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Yonek v. Shinseki

United States Court of Appeals, Federal Circuit

July 8, 2013

STEPHEN F. YONEK, Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in No. 10-3320, Judge Alan G. Lance, Sr.

Michael J. Flibbert, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Palo Alto, California, argued for claimant-appellant. On the brief were Gary C. Ma, of Palo Alto, California and Ronald L. Smith of Washington, DC. Of counsel was Holly J. Atkinson, of Palo Alto, California.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and L. Misha Preheim, Senior Trial Counsel. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martie Adelman, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before Dyk, Clevenger, and Moore, Circuit Judges.

Dyk, Circuit Judge.

Stephen F. Yonek appeals from the decision of the Court of Appeals for Veterans Claims ("Veterans Court") holding that diagnostic code ("DC") 5201 only allows a single disability rating for each injured shoulder even though Yonek's shoulder manifests limitation of motion with respect to both flexion and abduction. We affirm.

Background

Section 4.71a of the Department of Veterans Affairs ("VA") regulations sets forth a schedule of disability ratings for injuries and diseases of the musculoskeletal system. See 38 C.F.R. § 4.71a. Within that schedule, diagnostic code 5201 prescribes ratings for limitation of motion of the arm at the shoulder joint. See id., DC 5201. The code recognizes three levels of disability, based on the angle to which the veteran can raise his arm, and prescribes two possible ratings for each level of disability, corresponding to disability of the dominant ("[m]ajor") or non-dominant ("[m]inor") arm. Id. The disability ratings are expressed in terms of percentages, which "represent as far as can practicably be determined the average impairment in earning capacity resulting from" the corresponding disability. See 38 C.F.R. § 4.1. The code thus reads as follows:

5201 Arm, limitation of motion of:

Major

Minor

To 25° from side

40 [percent]

30 [percent]

Midway between side and shoulder level

30 [percent]

20 [percent]

At shoulder level

20 [percent]

20 [percent]

See § 4.71a, DC 5201.

Yonek served on active duty in the U.S. Navy from May 1973 to May 1977, and again from January 1991 to March 1992. In June 1991, Yonek suffered an aggravation of a preexisting injury to his right shoulder, which left the motion of his right arm permanently limited.

Following his discharge, Yonek filed a claim for disability compensation. The VA regional office ("RO") granted service connection for the right shoulder injury, assigning an initial rating of 10 percent. Over the next seventeen years, Yonek underwent at least fifteen examinations, aimed at establishing the extent to which the injury limited his range of motion. These examinations measured his range of motion in two different planes: flexion (elevation of the arm in a forward direction) and abduction (elevation of the arm outward from the side of the body). See generally 38 C.F.R. § 4.71 & Plate I (illustrating measurements of arm motion). The examinations gave widely divergent results, finding a range of motion of anywhere between 80 and 180 degrees in the flexion plane and 60 and 180 degrees in the abduction plane. In September 1999, the RO increased its rating of Yonek's right shoulder disability to 20 percent, apparently concluding that the motion in his dominant arm was limited to a point at or below shoulder level but past the midpoint between the side and the shoulder—that is, between 45 and 90 degrees.

Yonek appealed to the Board of Veterans' Appeals ("Board"), which denied him a rating in excess of 20 percent for his right shoulder disability. See In re Yonek, No. 03-13 844, slip op. at 14-15 (Bd. Vet.App. June 21, 2010).

Yonek then appealed the Board's decision to the Veterans Court, where he argued that he was entitled to separate ratings under diagnostic code 5201 for limitation of motion of his right arm in the flexion and abduction planes. The Veterans Court rejected his argument, concluding that diagnostic code 5201 only allows a single rating for limitation of motion, and that the plane in which the limitation of motion ...


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