SHOULDER IMPAIRMENT OF

L. M. BARNARD · 2026 · Case ID: A26029417

DENIED

Summary

The veteran, who served from December 1992 to January 1993, appeals the denial of increased disability ratings for rheumatoid arthritis affecting nine joints: left shoulder, right shoulder, cervical spine, left ankle, right ankle, right great toe, left elbow, right elbow, and right index finger. The Board reviewed the evidence of record at the time of the October 2024 AOJ decision, as the veteran filed a VA Form 10182 for direct review in July 2025. The Board noted that any evidence submitted after the AOJ decision could not be considered and advised the veteran to file a Supplemental Claim for such evidence. The veteran also attempted to raise issues regarding left and right knee instability, but these were not accepted for review as the veteran had already requested a higher-level review of these issues. The Board analyzed the evidence for each of the nine affected joints. For the left and right shoulders, the Board found that the criteria for an initial rating exceeding 20% were not met, as the veteran experienced only mild limitation with pain during flares. For the cervical spine, the Board found that the criteria for ratings exceeding 10% or 20% from May 5, 2021, were not met, noting only some limitation with pain during flareups. Similar findings were made for the ankles and right great toe, where pain on walking during flareups did not meet the criteria for ratings exceeding 10%. For the elbows, mild limitation with pain during flareups did not meet the criteria for ratings exceeding 10%. For the right index finger, the veteran met the criteria for a 10% rating as of May 5, 2021, but not higher. Consequently, all claims for increased ratings were denied.

Rationale

No rating in excess of 20% granted; Mild limitation of motion with pain during flares

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5002

Docket No.

250706-562698

Full Decision Text

Citation Nr: A26029417
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 250706-562698
DATE: April 1, 2026

ORDER

An initial disability rating in excess of 20 percent for rheumatoid arthritis affecting the left shoulder is denied.

An initial disability rating in excess of 20 percent for rheumatoid arthritis affecting the right shoulder is denied.

An initial disability rating in excess of 10 percent and a disability rating in excess of 20 percent from May 5, 2021, for rheumatoid arthritis affecting the cervical spine is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the left ankle is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the right ankle is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the right great toe is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the left elbow is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the right elbow is denied.

An initial disability rating in excess of 10 percent for rheumatoid arthritis affecting the right index finger is denied.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran has had entirely normal left shoulder function except during flares, when it is estimated that he would lose 10 degrees of motion with pain.

2. Throughout the appeal period, the Veteran has had entirely normal right shoulder function except during flares, when it is estimated that he would lose 10 degrees of motion with pain.

3. Prior to May 2021, the veteran had full range of cervical spine motion even during flareups when he experienced pain on motion; from May 2021, the evidence shows he experienced some limitation of motion with pain on flareups.

4. The veteran experiences left ankle pain on walking during flareups.

5. The veteran experiences right ankle pain on walking during flareups.

6. The veteran experiences pain in the right great toe on walking during flareups.

7. The veteran experiences pain and mild limitation of motion in the left elbow during flareups.

8. The veteran experiences pain and mild limitation of motion in the right elbow during flareups.

9. The Veteran first reported flareup pain in his right index finger during the May 2021 VA examination.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 20 percent for impairment of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5201.

2. The criteria for an initial disability rating in excess of 20 percent for impairment of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002,

3. The criteria for an initial disability rating in excess of 10 percent and a disability rating in excess of 20 percent from May 5, 2021, for impairment of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5237.

4. The criteria for an initial disability rating in excess of 10 percent for impairment of the left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5271.

5. The criteria for an initial disability rating in excess of 10 percent for impairment of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5271.

6. The criteria for an initial disability rating in excess of 10 percent for impairment of the right great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5284.

7. The criteria for an initial disability rating in excess of 10 percent
percent for impairment of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5271.

7. The criteria for an initial disability rating in excess of 10 percent for impairment of the left elbow have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5206.

8. The criteria for an initial disability rating in excess of 10 percent for impairment of the right elbow have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5206.

9. The criteria for an initial disability rating in excess of 10 percent for impairment of the right index finger have not been met; the criteria for a 10 percent disability rating but no higher, have been met as of May 5, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.59, 4.71a Diagnostic Codes 5002, 5229.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1992 to January 1993, when he was separated for failure to meet the physical standards necessary for enlistment.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2024 decision by the Agency of Original Jurisdiction, which implemented a September 2024 Board decision which granted service connection for rheumatoid arthritis affecting the nine joints at issue here. The Veteran filed a VA Form 10182 in July 2025. He requested direct review by a Veterans Law Judge.

Therefore, the Board may only consider the evidence of record at the time of the October 2024 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran included two additional issues on the July 2025 VA Form 10182: increased disability ratings for left and right knee instability with genu varum arising from an October 2024 AOJ decision. Unfortunately, the Board cannot accept these two issues for review, because the Veteran previously requested higher level review of these issues in a January 2025 form. Appeal to the Board and higher level review by the AOJ are two options when a claimant disagrees with an AOJ decision. However, once a claimant takes one of these actions, the claimant may not take another action until the first has been adjudicated. 38 U.S.C. § 5104C. As the AOJ has not yet addressed the higher-level review request, and the Veteran has not withdrawn the higher-level review request, the Board cannot accept an appeal as to these issues. If the Veteran is not satisfied with the AOJ's higher level review of these two issues, he may appeal to the Board at that time, if he wishes.

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When
AOJ has not yet addressed the higher-level review request, and the Veteran has not withdrawn the higher-level review request, the Board cannot accept an appeal as to these issues. If the Veteran is not satisfied with the AOJ's higher level review of these two issues, he may appeal to the Board at that time, if he wishes.

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021) (en banc).

Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that 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 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1.

All of the disabilities at issue here were claimed in August 2011 on the same theory of entitlement, that the joints involved are afflicted with rheumatoid arthritis, which developed secondary to the service-connected rheumatoid arthritis in both knees. Service connection for rheumatoid arthritis affecting each joint was granted in September 2024, effective in August 2011. Because the Veteran has perfected an appeal as to the assignments of the initial disability ratings, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the October 2024 AOJ decision which implemented the Board's grant and assigned the disability ratings.

Rheumatoid arthritis is rated under the provisions of Diagnostic Code 5002, which sets forth criteria for evaluating multi-joint arthritis as an active process affecting two or more joints. A 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted when there is an active process with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. A 60 percent rating is provided where there is an active process of a severity less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods. A 100 percent rating is warranted for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002.

Although Diagnostic Code 5002 does not define an "incapacitating exacerbation," the term is defined elsewhere in the Rating Schedule, both within the same chapter regarding evaluating disability of the musculoskeletal system, specifically intervertebral disc syndrome, and in the rating schedule regarding the digestive system. As used there, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note (2).

Note (2) of Diagnostic Code 5002 states that chronic residuals should be rated under the provisions of Diagnostic Code 5003 pertaining to degenerative arthritis and Note (3) indicates that the ratings for the active process will not be combined with the residual ratings for
vertebral disc syndrome, and in the rating schedule regarding the digestive system. As used there, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345 and 7354, Note (2).

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as 10 percent disabling with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Rate as 20 percent disabling with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 10 and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Board observes that these provisions of the rating schedule pertaining to multiple joint arthritis and degenerative arthritis have been in effect throughout the time period on appeal.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

A Veteran with a musculoskeletal disability may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule. VA may increase an evaluation where there is evidence that a service-connected musculoskeletal disability causes either (1) additional functional loss i.e., "the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain or other factors, or (2) reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); Mitchell v. Shinseki, 25 Vet. App. 32
where there is evidence that a service-connected musculoskeletal disability causes either (1) additional functional loss i.e., "the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain or other factors, or (2) reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. §§ 4.40, 4.45; Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011). A complete evaluation of joint impairment must include testing for pian on active and passive motion, during weight-bearing, and non weight-bearing situations. Correia v. McDonald, 28 Vet. App. 158 (2016). When evaluating functional loss under these factors, the Board must also consider loss that follows repetitive use or happens during flare-ups. Lyles v. Shinseki, 29 Vet. App. 107, 117-18 (2017).

In every instance where the rating schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

Recognizing the length of time this appeal covers, the Board acknowledges inadequacies in prior examination reports regarding findings for passive range of motion and estimating motion loss during flares. All examination reports within the appeal period are adequate for basic active range of motion findings. The examinations since 2020 comply with Sharp, and Correia. The Board has applied the valid Correia and Sharp findings for the entire appeal period. Additionally, the Board has considered the most favorable overall Correia and Sharp findings found in the record. Notably, passive range of motion findings do not more nearly approximate the criteria for greater disability ratings.

In this case, the AOJ identified either limitation of motion or painful motion of each of the joints involved. Furthermore, the evidence of record does not reflect the traditional exacerbations seen in rheumatoid arthritis, or weight loss and anemia productive of severe impairment of health, or constitutional manifestations. Therefore, rating each joint separately as for degenerative arthritis is more beneficial for the Veteran.

It is important to note that although the Veteran reports to the VA healthcare system for regular blood tests, he refuses most treatments and medical advice. Many of his healthcare consultations were conducted over the phone and do not reflect physical, clinical findings, such as the type of information necessary to apply the governing rating criteria. Most of the many medical opinions generated with regard to the service connection questions not at issue here were generated based on records review rather than clinical examination. As a consequence, there is relatively little information upon which to base the necessary disability ratings over the years, with more detailed information grossly lacking between 2011 and 2020.

The general information pertaining to his overall complaints is summarized here and the individual joint ratings are discussed below.

During a November 2011 VA examination performed specifically to evaluate his knees, which as explained above are not on appeal here; the examiner observed more generally that the Veteran's gait was normal and that he was able to walk from one to three miles. Upon examination, there were no constitutional symptoms of arthritis, no inflammatory arthritis, and no incapacitating episodes of arthritis. The Veteran denied experiencing flareups in his knees. There were no complaints or findings involving other joints.

During an October 2017 phone call regarding the Veteran's stress levels and how to manage them, he reported that he undertook about five days (presumably out of seven days in a week) of moderate to vigorous activity, with an average twenty minutes of exercise each day.

During a March 2020 primary care visit, the caregiver noted the Veteran's history of having rheumatoid arthritis but noted the Veteran did not seem to have any deformity or loss of function. The Veteran declined a referral for a rheumatology consultation.

During a February 2021 phone call, the Veteran reported that he can normally handle the stiffness in his joints between 'attacks' through diet and lifestyle. Upon clinical examination during a March 2021 rheumatology consultation, the Veteran had no synovitis in either hand, fingers, wrists, elbows, shoulders, or ankles.

The report of a May 2021 non-degenerative arthritis examination shows that the Veteran's rheumatoid factor as tested in 2013 was negative, and his antinuclear antibody test results were weakly positive, which the examiner commented was not
but noted the Veteran did not seem to have any deformity or loss of function. The Veteran declined a referral for a rheumatology consultation.

The report of a May 2021 non-degenerative arthritis examination shows that the Veteran's rheumatoid factor as tested in 2013 was negative, and his antinuclear antibody test results were weakly positive, which the examiner commented was not clinically significant. Test results from March 2020 showed that his sedimentation rate was normal, his rheumatoid factor remained negative, and his antinuclear antibody screen was negative. At the time of the examination the Veteran was not taking any medication except aspirin for pain. He had not lost weight, did not have anemia. He reported joint pain with occasional swelling in his neck, bilateral shoulders, bilateral elbows, right index finger, bilateral knees, bilateral ankles, and right big toe. He did not have exacerbations, either non-incapacitating or incapacitating, and did not have constitutional manifestations. There was no impairment of health. The examiner opined that the Veteran's symptoms did not impact his ability to perform any type of occupational task, including standing, walking, or lifting.

Shoulders

A January 2020 X-ray study of both shoulders was interpreted as showing no evidence of erosive changes associated with rheumatoid arthritis. There was no acute fracture or dislocation, the glenohumeral and acromioclavicular joints were preserved, subacromial space was maintained in both shoulders.

The Veteran underwent a VA examination for purposes of compensation in January 2020. He related that he developed bilateral shoulder pain/aching approximately two to three years after his brief period of service. He had a constant level of pain of 8/10 with flaring up to 10/10 in cold weather along with morning stiffness and pain. Nevertheless, he reported no functional loss or functional impairment in the shoulders. He was right hand dominant. Range of shoulder motion was normal bilaterally. He was able to perform repetitive use testing bilaterally with no additional functional loss. There was tenderness to palpation of the shoulder joints, and no crepitus. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over time or with flareups. There was a reduction in shoulder strength bilaterally, with both shoulders at 4/5 upon forward flexion and abduction. There was no muscle atrophy bilaterally. There were no other shoulder impairments such as rotator cuff conditions, instability, dislocation, labral pathology, clavicle, humeral, scapula, acromioclavicular joint or sternoclavicular joint conditions. The examiner reviewed the January 2020 X-ray films and stated no degenerative arthritis was shown. Lastly, the examiner opined that the Veteran would have increased pain with decreased function from recurrent lifting, reaching, pushing, or pulling.

The report of a May 2021 VA examination for purposes of compensation shows that the Veteran reported occasional shoulder joint swelling, with flares involving stiffness in his shoulders about four times a year, lasting several weeks. During a flare, he would be unable to raise his arm above his shoulder. Range of motion showed shoulder motion entirely within normal limits, on active and passive motion, but with pain on motion. The examiner opined that the pain did not result in functional loss, however. The examiner described the Veteran's generalized shoulder pain as "mild." The examiner estimated the loss of motion during a flare-up as 10 degrees in each direction bilaterally. There was no muscle atrophy upon examination, and no ankylosis. Tests for other shoulder impairment such as rotator cuff pathology, were all negative bilaterally. Tests for shoulder instability, dislocation, and labral pathology were also negative bilaterally. X-ray studies performed in February 2021 were interpreted as showing no significant findings and no acute bone or joint abnormality involving the shoulders. The examiner commented that the Veteran would experience difficulty performing tasks requiring pushing, pulling, lifting, and carrying heavy loads during flare-ups.

A September 2022 X-ray study of the right shoulder was interpreted as showing no acute fracture or malalignment and no erosions, with joint spaces maintained. A September 2022 X-ray study of the left shoulder was interpreted as
ankylosis. Tests for other shoulder impairment such as rotator cuff pathology, were all negative bilaterally. Tests for shoulder instability, dislocation, and labral pathology were also negative bilaterally. X-ray studies performed in February 2021 were interpreted as showing no significant findings and no acute bone or joint abnormality involving the shoulders. The examiner commented that the Veteran would experience difficulty performing tasks requiring pushing, pulling, lifting, and carrying heavy loads during flare-ups.

The Veteran's shoulder complaints are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201. These criteria have remained essentially the same throughout the appeal period. During the general revision and update of the musculoskeletal ratings which were proposed in 2017 and became final in 2020, the terms used to evaluate shoulder motion were more precisely defined in terms of degrees of motion. 85 FR 76453 (Nov. 30, 2020). Because the record does not contain precise measurements of the Veteran's shoulder motion prior to 2020, this change does not impact our analysis here.

Limitation of flexion and/or abduction of the Veteran's major arm to 25 degrees from the side is rated as 40 percent disabling. Limitation of flexion and/or abduction of the Veteran's minor arm is rated as 30 percent disabling. Limitation of flexion and/or abduction of the Veteran's major arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 30 percent disabling. Limitation of flexion and/or abduction of the Veteran's minor arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 20 percent disabling. Limitation of flexion and/or abduction of the Veteran's major or minor arm at shoulder level (flexion and/or abduction limited to 90 degrees) is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Shoulder motion is depicted at 38 C.F.R. § 4.71, Plate I, which shows ranges of shoulder flexion and abduction from 0 to 180 degrees.

As noted above, the Veteran is right hand dominant, therefore his right side is his major side.

In applying these criteria to the Veteran's shoulders, we observe that the Veteran's shoulders manifest entirely normal function except during flares, when it is estimated that he would lose 10 degrees of motion. The Veteran himself reported that during a flare he could not lift his arms past his shoulders. As he also reports that his flares occur four times a year, lasting a couple of weeks each time, his shoulder motion is limited about two months a year, non-consecutively. This disability picture fits squarely within the criteria for the minimum provided schedular rating of 20 percent for each shoulder. Nothing in the admittedly scanty medical or lay evidence indicates impairment more nearly analogous to limitation of shoulder motion to 45 degrees or less to support a higher disability rating. The 20 percent rating for each shoulder adequately encompasses the Veteran's generalized mild pain, his intermittent limitation of motion, and any other reduction in function during flareups.

The evidence is against a disability rating in excess of 20 percent for the left shoulder and the right shoulder.

Cervical spine

A January 2013 emergency room report reflects neck and back pain after a car accident when the car he was riding in slid off a snowy road and then was rear-ended after his car had stopped. Upon examination, the Veteran had full range of back motion, with some tenderness and muscle spasm in the lumbar spine. His cervical spine manifested no deformity, full range of motion, and very mild tenderness from C2 to C4.

The report of a January 2020 X-ray study of the cervical spine shows no acute fracture or listhesis. Vertebral body alignment, vertebral body heights, and disc space heights were grossly maintained.

During a January 2020 VA examination for purposes of compensation, the Veteran related a history of recurrent morning neck stiffness/pain daily with flares where the stiffness and pain can last for two to three weeks. This began two to three years after his release from the service. He denied paresthesia, numbness or tingling from his neck to his fingers. He related a constant pain of 8/10 with flares up to 10/10 with cold weather, frequent lifting, turning, or bending of the neck. Range of neck motion was normal upon testing, although with pain on motion. The Veteran was able to perform repetitive use testing with no additional loss of function. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with flare-ups. There was slight generalized tenderness to palpation of the cervical para spinous musculature. There was no guarding or muscle spasm of the cervical spine. Muscle strength was normal with no atrophy. Tendon reflexes and dermatome testing were normal. There was no radicular pain, and no ankylosis. The examiner reviewed the January 2020 X-ray study and determined that no degenerative joint disease was shown. Lastly, the examiner commented that the Veteran's neck pain increased with frequent turning of his head, looking up/down/side to side.

The Veteran underwent a May 2021 VA cervical spine examination for purposes of compensation. The Veteran reported that he had joint pain and was recovering from a flare that was affecting his neck, bilateral shoulders, bilateral elbows. His flares were characterized by stiffness, and a dull pain in his neck. There were no specific triggers, and the flares were alleviated by rest. It was difficult for him to bend and turn his neck during a flare. Range of motion testing yielded reduced motion of 35 degrees of forward flexion, 35 degrees of extension, 35 degrees of right lateral flexion, 35 degrees of left lateral flexion, 65 degrees of right lateral rotation, and 65 degrees of left lateral rotation. Pain was apparent on all motions. The Veteran was able to perform repetitive use testing without further loss of function. Passive range of motion testing was not performed to avoid pain or the risk of further injury. There was no evidence of crepitus. There was mild tenderness in the C4 region. The examiner estimated further loss of motion during a flare at forward flexion to 25 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 55 degrees, and left lateral rotation to 55 degrees. There was localized tenderness at C4 that did not result in abnormal gait or abnormal spinal contour. No muscle spasm or guarding was observed. The Veteran reported difficulty bending and rotating his neck during flareups due to pain. Muscle strength was fully normal with no atrophy. Reflexes and dermatome testing were normal, with no radiculopathy. X-ray studies performed in February 2021 were interpreted as unremarkable.

A September 2022 X-ray study of the cervical spine was interpreted as showing no acute fracture or malalignment, no prevertebral soft tissue swelling, and mild degenerative disc disease at C5-7.

The Veteran's cervical spine complaints are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, localized tenderness not resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine is not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis
degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, localized tenderness not resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine is not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present. A 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237.

The AOJ has assigned a staged disability rating with 10 percent assigned from August 2011 for the Veteran's complaints of neck pain. A 20 percent disability rating is assigned from May 2021, reflecting slightly reduced range of motion measurements on the May 2021 VA examination.

With full range of cervical spine motion during the January 2013 emergency room visit and again at the January 2020 VA examination, the minimum rating of 10 percent for pain on motion is appropriate for the first staged rating. Nothing in the evidence of record would support a disability rating higher than 10 percent prior to the May 2021 VA examination.

With cervical forward flexion to 20 degrees during a flare, and combined rating of cervical spine motion of 210 degrees during a flare, as estimated during the May 2021 VA examination, the AOJ determined that a 20 percent disability rating was appropriate. The Board will not disturb this rating. The evidence is against a disability rating in excess of 20 percent for cervical spine impairment from May 2021, however.

Ankles

During a January 2020 VA ankle examination for purposes of compensation, the Veteran reported ankle pain developed two to three years after his brief military service. His pain was constant 8/10 with flares up to 10/10 in cold weather, upon prolonged walking/standing/sitting, and first thing in the morning. He did not identify any functional loss or functional impairment of the ankles. Range of motion testing revealed bilateral ankle motion within normal limits. Pain was observed on motion and with weight bearing, but the pain did not cause functional loss. Both ankles were tender to palpation with minimal edema. Both ankles manifested objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over time. Ankle strength was normal with no atrophy. There was no ankylosis and no ankle instability bilaterally. The examiner observed that the Veteran's bilateral ankle pain caused problems with sitting, standing, walking, and lifting.

A February 2021 X-ray study of both ankles was interpreted as "unremarkable."

During a May 2021 VA ankle examination, the Veteran reported having flares averaging four times a year, lasting for several weeks. The flares involved sharp pain, and had no specific triggers. He stated that it was difficult to walk during flare-ups. Active and passive range of motion studies were entirely normal, with no evidence of pain. There was no evidence of crepitus and no evidence of localized tenderness in either ankle. The Veteran was able to perform repetitive motion with no loss of function. The examiner estimated that during a flare, the Veteran's ranges of bilateral ankle motion would be reduced by 10 degrees in all directions due to pain. The Veteran reported pain caused difficulty walking and standing for long periods of time during flareups. There was no muscle atrophy or ankylosis on examination.

A September 2022 X-ray study of the left ankle was interpreted as showing no acute fracture or malalignment, with joint spaces maintained.

Effective February 7, 2021, the applicable rating criteria for rating limited ankle motion were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally
examiner estimated that during a flare, the Veteran's ranges of bilateral ankle motion would be reduced by 10 degrees in all directions due to pain. The Veteran reported pain caused difficulty walking and standing for long periods of time during flareups. There was no muscle atrophy or ankylosis on examination.

A September 2022 X-ray study of the left ankle was interpreted as showing no acute fracture or malalignment, with joint spaces maintained.

Effective February 7, 2021, the applicable rating criteria for rating limited ankle motion were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the VA must consider all applicable criteria in evaluating the Veteran's claims.

Prior to February 7, 2021, DC 5271 provided that moderate limited motion of the ankle was rated as 10 percent disabling. Marked limited ankle motion was rated as 20 percent disabling. 38 C.F.R. § 4.71a. These are the provisions which apply to the Veteran's case for the entire appeal period.

The terms "moderate" and "marked" were not defined in the Rating Schedule. As such, it is presumed that VA regulations employ words according to their ordinary dictionary readings at the time the regulations were promulgated. Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). In the context of medical definitions, the CAVC has found it appropriate to refer to definitions in the Merriam-Webster dictionary. See, e.g., Holmes v. Wilkie, 33 Vet. App. 67, 71 (2020). Accordingly, the Board will employ the Merriam-Webster dictionary meaning.

According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked.

Plate II set forth in 38 C.F.R. § 4.71 provides a pictorial depiction of ankle motion in dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees.

Recent revisions to the criteria of DC 5271, effective February 7, 2021, clarify that prior regulatory references to "marked" meant less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and that "moderate" meant less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. In proposing this rule, VA indicated that this standard was currently used internally by VA and was being codified "as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." See 82 Fed. Reg. 35719, 35723 (Aug. 1, 2017).

Neither the findings during the January 2020 examination nor the May 2021 VA examination indicates worsening ankle symptomatology to warrant a 20 percent disability rating for either ankle. Rather the Veteran's symptoms of pain on walking during flares are more nearly approximate to moderate limitation of motion for the 10 percent disability rating under either the older criteria or the newer criteria. The evidence is against the award of a disability rating in excess of 10 percent for the left or the right ankle.

Right foot

The report of a January 2020 VA examination shows that the Veteran complained of right great toe pain in the first metatarsal phalangeal joint. The Veteran reported that he had great toe pain with weight bearing. He stated his constant level of pain was 8/10 with flares up to 10/10 with prolonged standing, walking, or attempting to jog. Flare-ups impacted his ability to stand, walk or be on hard surfaces for any length of time. He reported no functional loss or functional impairment, however. Upon clinical examination pain was present, but the examiner opined that pain did not contribute to functional loss, as the pain did not seem to affect the range of motion of the great toe. There was pain on movement, pain on weight-bearing, interference with standing, and lack of endurance. However, pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or upon repetition over time. The examiner opined that the Veteran's right toe pain would impact the length of time the Veteran can stand or walk.

The Veteran underwent a May 2021 VA foot examination. He reported joint pain in his right big toe during flareups. The flareups occurred four times a year, lasting for several weeks each time. They involved throbbing pain in his right big toe with no specific triggers and alleviated by rest. He stated that the pain in his toe caused difficulty walking and standing; he tried to avoid putting pressure on it, so he felt off balance when he had pain in his right big toe. Upon examination the examiner found no significant findings, and described the severity of the issue as mild. The examiner opined that the right great toe flares did not chronically compromise weight-bearing, but would cause disturbance of locomotion, interference with standing, and pain during a flareup. No other functional loss was identified. A February 2021 X-ray of the right foot was interpreted as unremarkable. The examiner summarized that the Veteran only had pain in the toe during flareups, and that there was no pain otherwise, on passive or active motion, weight-bearing or non weight-bearing, or rest/non movement.

A September 2022 X-ray study of the right foot was interpreted as showing no acute fracture or malalignment, no erosions, and mild first metatarsal phalangeal joint degenerative changes.

The Veteran's right big toe complaints are rated under the provisions of Diagnostic Code 5284, which provides a 10 percent rating for moderate foot injuries, a 20 percent for moderately severe foot injuries, and a 30 percent rating for severe foot injuries. When actual loss of use of the foot is present, a 40 percent rating is provided. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The AOJ selected this Diagnostic Code because impairment of a single toe us generally rated as noncompensable under the regulatory rating schedule. For instance, Diagnostic Code 5280 provides for a 10 percent rating only when the impairment is equivalent to amputation of the great toe. Actual amputation of the great toe is rated as 10 percent rating without metatarsal involvement, and 30 percent with the removal of the metatarsal head under Diagnostic Code 5171. 38 C.F.R. § 4.71a.

Regardless of the Diagnostic Code selected, the Veteran's great toe pain does not approximate the criteria for a disability rating in excess of 10 percent. His gait has been deemed normal throughout the appeal period, from the initial November 2011 VA examination through to the May 2021 foot examination. His great toe pain cannot be viewed through any reasonable lens as more disabling than amputation of the toe, or as more disabling than a moderate foot injury. The evidence is against a disability rating in excess of 10 percent for right great toe pain.

Elbows

The Veteran's elbows were examined in person during a January 2020 VA examination for purposes of compensation. The Veteran reported that he began having elbow pain a couple of years after his brief military service. He reported multiple joint pain just about every morning and when the weather turned cold. He denied rashes or swelling. His constant level of pain was 8/10 with flares up to 10/10 with use of his elbows or with the onset of cold weather.
be viewed through any reasonable lens as more disabling than amputation of the toe, or as more disabling than a moderate foot injury. The evidence is against a disability rating in excess of 10 percent for right great toe pain.

Elbows

The Veteran's elbows were examined in person during a January 2020 VA examination for purposes of compensation. The Veteran reported that he began having elbow pain a couple of years after his brief military service. He reported multiple joint pain just about every morning and when the weather turned cold. He denied rashes or swelling. His constant level of pain was 8/10 with flares up to 10/10 with use of his elbows or with the onset of cold weather. He did not report any functional loss or functional impairment of the elbows, however. He is right hand dominant.

Range of motion studies in January 2020 were entirely normal bilaterally. Although there was pain observed on the examination, the pain did not cause functional loss. The Veteran was able to perform repetitive use testing with no additional loss. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. There was tenderness to palpation, but no swelling bilaterally. No crepitus was observed. Strength was normal with no muscle atrophy bilaterally. There was no flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation.

The Veteran underwent a May 2021 VA elbow examination in person. He reported occasional swelling in both elbows with flares averaging four times a year, lasting for several weeks. The flares were characterized by dull aching pain in his elbows, with no specific triggers and alleviated by rest. It was difficult to bend his elbows during a flare. The Veteran complained of pain on all elbow motions in every direction. Range of motion studies yielded entirely normal motion bilaterally, however. The examiner noted evidence of pain on active and passive motion, but opined that the pain did not cause functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function bilaterally. Similarly, there was no loss of function with repeated use over time. There was no crepitus. There was mild localized tenderness on palpation of both elbows. The examiner estimated that pain would cause limitation of motion during flare-ups with flexion limited to 135 degrees, extension to 0 degrees, forearm supination limited to 75 degrees, and forearm pronation limited to 70 degrees bilaterally. There was no muscle atrophy or ankylosis. The examiner reviewed a February 2021 X-ray study and interpreted it as showing no degenerative arthritis in either elbow. The examiner concluded the report by emphasizing that the Veteran would have difficulty performing tasks requiring pushing, pulling, lifting, and carrying heavy loads during flareups.

A September 2022 X-ray study of the right elbow was interpreted as showing no acute fracture or malalignment, no joint effusions or erosions, and maintained joint spaces. A September 2022 X-ray study of the left elbow was interpreted as showing no acute fracture or malalignment and no joint effusion.

The Veteran's elbow complaints are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5206, with 10 percent assigned to each elbow for pain during flare-ups. Diagnostic Code 5206 provides for ratings from 10 percent to 50 percent for limitation of flexion between 110 degrees and 45 degrees for the major elbow. Disability ratings from 0 percent to 40 percent are provided for the minor elbow. Diagnostic Code 5207 provides for limitation of elbow extension. 38 C.F.R. § 4.71a. Elbow motion is depicted at 38 C.F.R. § 4.71, Plate I.

In this case, the evidence shows that Veteran's only limitation of motion occurs during the four times a year flareups, and the greatest limitation of motion shown during the appeal period is the estimated 135 degrees of flexion during flareups. Even if this amount of limitation were present all the time, the Veteran's elbows would merit a noncompensable disability rating under the rating schedule. Thus, the 10 percent disability rating assigned to each elbow is assigned for the pain present during flareups. 38 C.F.R. § 4.59. There is no ascertainable basis for the assignment of a greater disability rating for either elbow at any point during the appeal period. The evidence is against a disability rating in excess of 10 percent for impairment of the right elbow or
of motion occurs during the four times a year flareups, and the greatest limitation of motion shown during the appeal period is the estimated 135 degrees of flexion during flareups. Even if this amount of limitation were present all the time, the Veteran's elbows would merit a noncompensable disability rating under the rating schedule. Thus, the 10 percent disability rating assigned to each elbow is assigned for the pain present during flareups. 38 C.F.R. § 4.59. There is no ascertainable basis for the assignment of a greater disability rating for either elbow at any point during the appeal period. The evidence is against a disability rating in excess of 10 percent for impairment of the right elbow or the left elbow.

Right index finger

When the Veteran reported for a "Hand and Finger Conditions" examination for purposes of compensation in January 2020, he stated that his thumb joints were painful. He did not make any complaints involving his right index finger. However, the examiner performed range of motion exercises for the entire hand. The right index finger manifested normal motion, as did all fingers. The first metacarpal joint was tender to palpation with some sponginess of the metacarpal phalangeal capsule. There was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion. Hand grip testing was normal, with no muscle atrophy. The examiner opined that thumb/index finger pain would interfere with the Veteran's ability to grasp, lift, push/pull or twist items with his right hand.

According to the report of a May 2021 VA "Hand and Fingers" examination, the Veteran had flareups in his right index finger four times a year. The flares involved sharp pain in the finger, with no specific triggers and alleviated by rest. The examiner characterized the severity of the flares as moderate, and noted that it was difficult to grip and grab objects during a flare. Upon examination, the right index finger manifested normal active and passive motion, as did all fingers. There was no pain on motion. There was no gap between the finger and the proximal transverse crease of the hand on maximal finger flexion. The Veteran was able to perform repetitive use testing with no loss of motion. The examiner estimated that pain and weakened movement during a flareup would reduce finger motion by approximately 10 degrees, at each joint of the index finger. Right hand and finger muscle strength were normal, with no atrophy. There was no ankylosis. The examiner reviewed a February 2021 X-ray study and interpreted it as showing no degenerative arthritis. In conclusion, the examiner opined that the Veteran would have difficulty with tasks requiring gripping during flareups.

A September 2022 X-ray study of the right hand was interpreted as showing no acute fracture or malalignment and no erosions, with joint spaces maintained.

The Veteran's right index finger complaints are rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5002-5229.

The Board finds this disability rating to be improper and possibly erroneous for two reasons. Diagnostic Code 5002 provides for rating multi-joint exacerbations, rather than ratings for individual joints, such as a finger. If the Veteran's situation were to be rated under the provisions of Diagnostic Code 5002, he would receive a maximum 20 percent rating at most for all of the joints at issue. As explained above, the AOJ chose NOT to rate the Veteran's rheumatoid arthritis under the provisions of Diagnostic Code 5003 which allow for separate rating of the individual joints affected.

Diagnostic Code 5229 provides a 10 percent disability rating for limitation of index finger motion when flexion is so limited as to cause a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, or when extension of the finger is limited by more than 30 degrees. Otherwise, Diagnostic Code 5229 explicitly provides a zero or noncompensable disability rating when flexion or extension is greater. Ten percent is the highest schedular disability rating provided under Diagnostic Code 5229. 38 C.F.R. § 4.71a.

In this case, the Veteran's right index finger motion is greater than that provided for the 10 percent disability rating even under the worst of circumstances during flareups. It would appear that the AOJ was attempting to give the Veteran the minimum compensable rating because of the pain he experiences in his finger during flareups. 38 C.F.R. § 4.59.

In this case, the Veteran first reported pain in his right index finger during
Diagnostic Code 5229 explicitly provides a zero or noncompensable disability rating when flexion or extension is greater. Ten percent is the highest schedular disability rating provided under Diagnostic Code 5229. 38 C.F.R. § 4.71a.

In this case, the Veteran first reported pain in his right index finger during the May 2021 VA examination. He had no complaints whatsoever involving his right index finger during the January 2020 examination. Therefore, technically, a zero percent, or noncompensable disability rating should have been applied between August 2011 and May 2021.

The AOJ should at the very least remove the hyphenated "5002" from the Veteran's disability rating for his right index finger. Recalculating the 10 percent rating to zero percent between August 2011 and May 2021 would also promote accuracy in rating.

There is no basis for a schedular rating in excess of 10 percent at any point during the appeal period as 10 percent is the highest schedular disability rating provided for impairment of the index finger.

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Harter, Heather J.

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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