

Entitlement to an increased rating to 30 percent, but no higher, for residuals of shrapnel, right shoulder is granted.

Entitlement to an increased rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis, status post rotator cuff repair is denied.

FINDINGS OF FACT

1. The Veteran's residuals of shrapnel, right shoulder manifested as a moderately severe disability.

2. The Veteran's right shoulder acromioclavicular joint osteoarthritis, status post rotator cuff repair is manifested by limitation of the arm to 90 degrees of flexion and abduction.

CONCLUSIONS OF LAW

1. The criteria for a 30 percent rating, but no higher, for residuals of shrapnel, right shoulder, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.55, 4.56, 4.69, 4.73; Diagnostic Code (DC) 5303.

2. The criteria for entitlement to an increased rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis, status post right shoulder rotator cuff repair are not 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 August 1966 to February 1968. The Board recognizes the Veteran's service to our country, and the sacrifices it necessarily entailed.

The rating decision on appeal was issued in July 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As an initial matter, the Veteran has identified an April 2024 rating decision as an additional rating decision that he disagrees with. See Notification Letter, April 23, 2024. The July 2025 Notice of Disagreement was filed more than one year after the date on the Notification letter. Therefore, the Board cannot review the April 2024 rating decision due to the untimeliness of the Notice of Disagreement unless there is a demonstration by the Veteran of good cause for the untimeliness.

Increased Ratings

The Veteran seeks an increased rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis, status post right shoulder rotator cuff repair, and residuals of shrapnel, right shoulder. The Board has included as the period on appeal the one-year look back period prior to January 24, 2025, and the Board will consider such evidence of record during that one-year period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Separate evaluations may
included as the period on appeal the one-year look back period prior to January 24, 2025, and the Board will consider such evidence of record during that one-year period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show a distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.) Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3.

Findings and Evidence

Demolition training sometime between 1966 and 1968 ended with a premature explosion that left scrap metal in the Veteran's right shoulder, and use of a first aid kit removed only one piece. The Veteran did not seek treatment for this injury. See VA 21-4138 Statement In Support of Claim, November 1, 2023.

Years later, an arthrogram documented right shoulder pain following a lifting injury by November 2009, showing small metallic fragments in the soft tissues and findings consistent with a full thickness rotator cuff tear. Imaging performed during the same period described artifact from metallic foci in the anterior soft tissues, a small full thickness tear at the anterior insertion of the supraspinatus, and acromioclavicular osteoarthritis. See Medical Treatment Record - Non-Government Facility, October 31, 2023. An operative report created later that year recorded a large, retracted rotator cuff tear with impingement syndrome, noted that the Veteran fell at work and injured his right shoulder, experienced weakness, and then underwent surgical repair. See Medical Treatment Record - Non-Government Facility, December 5, 2023.

The Veteran's occupational history reflected service as a mechanic for his "whole life" by October 2023. See CAPRI, April 20, 2024. Right shoulder radiographs showed a metallic foreign body in the soft tissues, status post rotator cuff repair, osteopenia, osteoarthritic changes worst at the right acromioclavicular joint, and bilateral rotator cuff pathology. See Medical Treatment Record - Non-Government Facility, October 31, 2023. Reports created early the next month indicated shrapnel present in the right shoulder since 1966 without pain or discomfort at that time, along with clinical guidance that penetrating soft tissue injuries generally did not require shrapnel excision because such fragments typically remained inert and did not cause damage when left in soft tissue. See CAPRI, November 7, 2023.

A VA examination and DBQ completed during March 2024 recorded left hand dominance; use of over the counter Tylenol for pain; a right shoulder muscle injury involving Group IV; an entrance scar and a postoperative scar following rotator cuff repair; some impairment
pathology. See Medical Treatment Record - Non-Government Facility, October 31, 2023. Reports created early the next month indicated shrapnel present in the right shoulder since 1966 without pain or discomfort at that time, along with clinical guidance that penetrating soft tissue injuries generally did not require shrapnel excision because such fragments typically remained inert and did not cause damage when left in soft tissue. See CAPRI, November 7, 2023.

A VA examination and DBQ completed during March 2024 recorded left hand dominance; use of over the counter Tylenol for pain; a right shoulder muscle injury involving Group IV; an entrance scar and a postoperative scar following rotator cuff repair; some impairment of muscle tonus; consistent muscle weakness with occasional fatigue or pain; abduction strength of 4/5 (Group III) without muscle atrophy; and X ray evidence of metallic fragments. The examiner detailed symptoms that occurred primarily with increased activity, including right shoulder pain, an inability to lift heavy objects, loss of strength, and a popping noise with arm motion, all managed with Tylenol as needed and a heating pad, with household work aggravating symptoms and requiring rest. Flare ups occurred two to three times per month, were moderate, lasted 30-40 minutes, were precipitated by exertional tasks such as chores, reaching overhead, or carrying objects.

Range of motion testing documented full motion bilaterally with pain on right shoulder flexion and abduction, and evidence of pain on weight bearing, nonweight bearing, and active motion, which the examiner stated did not result in functional loss. Palpation showed mild pain or tenderness rated 3/10 at the right anterior shoulder, related to residuals of shrapnel, postoperative rotator cuff repair, acromioclavicular joint osteoarthritis, and osteopenia. After three repetitions, no additional loss of motion occurred; repetitive use over time produced full range of motion but increased pain; and flare ups reduced flexion and abduction to 170 degrees with increased pain. The examiner also documented functional impact affecting work tasks requiring overhead movement and abduction of the right shoulder and opined that shrapnel in the right shoulder would lead to rotator cuff tear, acromioclavicular joint osteoarthritis, and potentially osteopenia due to soft tissue damage, cartilage breakdown, and bone or blood supply disruption. See C&P Exam, March 18, 2024.

Right shoulder X ray imaging corresponded with anterior shoulder pain in the upper chest wall and anterior shoulder region by January 2025, showing moderate osteoarthrosis, postoperative rotator cuff repair, suspected metallic foreign body in the soft tissues, and osteopenia. Clinical notes created the same day described a 79 year old male with pain inferior to the clavicle, postoperative rotator cuff repair with incidental shrapnel on X ray, point tenderness inferior to the clavicle, range of motion to 120 degrees with pain and stiffness beyond that range, and a characterization of the condition as subacute with a reported date of injury in 2007. Additional reports from that appointment documented chronic, intermittent right shoulder pain rated 7/10 without any recent falls, pain over the past several months in the anterior shoulder and upper chest wall region, and that the Veteran wrote with his left hand and identified himself as ambidextrous. See CAPRI, February 3, 2025.

Orthopedic consultation notes described long standing right anterior chest pain attributed to an injury sustained in the 1960s with shrapnel removal, improvement in shoulder pain after the 2009 rotator cuff repair, and increasingly bothersome anterior chest pain over the prior three to four years, with activities such as housework or playing with grandchildren producing discomfort despite no significant effect on activities of daily living. The notes recorded that Tylenol was ineffective, formal physical therapy had provided limited benefit, and a home exercise program performed three to four times weekly offered some improvement. Examination findings included mild tenderness over the acromioclavicular joint, moderate tenderness over the coracoid and anterolateral chest near the pectoralis by the axilla, normal distal sensation, warm fingers, and shoulder strength of 5/5 for forward flexion, abduction, and external rotation. Musculoskeletal assessment showed forward flexion of 90 degrees, abduction of 90 degrees, with radiographs demonstrating mild degenerative changes about the glenohumeral and acromioclavicular joints and a retained metallic foreign body over the anterolateral shoulder. Surgical intervention was not recommended, and documentation noted worsening right shoulder pain, postoperative status, shrapnel seen on X ray, stiffness, and some limitation in range of motion.
avicular joint, moderate tenderness over the coracoid and anterolateral chest near the pectoralis by the axilla, normal distal sensation, warm fingers, and shoulder strength of 5/5 for forward flexion, abduction, and external rotation. Musculoskeletal assessment showed forward flexion of 90 degrees, abduction of 90 degrees, with radiographs demonstrating mild degenerative changes about the glenohumeral and acromioclavicular joints and a retained metallic foreign body over the anterolateral shoulder. Surgical intervention was not recommended, and documentation noted worsening right shoulder pain, postoperative status, shrapnel seen on X ray, stiffness, and some limitation in range of motion. Occupational status was identified as retired, although the timing of his retirement is not known. Id.

A VA examination during May 2025 noted ambidextrous hand dominance; pain and difficulty lifting and carrying objects; limited right shoulder range of motion; initial active and passive flexion and abduction to 170 degrees with pain; pain on weight bearing and on active and passive range of motion causing functional loss; and crepitus. After three repetitions, flexion and abduction remained 170 degrees, and factors contributing to functional loss included pain, fatigability, and lack of endurance. Estimated range of motion with repetitive use over time remained 170 degrees for flexion and abduction. The examiner found no evidence that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare ups. Additional DBQ findings identified a right sided Group III muscle injury with lowered threshold of fatigue, no scar associated with a muscle injury, right shoulder abduction strength of 4/5, limited range of motion, intermittent pain with active movement, difficulty lifting and carrying objects, and inability to lift the arm overhead. See C&P Exam, July 10, 2025.

1. Entitlement to an increased rating to 30 percent, but no higher, for residuals of shrapnel, right shoulder

The Veteran is currently rated at 20 percent under DC 5303, which includes muscle injuries to the pectoralis major and deltoid muscles of the shoulder girdle (Group III). The factors to be considered in evaluating disabilities related to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55 and 4.56. Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, and severe. 38 C.F.R. § 4.73. An evaluation of a moderate disability corresponds to a 20 percent rating. An evaluation of moderately severe corresponds to a 30 percent rating for the dominant hand or a 20 percent rating for the nondominant hand. A severe evaluation corresponds to a rating of 40 percent for the dominant hand or 30 percent for the nondominant hand.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69.

A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c).

The type of disability associated with a slight muscle disability is a simple wound of muscle without debridement or infection. A history with regard to this type of injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1).

The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by
ial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1).

The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2).

The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3).

The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4).

If present, a severe injury would also show x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4).

The Board notes that assessment of severity under § 4.56 is essentially a totality-of-the-circumstances test, with no single factor controlling in determining whether a muscle injury has caused slight, moderate, moderately-severe or severe disability. Rather, the adjudicator must consider all the factors set forth in the regulations and make determinations based on the facts of the particular case. See Tropf v. Nicholson, 20 Vet. App 317, 324-325 (2006).

Analysis

In analyzing the Veteran's claim and the relevant criteria for muscle injuries, the Board finds that the evidence supports a rating of 30 percent for the Veteran's right shoulder disability under Diagnostic Code 5303 for a moderately severe muscle disability of the dominant hand.

The criteria for a moderately
is essentially a totality-of-the-circumstances test, with no single factor controlling in determining whether a muscle injury has caused slight, moderate, moderately-severe or severe disability. Rather, the adjudicator must consider all the factors set forth in the regulations and make determinations based on the facts of the particular case. See Tropf v. Nicholson, 20 Vet. App 317, 324-325 (2006).

Analysis

The criteria for a moderately severe muscle injury typically involve a deep penetrating wound, prolonged infection, or evidence of intermuscular scarring, alongside consistent complaints of cardinal signs of muscle disability, such as fatigue, pain, and weakness. While the Veteran's service-connected right shoulder condition does include some aspects of these criteria, particularly muscle weakness and fatigue, the presence of multiple metallic foreign bodies observed in x-ray imaging is a notable indicator of a more severe injury. This presence of foreign bodies correlates with a higher level of muscle disability.

Additionally, the objective findings consistently documented throughout the appeals period, such as consistent muscle weakness (4/5 abduction strength) and the presence of mild to moderate tenderness, suggest a disability that exceeds the moderate category. The Veteran's occupational history as a mechanic indicates a significant work-related impact, with limitations in his ability to lift heavy objects and perform overhead tasks, evidencing an inability to keep up with work requirements as per the criteria for a moderately severe muscle disability. The Veteran's functional limitations, pain management needs, and flare-ups further support this finding.

On the other hand, the brief treatment and return to duty after the initial shrapnel injury, as well as manageability of the condition with over-the-counter medication, somewhat temper the severity of the overall disability. However, these factors do not entirely diminish the impact of the identified moderately severe aspects of the condition. While the evidence does not fully satisfy the criteria for a severe muscle injury, it does align more closely with a moderately severe rating, when balanced against the criteria for slight and moderate disabilities.

Considering the totality of the Veteran's symptoms, work impact, and the presence of multiple foreign bodies as seen on x-ray imaging, the evidence supports a finding that the Veteran's right shoulder disability exhibits numerous factors indicative of a moderately severe muscle injury. Therefore, the Board concludes that the Veteran is entitled to a 30 percent rating for residuals of shrapnel in the right shoulder. The balance of evidence indicates that the severity of the Veteran's service-connected condition more nearly approximates the criteria for a moderately severe muscle injury, warranting an increased disability rating.

2. Entitlement to an increased rating in excess of 20 percent for right shoulder acromioclavicular joint osteoarthritis, status post right shoulder rotator cuff repair

The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. 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 to 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
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 to 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 [V]eteran's disability, after which a rating is determined based on the § 4.71a criteria.")

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).

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.

Analysis

The Veteran's request for an increased rating in excess of 20 percent for the right shoulder acromioclavicular joint osteoarthritis, status post right shoulder rotator cuff repair, has been thoroughly reviewed. The consideration period includes the one-year look back prior to January 24, 2025. The primary evidence suggests the Veteran experiences significant pain and functional limitations, impacting his ability to lift heavy objects, perform overhead movements, and engage in activities involving extended use of the right shoulder.

Throughout multiple evaluations and diagnostic assessments, the findings consistently reflect that the Veteran's shoulder motion is limited, accompanied by pain, tenderness, and occasional flare-ups. Examining the records, it is evident that symptoms such as limited flexion and abduction, pain on active and passive motion, and other factors like fatigability and lack of endurance during repetitive use and flare-ups, affect the Veteran's functionality.

Under the amended Diagnostic Code 5201, a higher rating would require limitation of motion to a more severe degree. Although the Veteran experiences pain and functional impairment, the recorded range of motion measurements, such as flexion and abduction to 90 degrees or more, generally do not reach the thresholds required for a rating in excess of 20 percent. At no point does the evidence show that the motion is limited to 45 degrees or significantly less on repeated testing, whether under normal conditions or during flare-ups.

Considering 38 C.F.R. §§ 4.40 and 4.45, which address functional loss caused by pain and other related factors like weakened movement, excess fatigability, and incoordination, the rating assigned should reflect these impacts to understand the nature of the Veteran's disability. Still, the evaluation itself is inherently based on the extent of motion limitation as specified by 38 C.F.R. § 4.71a. This functional impairment, as described, does contribute to the Veteran's disability, but it does not suffice to warrant an increased rating, as the motion is not limited beyond the degrees required for a higher rating under
degrees or significantly less on repeated testing, whether under normal conditions or during flare-ups.

Moreover, the examinations did not consistently document a limitation of motion severe enough after repetitive use or during flare-ups to meet the criteria for a rating higher than 20 percent. While the Veteran's condition does exhibit some level of additional functional loss during flare-ups or with repeated use over time, the overall limitation of motion does not meet the threshold for a higher rating.

Despite the challenges posed by ongoing pain and functional limitations, the weight of evidence indicates that the severity of the right shoulder condition does not justify an increased rating beyond 20 percent. Given the findings and the regulatory criteria, the benefit of the doubt doctrine does not alter this outcome, leading to the conclusion that the Veteran is not entitled to a rating in excess of 20 percent for the right shoulder acromioclavicular joint osteoarthritis, status post right shoulder rotator cuff repair.

Frederic P. Gallun

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Chris Bumgarner, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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