Estevez: Shoulder Rotation Ratings Explained

Estevez v. McDonough, Case Number 20-8637, decided May 19, 2023 addressed shoulder rotation ratings under the pre-amendment version of Diagnostic Code 5201 (limitation of motion of the arm). 

The Board denied entitlement to a shoulder rating greater than 20% under then DC 5201 because ROM from 2010 and 2019 revealed limited abduction at 90 degrees.  “The Board acknowledged that Mr. Estevez's right shoulder disability caused additional functional loss due to pain and an inability to carry heavy objects, but it concluded that a higher evaluation was not warranted because, even factoring in that additional functional loss, his level of disability did not more nearly approximate arm motion limited to midway between the side and shoulder level.”  Id. at *4.

DC 5210 was amended effective February 2021 to clarify the terminology related to the shoulder.  The veteran argued the Board, in focusing solely on limitation of abduction, misinterpreted pre-amendment DC 5201 to exclude his limited shoulder internal rotation.  The Court noted “The veteran's argument is based on simple math. In his view, a 30% evaluation under preamendment DC 5201 required limitation midway between side and shoulder level, which he calculates as 45°, and a 20% evaluation required limitation at shoulder level, which he calculates as 90°. He reasons that, because the 2020 version of DC 5201 did not specify any particular type of limited arm motion, the October 2019 VA examiner's finding of internal rotation limited to 55° more nearly approximates the criteria for a 30% evaluation because 55° is numerically closer to 45° than to 90°.”  Id. at *7.

The Court noted that Section 4.71 “identifies different starting points for measuring shoulder flexion and abduction (from anatomical position as 0°) and for shoulder internal and external rotation (from the position of the "arm abducted to 90°, elbow flexed to 90° with the position of the forearm reflecting the midpoint 0° between internal and external rotation of the shoulder" as 0°). For shoulder flexion and abduction, Plate I depicts movements away from the side of the body in the sagittal and coronal planes, respectively, whereas for shoulder rotation, it depicts movements in the transverse plane around a different axis. 38 C.F.R. § 4.71, Plate I.  7 Plate I also specifies different numeric ranges of motion for shoulder flexion and abduction (0° to 180°) and internal and external rotation (0° to 90°). Id. These differences are fatal to Mr. Estevez's proposed interpretation because only the method for measuring shoulder flexion and abduction comports with the pre-amendment evaluation criteria.”  Id. at *9. 

The Court concluded: “In short, although pre-amendment DC 5201 did not specify that it applied only to certain types of arm motions, the language and structure of the DC indicates that it was, in fact, limited to shoulder flexion and abduction. Given that Mr. Estevez argues only that the Board committed reversible error in not awarding a higher right shoulder evaluation under that DC based on his limited shoulder internal rotation, and given that he did not argue that the Board committed any other error in evaluating that disability, the Court will affirm that portion of the Board decision.”  Id. at *12.

The Court also considered a knee and lichen planus issue that resulted in remand and are of lesser importance.

This veteran made a good argument for a higher shoulder rating that was simply not accepted by the Court based on the totality of the diagnostic code.

Decision by Chief Judge Bartley and joined by Judges Pietsch and Laurer.

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