ULCERATIVE COLITIS

A. P. SIMPSON · 2026 · Case ID: A26039520

DENIED

Summary

The veteran, who served in the Navy from August 2015 to March 2016, appeals the denial of increased ratings for ulcerative colitis and right shoulder disability. The Board reviewed the case under the pre-May 19, 2024 rating criteria for ulcerative colitis, finding that while some evidence suggested severe symptoms, the overall medical record, including VA treatment records and examinations from October 2020, April 2021, and July 2022, did not support a rating higher than the current 30 percent. Specifically, the Board found that the veteran's claims of malnutrition and frequent severe attacks were not consistently supported by the majority of the evidence, which indicated stable symptoms and no weight loss or malnutrition. For the right shoulder disability, the veteran sought an increased rating beyond the current 20 percent. The Board considered multiple VA examinations and private medical opinions. While a private examiner's range of motion testing suggested a 30 percent rating, the Board found the VA examinations, which documented less severe limitations and inconsistent symptom reporting by the veteran, to be more probative. The Board concluded that the veteran's range of motion measurements and symptom reporting did not meet the criteria for a higher rating. Therefore, the increased rating claims for both conditions were denied.

Rationale

VA treatment records and examinations from October 2020, April 2021, and July 2022 were found most probative.; Evidence did not consistently support severe symptoms with malnutrition and numerous attacks.; October 2020 and April 2021 VA examiners found no weight loss or malnutrition.; September 2022 VA review of systems was negative for fatigue, fever, sweats, chills, and unexplained weight changes.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7323

Docket No.

251126-610884

Full Decision Text

Citation Nr: A26039520
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 251126-610884
DATE: April 28, 2026

ORDER

1. Entitlement to an initial disability rating in excess of 30 percent for ulcerative colitis is denied.

2. Entitlement to an initial disability rating in excess of 20 percent for right shoulder strain s/p rotator cuff repair (right shoulder disability) is denied.

FINDINGS OF FACT

1. During the period on appeal, the competent and probative evidence of record does not support a finding that the Veteran's ulcerative colitis has manifested as severe; with numerous attacks a year and malnutrition, the health only fair during remissions.

2. The persuasive weight of the evidence is against a finding that during the period on appeal, the Veteran's right shoulder disability manifested with limitation of motion of the arm where flexion and/or abduction was limited to 45 degrees or less.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial disability rating in excess of 30 percent for ulcerative colitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7323.

2. The criteria for entitlement to an initial disability rating in excess of 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2015 to March 2016.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2025 rating decision, which was a higher-level review of an October 2023 rating decision that continued the 30 percent rating for ulcerative colitis and the 20 percent rating for right shoulder disability. In the March 2025 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) also continued the 30 percent evaluation for ulcerative colitis and the 20 percent evaluation for right shoulder disability.

In November 2025, the Veteran timely appealed the decision to the Board by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) and requesting a "Direct Review" of the evidence by a Veterans Law Judge. As an initial matter, the Board notes that within the NOD, the Veteran's attorney indicated that the Veteran was seeking increased ratings and earlier effective dates for her ulcerative colitis and right shoulder disabilities. However, there was no effective dates assigned in either the October 2023 or the March 2025 rating decisions. Upon further review of the Veteran's attorney's contentions and the record, the Board finds that the Veteran is, in fact, seeking initial increased ratings only. Thus, the Board has characterized the issues on appeal consistent with this interpretation of the Veteran's arguments.

In an Appeals Modernization Act (AMA) Direct Review appeal where the rating decision on appeal is a higher-level review, the Board considers the evidence of record at the time of the October 2023 rating decision. 38 C.F.R. § 20.301.

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in its decision here. 38 C.F.R. § 20.300. If the Veteran would like the VA to consider any evidence that was added to the claims file 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Rating

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average
If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Rating

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

1. Entitlement to an initial disability rating in excess of 30 percent for ulcerative colitis.

The Veteran contends that her ulcerative colitis should be rated higher than the currently assigned 30 percent rating.

At the outset, the Board notes that in an attachment to the November 2025 NOD, the Veteran's attorney appears to argue that the April 2021 VA examiner, who also authored February 2022 and June 2022 VA-contracted medical opinions was not competent to offer an opinion regarding the severity of the Veteran's ulcerative colitis. The basis for this argument is that, per the Veteran's attorney, the April 2021 VA-contracted examiner is "not certified in [VA's] Disability and Medical Assessment [DMA] Clinician Lookup database website." The Board clarifies that the DMA is a tool to aid Veterans in searching for licensed, independent practice providers at VA medical centers. This is not intended to operate as a list of qualified providers with whom VA has contracted to perform compensation and/or pension (C&P) evaluations. To this end, a contracted C&P provider's inclusion or exclusion from the DMA directory has no bearing on whether that provider is competent to perform a specific C&P examination and/or medical opinion.

Moreover, in an April 6, 2021 VA examination letter, Veterans Evaluation Services (VES) notified the Veteran that it had been contracted by VA to perform the Veteran's ulcerative colitis examination and medical opinion and provided the examiner's medical background. Specifically, the April 2021 VA-contracted examiner's qualifications were noted, in relevant part, as: general medical nurse practitioner, state board certification, C&P experience, medical experience, and specific VA compensation and pension related training, which included, medical opinion, and general training. Based on the foregoing information, the Board finds that the April 2021 VA-contracted examiner was competent to perform an examination and author a medical opinion concerning the Veteran's ulcerative colitis.

By way of history, in a November 2020 rating decision, the AOJ, in relevant part, granted service connection for ulcerative colitis and assigned a 30 percent rating effective August 8, 2018. Thereafter, in February 2021, the Veteran filed a supplemental claim, seeking, among other things, an increased rating for ulcerative colitis. The Veteran has continuously pursued her increased rating claim through the underlying March 2025 higher-level review rating decision on appeal, wherein the AOJ continued the
Based on the foregoing information, the Board finds that the April 2021 VA-contracted examiner was competent to perform an examination and author a medical opinion concerning the Veteran's ulcerative colitis.

By way of history, in a November 2020 rating decision, the AOJ, in relevant part, granted service connection for ulcerative colitis and assigned a 30 percent rating effective August 8, 2018. Thereafter, in February 2021, the Veteran filed a supplemental claim, seeking, among other things, an increased rating for ulcerative colitis. The Veteran has continuously pursued her increased rating claim through the underlying March 2025 higher-level review rating decision on appeal, wherein the AOJ continued the 30 percent evaluation for ulcerative colitis. The Veteran then appealed the decision.

The Veteran's ulcerative colitis is rated as 30 percent disabling from August 8, 2018, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323 of the schedule of ratings for the digestive system.

Effective May 19, 2024, the rating criteria for the digestive system were revised, including changes to Diagnostic Code (DC) 7323.

Under the pre-May 19, 2024 version of DC 7323 a 10 percent rating is assigned for moderate ulcerative colitis; with infrequent exacerbations. A 30 percent rating is assigned for moderately severe ulcerative colitis; with frequent exacerbations. A 60 percent rating is assigned for severe ulcerative colitis; with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is assigned for pronounced ulcerative colitis; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abcess. 38 C.F.R. § 4.114, Diagnostic Code 7323.

The revised version of DC 7323, effective May 19, 2024, provides that ulcerative colitis should be rated as Crohn's disease or undifferentiated form of inflammatory bowel disease under DC 7326. Under Diagnostic code 7326, a 10 percent rating is assigned for minimal to mild symptomatic inflammatory bowel disease that is managed with oral or topical agents (other than immunosuppressants or other biologic agents); and is characterized by recurrent abdominal pain with three or less daily episodes of diarrhea and no signs of systemic toxicity. A 30 percent rating is assigned for mild to moderate inflammatory bowel disease that is managed with oral and topical agents (other than immunosuppressants or other biologic agents); and is characterized by recurrent abdominal pain with three or less daily episodes of diarrhea and minimal signs of toxicity such as fever, tachycardia, or anemia. A 60 percent rating is assigned for moderate inflammatory bowel disease that is managed on an outpatient basis with immunosuppressants or other biologic agents; and is characterized by recurrent abdominal pain, four to five daily episodes of diarrhea; and intermittent signs of toxicity such as fever, tachycardia, or anemia. A 100 percent rating is assigned for severe inflammatory bowel disease that is unresponsive to treatment; and requires hospitalization at least once per year; and results in either an inability to work or is characterized by recurrent abdominal pain associated with at least two of the following: (1) six or more episodes per day of diarrhea, (2) six or more episodes per day of rectal bleeding, (3) recurrent episodes of rectal incontinence, or (4) recurrent abdominal distension.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110.

In the present case, the Board will consider the Veteran's claim under the pre-May 19, 2024 rating criteria, as the rating criteria was revised between the date of the relevant March 2025 rating decision on appeal, which was a higher-level review of an October 2023 rating decision, and the date that the Veteran filed her appeal and all of the applicable evidence pertaining to the Veteran's ulcerative colitis symptoms are from before the change in the law. Furthermore, the pre-May 19,
If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110.

In the present case, the Board will consider the Veteran's claim under the pre-May 19, 2024 rating criteria, as the rating criteria was revised between the date of the relevant March 2025 rating decision on appeal, which was a higher-level review of an October 2023 rating decision, and the date that the Veteran filed her appeal and all of the applicable evidence pertaining to the Veteran's ulcerative colitis symptoms are from before the change in the law. Furthermore, the pre-May 19, 2024 rating criteria is more favorable to the Veteran.

Regarding the pre-May 19, 2024 version of DC 7323, the terms "moderate," "frequent," "severe," and "pronounced" are not defined in the Rating Schedule. Therefore, the Board turns to the dictionary definitions for assistance. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010) (noting that absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings).

"Moderate" is defined as "not violent, severe, or intense"; "limited in scope or effect." See Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5.

"Frequent" is defined as "acting or returning regularly or often." See Frequent, Merriam-Webster/ Dictionary Online, https://www.merriamwebster.com/dictionary/frequent, Definition 3.

"Severe," is defined as "causing discomfort or hardship"; "very painful or harmful;" "of a great degree." See Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8.

"Pronounced," is defined as "strongly marked"; "very painful or harmful;" "of a great degree." See Pronounced, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/pronounced.

The Veteran contends that her ulcerative colitis should be rated higher than the currently assigned 30 percent disability rating.

The Board has carefully reviewed the evidence of record and finds that an initial disability rating in excess of 30 percent for ulcerative colitis is not warranted. The reasons follow.

VA treatment records during the pendency of the Veteran's claim reflect that in December 2020, the Veteran was seen for a fungal infection in her feet. The treatment record documents that the provider advised the Veteran that when the Veteran finished breastfeeding, they could consider Lamisil treatment as the Veteran was "healthy and had no other comorbidities."

In a September 2022 general review of systems, the Veteran denied symptoms of fatigue, unexplained weight changes, fever, sweats, and chills. Regarding gastrointestinal symptoms, the Veteran endorsed experiencing occasional nausea and abdominal pain. She denied symptoms of vomiting, indigestion, constipation, diarrhea, blood in stool, and changes in bowel habits.

There are numerous medical examinations and medical opinions of record over the course of the Veteran's claim. Upon review, an October 2020 VA intestinal conditions examination report documents that the Veteran did not experience weight loss or malnutrition.

In a February 2021 private medical examination completed alongside a review of the Veteran's records, Mark A. Seldes, MD opined that the Veteran's ulcerative colitis was severe; with numerous attacks a year and malnutrition, the health only fair during remissions and was manifested by symptoms including hair loss.

An April 2021 VA-contracted examination report confirmed the Veteran's diagnosis of ulcerative colitis. The examiner documented that the Veteran reported her symptoms had worsened since their onset in 2016. The Veteran's current symptoms were noted as hard stool, with a bowel movement once every two days. She also experienced intermittent, bright red blood in her stool and diarrhea with flare ups. Flare-ups resulted in functional impact wherein the Veteran had to stay home for the day. Symptoms further included sharp, left lower quadrant, abdominal pain that occurred one to two times a month, for a duration of one day. She also endorsed being nauseous one to two times a week. The Veteran's ulcerative colitis treatment consisted of her being on a low Fodmap diet and taking Mesalamine suppositories daily. The examiner documented that the Veteran did not have
had worsened since their onset in 2016. The Veteran's current symptoms were noted as hard stool, with a bowel movement once every two days. She also experienced intermittent, bright red blood in her stool and diarrhea with flare ups. Flare-ups resulted in functional impact wherein the Veteran had to stay home for the day. Symptoms further included sharp, left lower quadrant, abdominal pain that occurred one to two times a month, for a duration of one day. She also endorsed being nauseous one to two times a week. The Veteran's ulcerative colitis treatment consisted of her being on a low Fodmap diet and taking Mesalamine suppositories daily. The examiner documented that the Veteran did not have weight loss attributable to her ulcerative colitis. The examiner further found that the Veteran did not have malnutrition, serious complications, or other general health effects attributable to her intestinal condition.

In a February 2022 addendum, the April 2021 VA-contracted examiner indicated that the Veteran's symptoms included frequent episodes of bowel disturbance with abdominal distress with intermittent blood in stool and diarrhea with flare-ups noted as severe. The examiner indicated that the Veteran also experienced pain one to two times a month for a duration of one day.

In a June 2022 medical opinion regarding conflicting medical evidence, the April 2021 VA-contracted examiner clarified that the Veteran's symptoms of fatigue, malnutrition, and hair loss were symptoms of her severe ulcerative colitis rather than other chronic disabilities. The examiner's determination was based upon a review of the Veteran's treatment records, which the examiner found noted an onset of ulcerative colitis in 2016 followed by ulcerative colitis proctitis in 2017 alongside symptoms of mucus in stool, feeling bloated, and constipation. The Veteran was also noted as having undergone a colonoscopy.

Thereafter, an October 2023 VA examination report authored by a different examiner and based upon a records review and interview of the Veteran, confirmed the Veteran's ulcerative colitis diagnosis. The examiner also provided diagnoses of proctitis and constipation. The examiner documented that the Veteran reported her symptoms had worsened since their onset. The Veteran reported having sensitivity to gluten that caused gastrointestinal (GI) upset. Per the examination report, the Veteran experienced frequent flare-ups occurring two or more times a month. Her current symptoms were identified as abdominal distension (bloating), nausea, constipation, and mucus in stools. The Veteran additionally experienced episodes of exacerbations and/or attacks of ulcerative colitis. The Veteran's exacerbation or attack of ulcerative colitis consisting of bloating, abdominal cramping, mucus in stools, and constipation occurred one or two times a month. In the 12 months prior to the examination, the Veteran reported experiencing seven or more ulcerative colitis attacks. However, the examiner did not find that the Veteran had weight loss or malnutrition.

The October 2023 VA examination report indicated that the Veteran had undergone a colonoscopy in November 2021, which revealed proctitis. The examiner documented that the pathology was consistent with chronic active colitis in the rectum and otherwise normal mucosa.

In an associated medical opinion, the October 2023 VA examiner clarified that the Veteran had severe ulcerative colitis; with numerous attacks a year and malnutrition, the health only fair during remissions, which was supported by the medical evidence of record. In particular, the examiner noted that the Veteran was seen in June 2022, during which the provider documented that the Veteran was taking Mesalamine suppositories 1000mg daily during flare-ups. The flare-ups occurred one to two times monthly with mucus, abdominal cramping, and malnutrition during flares. Thus, the October 2023 examiner determined that a nexus had been established.

After carefully reviewing the evidence of record, the Board finds VA treatment records and the October 2020, April 2021, and February 2022 VA medical examinations and medical opinions to be the most probative evidence concerning the severity of the Veteran's ulcerative colitis during the pendency of her claim. In making this determination, the Board acknowledges the February 2021 private medical examination and the June 2022 and October 2023 VA medical opinions and/or medical examination reports providing that the Veteran's ulcerative colitis symptoms are severe with numerous attacks a year and malnutrition. Notwithstanding those conclusions, when weighing the evidence in support of and the evidence against an increased rating, the Board finds that the evidence persuasively weighs against a finding that over the pendency of the Veteran's claim, her ulcerative colitis symptoms have manifested in such severity to warrant a disability rating in excess of 30 percent.

Here, October
ative evidence concerning the severity of the Veteran's ulcerative colitis during the pendency of her claim. In making this determination, the Board acknowledges the February 2021 private medical examination and the June 2022 and October 2023 VA medical opinions and/or medical examination reports providing that the Veteran's ulcerative colitis symptoms are severe with numerous attacks a year and malnutrition. Notwithstanding those conclusions, when weighing the evidence in support of and the evidence against an increased rating, the Board finds that the evidence persuasively weighs against a finding that over the pendency of the Veteran's claim, her ulcerative colitis symptoms have manifested in such severity to warrant a disability rating in excess of 30 percent.

Here, October 2020 and April 2021 VA examiners both found that the Veteran did not have weight loss or malnutrition. Notably, the April 2021 VA examination was performed after Dr. Seldes's February 2021 private examination. The April 2021 VA examination where the examiner makes clinical findings that the Veteran's ulcerative colitis is not characterized by weight loss or malnutrition is bolstered by subsequent VA treatment records. In this case, nearly a year and a half after the April 2021 examiner determined that the Veteran did not have weight loss or malnutrition due to her ulcerative colitis, a September 2022 VA review of systems is negative for symptoms of fatigue, fever, sweats, chills, and unexplained weight changes. Regarding gastrointestinal symptoms, the Veteran endorsed experiencing occasional nausea and abdominal pain. However, she denied symptoms of vomiting, indigestion, constipation, diarrhea, blood in stool, and changes in bowel habits.

Therefore, although the medical evidence during the period on appeal documents that the Veteran's ulcerative colitis symptoms have, at times, manifested as severe, and with malnutrition, these symptoms are not reflective of the Veteran's disability picture. Thus, when this positive evidence is viewed within the context of the totality of the evidence of record, an increased rating is not warranted. Therefore, the Board finds that the evidence as reflected in the VA treatment records and VA medical examinations/medical opinions discussed above, does not support a finding that the during the period on appeal, the Veteran's ulcerative colitis symptoms were severe; with numerous attacks a year and malnutrition, the health only fair during remissions.

For the above reasons, an initial disability rating in excess of 30 percent for ulcerative colitis is not warranted. There is no doubt to be resolved, and the increased rating claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to an initial disability rating in excess of 20 percent for right shoulder disability.

The Veteran contends that her right shoulder disability should be rated higher than the currently assigned 20 percent rating.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8. Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. However, those provisions should only be considered in conjunction with the diagnostic codes (DCs) predicated on limitation of motion. 38
.R. § 4.40.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC.

Historically, in a November 2020 rating decision, the AOJ, in relevant part, granted service connection for right shoulder disability and assigned a 20 percent rating effective August 8, 2018. Thereafter, in February 2021, the Veteran filed a supplemental claim, seeking, among other things, an increased rating for right shoulder disability. The Veteran has continuously pursued her increased rating claim through the underlying March 2025 higher-level review rating decision on appeal, wherein the AOJ continued the 20 percent evaluation for right shoulder disability. The Veteran then appealed the decision.

The Veteran's right shoulder disability, which is her major upper extremity, is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, for the major extremity, limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating. Limitation of motion of the arm midway between side and shoulder (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating. Limitation of motion of the arm flexion and/or abduction limited to 25 degrees from side warrants the maximum 40 percent schedular rating for the major extremity. 38 C.F.R. § 4.71a, DC 5201.

Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating.

The Board has carefully reviewed the evidence of record and finds that an initial disability rating in excess of 20 percent for right shoulder disability is not warranted. The reasons follow.

A review of the evidence of record reflects that a January 2021 VA treatment record provides that the Veteran, an Olympic lifter, presented with an old rotator cuff injury. She reported that her previous doctor relocated, and she was looking for non-surgical options/specialist. The Veteran reported completing physical therapy in the past as well as recent imaging. She stated that her pain varied on a daily basis. The provider documented that the Veteran was also in the Navy Reserves and was a CrossFit coach. A nutrition treatment record from that same month reveals that the Veteran was seen in relation to having extremely dry skin, fatigue, and difficulty losing weight after giving birth 10 months prior, which she attributed to Hashimoto's disease. The Veteran reported that she had no problem losing her pregnancy weight after having her boys, who were 13 and 8. However, with her daughter, the Veteran had not been able to lose her pregnancy weight. The Veteran stated that she was an athlete and exercised a lot prior to her pregnancy. Post-pregnancy, the Veteran noted being so overwhelmed and fatigued that she had not been able to start exercising again.

March 2022 VA treatment records show that the Veteran presented for an annual appointment for follow-up care of her chronic medical conditions.
was seen in relation to having extremely dry skin, fatigue, and difficulty losing weight after giving birth 10 months prior, which she attributed to Hashimoto's disease. The Veteran reported that she had no problem losing her pregnancy weight after having her boys, who were 13 and 8. However, with her daughter, the Veteran had not been able to lose her pregnancy weight. The Veteran stated that she was an athlete and exercised a lot prior to her pregnancy. Post-pregnancy, the Veteran noted being so overwhelmed and fatigued that she had not been able to start exercising again.

March 2022 VA treatment records show that the Veteran presented for an annual appointment for follow-up care of her chronic medical conditions. The Veteran reported that she was compliant with and tolerated medication as prescribed. She denied having any complaints. The Veteran reported engaging in light weight lifting and cardio. A review of the Veteran's musculoskeletal system was positive for right shoulder pain. In the assessment/plan, the provider indicated that the Veteran's right shoulder pain was stable.

A December 2022 VA treatment record documented that the Veteran was seen for continued care of bilateral digit skin dryness that started when she started working out.

As to examinations during the period on appeal, in a February 2021 private examination report alongside a review of the Veteran's records, Dr. Seldes noted that the Veteran reported tenderness over the anterior, lateral, and posterior aspects of the right shoulder joint. The Veteran additionally had tenderness over the bicipital groove, bicipital tendon, and the AC joint. Neer's and Hawkins tests were positive. Range of motion testing revealed that flexion was to 70 degrees; extension was to 30 degrees; abduction was to 45 degrees; external rotation was to 10 degrees; and internal rotation was 0 (zero) degrees. Dr. Seldes opined that based upon range of motion testing with arm limitation of motion midway between side and shoulder level, the Veteran's right shoulder disability warranted a 30 percent rating.

An April 2021 VA shoulder and arm examination report documents a right shoulder disability. Regarding medical history, the Veteran reported that her right shoulder symptoms began in 2015 from a shoulder injury while doing push-ups, with worsening symptoms since its onset. The Veteran reported undergoing rotator cuff repair in 2017. She endorsed feeling constant pain to the entire right shoulder. The Veteran rated her pain level as a six out of ten. She additionally reported experiencing daily flare-ups that lasted one to two minutes when lifting her arm. The flare-ups were characterized by sharp pain to the entire shoulder. Flare-ups were precipitated by the Veteran raising her arm and were alleviated by resting her arm. With respect to functional impairment during flare-ups, the Veteran reported that there was less movement in her right shoulder due to chronic pain.

Upon physical examination, initial range of motion testing was abnormal and contributed to functional loss manifested as an inability to lift her arm above the shoulder. During active range of motion testing, flexion was to 90 degrees; abduction was to 80 degrees; internal rotation endpoint was to 90 degrees; and external rotation endpoint was to 90 degrees. The Veteran exhibited pain in all areas of active range of motion testing that caused functional loss resulting in an inability to lift her arm above the shoulder. The examiner documented that passive range of motion testing was the same as active range of motion testing also with pain exhibited in all areas of range of motion testing. There was objective evidence of crepitus.

The examiner documented that the Veteran was unable to perform repetitive use testing. The Veteran was not examined immediately after repeated use over time. However, the examiner noted that statements from the Veteran did not suggest pain, fatigability, weakness, lack of endurance, or incoordination that significantly limited functional ability with repeated use over time. The examiner estimated the Veteran's ranges of motion immediately after repeated use over time as flexion to 90 degrees, abduction to 80 degrees, internal rotation endpoint to 90 degrees, and external endpoint to 80 degrees.

The Veteran was not examined during a flare-up. However, the examiner found that statements from the Veteran suggested pain that significantly limited functional ability during flare-ups. The examiner estimated the Veteran's ranges of motion during flare-ups as flexion to 90 degrees, abduction to 80 degrees, and internal and external rotation endpoint both to 80 degrees. The examiner indicated that disturbance of locomotion and less movement than normal were additional contributing factors of the Veteran's right shoulder disability. The examiner found that these contributing factors resulted in less movement due to chronic pain to the right shoulder. There was no muscle atrophy or ankylosis.

The examiner was unable to perform
90 degrees, and external endpoint to 80 degrees.

The examiner was unable to perform a Hawkins' Impingement Test, Empty Can Test, External rotation/infraspinatus strength test, and lift-off subscapularis test due to the Veteran's right shoulder disability involving a rotator cuff condition. A Crank Apprehension and Relocation Test was negative. The examiner further found that there was no shoulder instability. Cross-body adduction testing was negative. The examiner also did not suspect that the Veteran had a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. There was no impairment of the humerus. The Veteran had undergone right shoulder rotator cuff repair in 2017, with residuals of chronic pain and limited range of motion. The Veteran did not use an assistive device. Concerning functional impairment, the examiner documented that the Veteran's right shoulder disability caused less movement due to chronic pain to the right shoulder and difficulty lifting items.

An April 2022 VA shoulder and arm examination report confirmed the Veteran's right shoulder disability diagnosis. The examiner documented that the Veteran's right shoulder symptoms had progressed since its onset in 2015. The Veteran reported ongoing pain in her right shoulder. The Veteran also reported twice per month, experiencing severe flare-ups with physical activities. The flare-ups were precipitated by overhead activities and were alleviated by resting her arm and doing physical therapy. Regarding functional impairment during flare-ups, the Veteran reported that she could not work out the way she wanted with overhead workouts.

Initial range of motion testing was abnormal but did not contribute to functional loss. Active range of motion testing revealed that flexion was to 170 degrees, abduction was to 160 degrees; internal rotation endpoint was to 90 degrees, and external rotation endpoint was to 70 degrees. The Veteran exhibited pain in all areas of active range of motion testing except internal rotation. The examiner documented that passive range of motion testing was the same as active range of motion testing. As with active range of motion, there also was evidence of pain exhibited in in all ranges of motion except internal rotation. The pain caused functional loss resulting in tenderness at the end of motion. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue.

The examiner documented that the Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time. However, the examiner noted that statements from the Veteran suggested pain that significantly limited functional ability with repeated use over time. The examiner estimated the Veteran's ranges of motion immediately after repeated use over time as flexion to 165 degrees, abduction to 155 degrees, internal rotation endpoint to 90 degrees, and external endpoint to 65 degrees.

The Veteran was not examined during a flare-up. However, the examiner found that statements from the Veteran suggested pain that significantly limited functional ability during flare-ups. The examiner estimated the Veteran's ranges of motion during flare-ups as flexion to 165 degrees, abduction to 155 degrees, internal rotation endpoint to 90 degrees, and external rotation endpoint to 65 degrees. The examiner indicated that there were no additional contributing factors of the Veteran's right shoulder disability. There also was no muscle atrophy or ankylosis.

Hawkins' Impingement Test, Empty Can Test, External rotation/infraspinatus strength test, and Lift-off subscapularis test were all positive. A Crank Apprehension and Relocation Test was negative. The examiner further found that there was no shoulder instability. Cross-body adduction testing was negative. The examiner also did not suspect that the Veteran had a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. There also was no impairment of the humerus. The Veteran had undergone right shoulder rotator cuff repair in 2017, with residuals of intermediate degrees of residual weakness, pain
losis.

A July 2022 VA shoulder and arm examination report confirmed the Veteran's right shoulder disability diagnosis. The examiner documented that the Veteran's right shoulder symptoms had progressed since its onset in 2015. The Veteran reported that her pain had gotten more intense over the last three years. The Veteran's symptoms were noted as daily, constant pain characterized by aching to the entire right shoulder. The Veteran reported that on average, her right shoulder pain was an eight out of ten. The Veteran reported undergoing rotator cuff repair in 2017. She additionally reported taking Motrin Ibuprofen as needed and attending physical therapy.

The Veteran also reported experiencing severe daily flare-ups when lifting her arm or carrying items. The flare-ups were characterized by sharp pain to the entire right arm. Flare-ups were precipitated by the Veteran raising her arm and were alleviated by resting her arm and taking Motrin. Regarding functional impairment during flare-ups, the Veteran reported difficulty when lifting her arm or carrying items.

Initial range of motion testing was abnormal and contributed to functional loss manifested as less movement to the right shoulder due to difficulty lifting items. Active range of motion testing revealed that flexion was to 60 degrees; abduction was to 50 degrees; internal and external rotation endpoint were both to 75 degrees. The Veteran exhibited pain in all areas of active range of motion testing. The examiner documented that passive range of motion testing was the same as active range of motion testing also with pain exhibited in all areas of range of motion testing. There was also evidence of pain in weight-bearing and nonweight-bearing and active and passive motion on rest/non-movement that caused functional loss resulting in difficulty when lifting her arm and carrying items. There was objective evidence of crepitus but no evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue.

The examiner documented that the Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The examiner further documented that the Veteran was not examined immediately after repeated use over time. However, the examiner noted that statements from the Veteran did not suggest pain, fatigability, weakness, lack of endurance, or incoordination that significantly limited functional ability with repeated use over time.

The Veteran was not examined during a flare-up. However, the examiner found that statements from the Veteran suggested pain that significantly limited functional ability during flare-ups. The examiner estimated the Veteran's ranges of motion during flare-ups as flexion and abduction both to 50 degrees, internal rotation endpoint to 40 degrees, and external rotation endpoint to 45 degrees. The examiner indicated that interference with standing, disturbance of locomotion, and less movement than normal were additional contributing factors of the Veteran's right shoulder disability. The examiner found that these contributing factors resulted in less movement due to constant pain and flare-up pain due to difficulty when lifting the arm and carrying items. There was no muscle atrophy or ankylosis.

A Hawkins' Impingement Test, an Empty Can Test, an External rotation/infraspinatus strength test, and lift-off subscapularis test were all positive. A Crank Apprehension and Relocation Test was negative. The examiner further found that there was no shoulder instability. Cross-body adduction testing was negative. The examiner also did not suspect that the Veteran had a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition or impairment of the humerus. The Veteran had undergone right shoulder rotator cuff repair in 2017, with residuals of chronic pain and limited range of motion. The Veteran did not use an assistive device. Concerning functional impairment, the examiner documented that the Veteran's right shoulder disability caused difficulty when lifting her arm and carrying items.

After
test were all positive. A Crank Apprehension and Relocation Test was negative. The examiner further found that there was no shoulder instability. Cross-body adduction testing was negative. The examiner also did not suspect that the Veteran had a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition or impairment of the humerus. The Veteran had undergone right shoulder rotator cuff repair in 2017, with residuals of chronic pain and limited range of motion. The Veteran did not use an assistive device. Concerning functional impairment, the examiner documented that the Veteran's right shoulder disability caused difficulty when lifting her arm and carrying items.

After a careful review of the evidence of record, the Board finds the February 2021 private examination of minimal probative value. In this case, although the private examiner conducted range of motion testing where abduction was to 45 degrees, which meets the rating criteria for a 30 percent rating, the Board finds the VA the VA examinations of record, namely the April 2021, June 2022, and July 2022 VA examinations coupled with the VA treatment records during the period on appeal more accurately reflect the Veteran's disability picture as a whole.

Here, VA treatment records during the period on appeal document that the Veteran was an Olympic weight-lifter who, after incurring a right shoulder injury, rotator cuff tear, and subsequent repair surgery, she continued to work as a CrossFit coach, even with chronic pain. After intermittent periods of not exercising, by at least March 2022, the Veteran had resumed lifting weights and cardio workouts. At that time, the Veteran was seen for an annual physical, where she denied having complaints. Although a review of systems was positive for right shoulder pain, the provider documented that the Veteran's pain was stable.

The Board notes that based upon the competent and credible evidence of record over the course of the Veteran's pursuit of her increased rating claim, she has continuously endorsed severe flare-ups of right shoulder symptoms, with flare-ups ranging from daily one to two-minute flare-ups with pain on a scale of eight out of ten at its worse to two flare-ups a month at its best. Notably, in 2021 and 2022, when the medical evidence shows that the Veteran's right shoulder symptoms/flare-ups were at its worse, VA treatment records during that timeframe establish that the Veteran had a recent history of being a CrossFit coach and a present desire to resume exercising/working out after giving birth. Although the Veteran complained of recent weight gain, she did not report right shoulder symptoms as a barrier to exercising. Instead, the Veteran identified being fatigued and overwhelmed post pregnancy as barriers to resuming her athletic/fit lifestyle. In fact, by March 2022, just four months before the VA examination in which the Veteran reported a significant worsening in her shoulder symptoms with daily flare-ups and pain at an intensity of eight out of 10, the Veteran resumed lifting weights and doing cardio workouts.

Therefore, when the range of motion evidence is viewed in its totality, VA examinations in April 2021, April 2022, and July 2022 documenting flexion and/or abduction values of 80, 155, and 50 respectively, are more consistent with the overall medical evidence of record concerning the severity of the Veteran's right shoulder symptoms, to include the Veteran's own statements concerning her symptoms, which were also captured in VA treatment records. Thus, when considered within this context, the February 2021 private examination documenting flexion to 45 degrees can be seen as an unreliable snapshot of the Veteran's right shoulder symptoms. Those range of motion results do not are inconsistent with the Veteran's full disability picture as consistently captured by the totality of the competent and credible evidence during the period on appeal.

Thus, based upon the competent and probative medical evidence of record, which the Board finds are VA treatment records and April 2021, April 2022, and July 2022 VA examinations, which as a whole, more consistently capture the severity of the Veteran's right shoulder symptoms, to include range of motion of the right shoulder during flare-ups as flexion and abduction to 50 degrees at its worse, an initial disability rating in excess of 20 percent is not warranted. As discussed above, a 30 percent rating under 38 C.F.R. § 4.71a, DC 5201 is warranted where there is limitation of motion of the arm of the major extremity midway between side and shoulder (flexion and/or abduction limited to 45 degrees). The Veteran's right shoulder flexion and abduction to 50 degrees does not meet this criteria. Available treatment records during the period on appeal also do not document limitation of motion measurements that would
capture the severity of the Veteran's right shoulder symptoms, to include range of motion of the right shoulder during flare-ups as flexion and abduction to 50 degrees at its worse, an initial disability rating in excess of 20 percent is not warranted. As discussed above, a 30 percent rating under 38 C.F.R. § 4.71a, DC 5201 is warranted where there is limitation of motion of the arm of the major extremity midway between side and shoulder (flexion and/or abduction limited to 45 degrees). The Veteran's right shoulder flexion and abduction to 50 degrees does not meet this criteria. Available treatment records during the period on appeal also do not document limitation of motion measurements that would support an increased rating.

The Board acknowledges the Veteran's report of chronic right shoulder pain. However, the Veteran's own statements and evaluations during the appeal period contradict the Veteran's contention that her right shoulder symptoms have worsened such that a rating in excess of 20 percent is warranted.

The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a disability rating in excess of 20 percent. However, the evidence does not reflect that the Veteran's current right shoulder symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In this instance, the record does not show evidence of ankylosis. The record evidence also shows that the Veteran has range of motion in the right shoulder, albeit abnormal. Thus, the Veteran would not be entitled to a higher rating under Diagnostic Code 5200, which contemplates no movement in the shoulder joint. Likewise, the VA examination report shows that there was no impairment of the humerus or the clavicle/scapula, thus a higher rating under Diagnostic Codes 5202 and 5203 would not be warranted.

Based on the foregoing, the Board finds the VA medical evidence to be the most probative evidence of the severity of the Veteran's right shoulder disability. The range of motion measurements reflected in the three examination reports are consistent with the currently assigned 20 percent rating.

Consequently, the Board finds that the evidence of record persuasively weighs against an initial disability rating in excess of 20 percent for the right shoulder disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th at 776.

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P.C.

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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