Entitlement to a disability rating of 30 percent, but no higher, for a left shoulder strain status post Bankart and rotator cuff surgery with osteoarthritis, rotator cuff/biceps tendinopathy and glenohumeral joint…

Citation Nr: A26069976 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 260210-641330 DATE: July 30, 2026 ORDER Entitlement to a disability rating of 30 percent, but no higher, for a left shoulder strain status post Bankart and rotator cuff surgery with osteoarthritis, rotator cuff/biceps tendinopathy and glenohumeral joint osteoarthritis/instability (hereafter "left shoulder disability") is granted. Entitlement to an initial disability rating in excess of 10 percent for a painful left shoulder surgery scar is denied. FINDINGS OF FACT 1. The Veteran's left shoulder disability has current residuals of recurrent dislocation of the glenohumeral joint with frequent episodes and guarding of all arm movements affecting range of motion. 2. The Veteran has one painful left shoulder scar that is not unstable or associated with underlying soft tissue damage; does not cover an area of at least 144 square inches (929 sq. cm) and is not manifested by any disabling effects not considered under DCs 7800-04. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but no higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5202. 2. The criteria for a rating in excess of 10 percent for a painful left shoulder scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to March 1993. These appeals are being processed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2025 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ). The Veteran initiated this appeal to the Board by submitting a February 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. 38 C.F.R. § 20.301. Therefore, the Board may only consider the evidence of record that the AOJ was permitted to consider at the time it issued the rating decision on appeal (i.e., the evidence of record at the time the AOJ issued the July 2025 rating decision). 38 C.F.R. § 20.301. If evidence was added to the claims file during a period of time when new evidence was not allowed, the Board has not considered such evidence in this decision due to the AMA evidentiary restrictions noted above. The appellant may file a supplemental claim 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 along with this decision. Increased Rating-Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the rating assigned is at issue, if factually ascertainable, the effective date assigned may be up to one year prior to the date the application for increase was received. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Special Provisions for Musculoskeletal Disabilities When evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 recognizes the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed coordination, or endurance. Thus, when evaluating musculoskeletal disabilities based on limitation of motion. 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors that may not be reflected upon range of motion (ROM) testing during flare-ups or with repeated use over time. In that regard, the VA must also consider factors such as more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In Jones v. Shinseki, the Court held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." 26 Vet. App. 56, 63 (2012). If a diagnostic code does not specifically contemplate the effects of medication, the ameliorative effects of medication must be addressed. See Ingram v. Collins, 38 Vet. App. 130 (2025). Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, Fed. Reg. 76453, 76463 (Nov. 30, 2020). The General Rating Formula for the Skin was revised effective August 13, 2018. See 38 C.F.R. § 4.118. The revised criteria for both musculoskeletal disabilities and the skin apply to these appeals. 1. Entitlement to a disability rating in excess of 20 percent for a left shoulder disability. The Veteran seeks an increased rating for his left shoulder disability, claiming increased limitations and severity of his osteoarthritis. See January 2026 VA Form 10182. By way of procedural background, a February 1994 rating decision granted service connection for recurrent left shoulder dislocation and assigned a 20 percent evaluation from March 19, 1993. This was followed by a June 1994 rating decision granting a temporary 100 percent rating from April 13, 1993, to June 1, 1993, and a 20 percent rating thereafter. An August 1994 rating decision continued the assigned 20 percent rating. A May 2021 rating decision continued the assigned 20 percent rating for a left shoulder disability and granted service connection for a surgical scar of the left shoulder with a 0 percent evaluation effective May 3, 2021. The July 2025 rating decision on appeal continued the assigned 20 percent rating for the Veteran's left shoulder, now characterized as left shoulder strain status post Bankart and rotator cuff surgery with osteoarthritis, rotator cuff/biceps tendinopathy and glenohumeral joint osteoarthritis/instability. Service connection for a separate (painful) left shoulder surgery scar was granted with a 10 percent evaluation assigned from May 10, 2025. Based on the foregoing, the relevant period before the Board for consideration of the appropriate rating for the Veteran's left shoulder disability is from May 10, 2025, with consideration as to whether it is factually ascertainable that an increase in severity occurred within one year prior thereto. 38 U.S.C. § 5110(b)(3); Gaston, 605 F.3d at 982-83. The Veteran's left shoulder disability is rated under 38 C.F.R. § 4.71a Schedule of ratings - musculoskeletal system, Diagnostic Codes 5010-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the use of hyphenated diagnostic codes indicates that the Veteran's service-connected left shoulder condition was rated on the basis of traumatic arthritis (Diagnostic Code 5010) and limitation of motion of the arm (Diagnostic Code 5201). Under DC 5201, for a major (dominant) joint, motion limited to 25 degrees from the side warrants a maximum 40 percent rating, while motion limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating, and motion limited to shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating. For a minor (non-dominant) joint, motion limited to 25 degrees from the side warrants a maximum 30 percent rating, while motion limited to midway between side and shoulder level and motion limited to shoulder level both warrant a 20 percent rating. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. A Veteran is only entitled to a single disability rating under Diagnostic Code 5201 as that diagnostic code 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 (Fed. Cir. 2013). As noted above, for rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. Here, the evidence shows that the Veteran is ambidextrous and only his left shoulder disability is service connected. Therefore, his left shoulder is his major shoulder for rating purposes. See July 2025 VA examination (noting that the Veteran is ambidextrous when asked to specify dominant hand). Turning to the evidence, the Veteran attended an in person VA examination in July 2025 reporting worsened symptoms of sharp throbbing pain with numbness treated with physical therapy, injections of steroids and over the counter medications. Flareups reportedly occurred daily, described as constant pain that changed throughout the day with activity and were alleviated with medications. Initial active range of motion measurements (ROM) was recorded as flexion and abduction limited to 90 degrees, and internal and external rotation limited to 40 degrees, with painful motion observed for all movements. A contralateral comparison of the right side was not performed as this side was listed as damaged. Passive ROM was the same as active ROM on the left side. There was objective evidence of crepitus and localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time or during flare-ups. In these scenarios, flexion and abduction were estimated as limited to 80 degrees and internal and external rotation were estimated as limited to 30 degrees. Functional impact was described as difficulty with prolonged reaching, carrying, pushing, pulling and lifting objects making it difficult to complete daily tasks. Additional factors contributing to a disability were identified as less movement than normal and weakened movement decreasing range of motion causing a reduction in ability to reach, drive a car, carry, lift, push and pull. No muscle atrophy was observed on the left side. Nor was there ankylosis of the scapulohumeral (glenohumeral) articulation (shoulder joint) - i.e., the scapula and humerus did not move as one piece. Positive test findings were noted for the Hawkins' Impingement Test, Empty Can Test, External rotation/infraspinatus test strength test, Lift-off subscapularis test. The Crank Apprehension and Relocation Test was also positive, indicative of shoulder instability, dislocation or labral pathology with mechanical symptoms. Current residuals of recurrent dislocation of the glenohumeral joint were identified with frequent episodes and guarding of all arm movements affecting range of motion. The Cross-body Adduction test was also positive with the VA examiner identifying clavicle, scapula, acromioclavicular (AC) joint, sternoclavicular joint condition or other impairment described as osteoarthritis affecting range of motion and with tenderness on palpation of the AC joint. Malunion, nonunion and dislocation of these joints were not found. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate to marked deformity. The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds an increased disability rating of 30 percent, but no higher, is warranted during the period on appeal. As previously noted, the Veteran's left side shall be rated as dominant as he is reportedly ambidextrous. Under DC 5201, for a major (dominant) joint, motion limited to 25 degrees from the side warrants a maximum 40 percent rating, while motion limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating, and motion limited to shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating. During the July 2025 VA examination, the Veteran's flexion and abduction was limited to 90 degrees on active and passive ROM; however, during flare-ups and after repeated use over time, the Veteran's ROM was estimates as limited to 80 degrees. In order to be entitled to a higher 30 degree rating under DC 5201, the Veteran's flexion and/or abduction would need to be limited to 45 degrees. This extent of limited range of motion is not shown by the medical evidence of record. The Board's inquiry does not end here. The Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath, 1 Vet. App. at 589. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Diagnostic Code 5202 concerns other impairment of the humerus. In cases of marked deformity of malunion, a 30 percent rating will be assigned for the major (dominant) side, and a 20 percent rating shall be assigned for the minor side. For moderate deformity, a 20 percent rating will be assigned for each side. In cases where there is recurrent dislocation of/at the scapulohumeral joint with frequent episodes and guarding of all movements, a 30 percent rating will be assigned for the major side and a 20 percent rating for the minor side. A 20 percent rating is assigned for the major and minor side where there are infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees). Higher ratings are warranted for fibrous union of, nonunion of (false flail joint) or loss of head of (flail joint) under DC 5202. Here, the July 2025 VA examination identified current residuals of recurrent dislocation of the glenohumeral joint with frequent episodes and guarding of all arm movements affecting range of motion. This warrants a higher 30 percent rating. Critically, the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate to marked deformity. Thus, a disability rating in excess of 30 percent under DC 5202 is not warranted. The Board notes that the disability rating of 30 percent under DC 5202 is not assigned as a separate rating herein but rather, in place of the present 20 percent rating under DC 5201. As noted, 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment such as limited range of motion. Turning to DC 5203, impairment of the clavicle or scapula, the July 2025 VA examination did identify impairment of the AC joint in the form of osteoarthritis affecting range of motion. However, the VA examination did not identify malunion of the clavicle or scapula, nonunion of the clavicle or scapula or dislocation. Thus, DC 5203 is not for application. The evidence of record does not show that the Veteran has been diagnosed with ankylosis or that he has exhibited the functional equivalent of ankylosis. The July 2025 VA examination specifically determined ankylosis was not present. Thus, a separate or higher rating under DC 5203 is not appropriate. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The July 2025 VA examination identified additional factors contributing to the Veteran's left shoulder disability as less movement than normal and weakened movement decreasing range of motion causing a reduction in ability to reach, drive a car, carry, lift, push and pull. However, increased evaluations for the Veteran's left shoulder disability are not warranted on the basis of functional loss due to these factors, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluation, and no higher. To this end, the VA examiner took these factors into account providing ROM estimates during flares and after repeated use over time, and such estimates have been considered in the assignment of the Veteran's disability ratings. Further, the Board has considered the Veteran's use of over the counter medications and injections. Jones, supra; Ingram, supra. Initially, the Board observes that, during the July 2025 VA examination, the Veteran reported daily flareups and constant pain, albeit changing throughout the day and alleviated with medications. The Veteran's report of daily constant pain calls into question the ameliorative benefit of medications. To the extent the Veteran does have ameliorative benefits from medication, the Board finds such has been taken into account by the VA examination's worst case estimates of reduced range of motion during flareups and after repeated use over time. Thus, the evidence of record weighs against finding medication obscures loss of function beyond the estimates provided. Based on the foregoing, the Board finds that a disability rating of 30 percent, but no higher, is warranted under DC 5202 during the period on appeal. However, the evidence of record persuasively weighs against higher or separate ratings during the period on appeal. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, a disability rating of 30 percent, but no higher, is granted under DC 5202. 2. Entitlement to a disability rating in excess of 10 percent for a painful surgical scar of the left shoulder. The Veteran seeks an increased rating for his painful left shoulder surgical scar. See February 2026 VA Form 10182. Because the July 2025 rating decision on appeal assigned the initial 10 percent rating for the Veteran's painful left shoulder surgical scar, this claim is an initial rating claim with the period on appeal beginning May 10, 2025. The Veteran's scar is presently rated under two diagnostic codes, DC 7802 and DC 7804, under 38 C.F.R. § 4.118 Schedule of ratings - skin. Under DC 7802, which is applicable to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted if the scar affects an area or areas of 144 square inches (929 sq. centimeters) or greater. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, the Board notes that a 0 percent rating is assigned when the requirements for a compensable evaluation are not met pursuant to 38 C.F.R. § 4.3. Under DC 7804, one or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to DC 7804 instructs that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. Turning to the evidence, the Veteran attended an in person VA examination in July 2025. He had one scar on the anterior left shoulder measuring 10 centimeters to 0.5 centimeters from his Bankhart surgical procedure. He reported it was tender to palpation. The scar was not unstable with frequent loss covering the skin, not due to burns, did not have underlying tissue damage and did not result in functional impact. The approximate total area of the left upper extremity scar measured 5 centimeters squared. The Board has reviewed the evidence of record in conjunction with the applicable laws and regulations and finds that a disability rating in excess of 10 percent for the Veteran's left shoulder surgical scar is not warranted. Here, the Veteran has one scar that is painful to touch which is entirely commensurate with the assigned 10 percent rating under DC 7804. The scar is not unstable, however, so a higher rating under DC 7804 is not warranted. Nor is a compensable disability rating under DC 7802 warranted where the scar covers an area well under 144 square inches (929 sq. cm). The Board has also considered whether compensable disability ratings are warranted under other diagnostic codes. Because there are no scars to the Veteran's head, face or neck, DC 7800 is not for application. Nor is DC 7801 applicable where the Veteran does not have underlying soft tissue damage. Nor are there any disabling effects not considered under DCs 7800-04 implicating DC 7805. Based on the foregoing, the evidence of record persuasively weighs against the higher or separate ratings during the period on appeal. See Lynch, 21 F.4th at 781-82. Accordingly, a disability rating in excess of 10 percent for the Veteran's left shoulder scar is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Long, Kindra F. 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.