Stephen Yonek v. Shinseki

United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN F. YONEK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7120
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3320, Judge Alan G. Lance, Sr.
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Decided: July 8, 2013
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MICHAEL J. FLIBBERT, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, of Palo Alto, Califor-
nia, 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 Litiga-
tion 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
2 STEPHEN YONEK v. SHINSEKI
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral 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 pre-
scribes 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 corre-
sponding disability. See 38 C.F.R. § 4.1. The code thus
reads as follows:
5201 Arm, limitation
Major Minor
of motion of:
To 25° from side 40 [percent] 30 [percent]
Midway between side 30 [percent] 20 [percent]
STEPHEN YONEK v. SHINSEKI 3
and shoulder level
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 disa-
bility 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 meas-
ured his range of motion in two different planes: flexion
(elevation of the arm in a forward direction) and abduc-
tion (elevation of the arm outward from the side of the
body). See generally 38 C.F.R. § 4.71 & Plate I (illustrat-
ing 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 con-
cluding 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 Vet-
erans Court, where he argued that he was entitled to
4 STEPHEN YONEK v. SHINSEKI
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, con-
cluding that diagnostic code 5201 only allows a single
rating for limitation of motion, and that the plane in
which the limitation of motion manifests itself is irrele-
vant. See Yonek v. Shinseki, No. 10-3320, slip op. at 3
(Vet. App. Feb. 17, 2012). 1
Yonek appealed to this court. Our jurisdiction in this
case is governed by 38 U.S.C. § 7292. We review the
Veterans Court’s legal determinations de novo. See King
v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).
DISCUSSION
The plain language of section 4.71a confirms that a
veteran is only entitled to a single disability rating under
diagnostic code 5201 for each arm that suffers from lim-
ited motion at the shoulder joint. The 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. See 38
C.F.R. § 4.71a, DC 5201. Yonek indeed admits that “[t]he
text of [diagnostic code] 5201, viewed in isolation, . . . does
not explicitly provide for separate ratings,” but argues
that “when viewed from within the context of the regula-
tory schedule, the regulatory schedule shows an intent to
provide for separate ratings of these movements.” Reply
Br. 1.
1 The Veterans Court also affirmed the Board’s de-
cision that Yonek was only entitled to a 10 percent rating
for a service-connected injury to his left shoulder. See id.,slip op. at 2. To the extent that Yonek challenges this
decision on appeal, we lack jurisdiction to review it, since
it presents a purely factual issue. See 38 U.S.C.
§ 7292(d)(2).
STEPHEN YONEK v. SHINSEKI 5
But nothing in the remainder of section 4.71a sug-
gests that diagnostic code 5201 does not mean what it
says. Significantly, parts of section 4.71a addressing
joints other than the shoulder assign different codes to
limitation of motion in different planes, or to limitation of
motion in different directions within a single plane. With
regard to the thigh, for example, diagnostic code 5253
assigns a rating of 20 percent to “[l]imitation of abduction
[to] 10°,” while diagnostic code 5252 assigns ratings to
“limitation of flexion” to various angles. Id., DCs 5252,
5253. For the knee, diagnostic code 5260 sets forth a
schedule of ratings for “limitation of flexion,” while diag-
nostic code 5261 provides ratings for “limitation of exten-
sion.” Id., DCs 5260, 5261; see also Office of the Gen.
Counsel, U.S. Dep’t of Veterans Affairs, Prec. Op. 9-2004,
Rating Limitation of Flexion and Extension of the Leg
(2004) (“General Counsel’s Rating Opinion”) (holding that
diagnostic codes 5260 and 5261 allow separate ratings for
limitation of flexion and extension). Similarly, diagnostic
codes 5206 and 5207 provide ratings for limitations of
flexion and extension at the elbow joint, respectively. 38
C.F.R. § 4.71a, DCs 5206, 5207.
In light of section 4.71a’s assignment of separate di-
agnostic codes to limitation of motion in different planes
(or in different directions within a single plane) of the
thigh, knee, and elbow, its failure to assign separate
diagnostic codes to limitation of motion of the arm at the
shoulder joint in the flexion and abduction planes is
noteworthy. “Where [an agency] includes particular
language in one section of a [regulation] but omits it in
another . . . , it is generally presumed that [the agency]
acts intentionally and purposely in the disparate inclu-
sion or exclusion.” See Keene Corp. v. United States, 508
U.S. 200, 208 (1993) (quotation marks and alteration
omitted); see also Heinzelman v. Sec’y of HHS, 681 F.3d
1374, 1382 (Fed. Cir. 2012) (quoting Keene). The plain
meaning of diagnostic code 5201, therefore, is that any
“limitation of motion of” a single arm at the shoulder joint
constitutes a single disability, regardless of the number of
6 STEPHEN YONEK v. SHINSEKI
planes in which the arm’s motion is limited. See id., DC
5201.
Nor does Plate I of section 4.71 suggest a different in-
terpretation of diagnostic code 5201. Plate I “provide[s] a
standardized description of . . . joint motion measure-
ment,” showing how the angles referred to in diagnostic
code 5201 are to be measured. See 38 C.F.R. § 4.71 &
Plate I. The fact that Plate I illustrates separately how to
measure motion of the shoulder joint in the flexion and
abduction planes merely demonstrates that limitation of
motion in either plane may establish a compensable
disability under diagnostic code 5201, see Mariano v.
Principi, 17 Vet. App. 305, 317 (2003), and not that limi-
tation of motion in both planes constitutes two separate
disabilities.
Yonek cites three additional sources of authority, but
none of these sources supports his interpretation of diag-
nostic code 5201. Section 4.25 of the VA’s regulations
provides that “[e]xcept as otherwise provided . . . , the
disabilities arising from a single disease entity . . . are to
be rated separately.” 38 C.F.R. § 4.25(b). In order to
determine whether the veteran has manifested two sepa-
rate “disabilities” within the meaning of section 4.25,
however, we must look to the diagnostic code under which
the veteran was diagnosed. See Smith v. Nicholson, 451
F.3d 1344, 1350 (Fed. Cir. 2006). Here, the diagnostic
code indicates that only a single disability is involved,
regardless of the number of planes in which the motion of
the arm is limited. Yonek also relies on section 4.45,
which provides that in assessing disabilities of the joints,
“the factors of disability reside in reductions of their
normal excursion of movements in different planes.” See
38 C.F.R. § 4.45. This general directive to take into ac-
count limitation of motion “in different planes” does not
require the VA to create separate diagnostic codes. Final-
ly, contrary to Yonek’s assertion, the opinion of the VA’s
general counsel holding that “[s]eparate ratings under
[diagnostic code] 5260 (leg, limitation of flexion) and
STEPHEN YONEK v. SHINSEKI 7
[diagnostic code] 5261 (leg, limitation of extension) . . .
may be assigned for disability of the same joint” does not
suggest that limitation of motion of the arm in different
planes can be compensated separately under a single
diagnostic code. See General Counsel’s Rating Opinion,
supra, at 4. That opinion was limited to the question of
“whether rating under more than one diagnostic code is in
order” when a veteran manifests various limitations of
motion in the same knee. See id. at 3 (emphasis added). It
does not suggest that two ratings are permissible under a
single diagnostic code.
In this case, the plain language of diagnostic code
5201 governs, and allows only a single rating for “limita-
tion of motion of” an arm. See § 4.71a, DC 5201. Any
alleged error in the code itself is beyond our scope of
review. See Wanner v. Principi, 370 F.3d 1124, 1129 (Fed.
Cir. 2004) (“The statutory scheme . . . consistently ex-
cludes from judicial review all content of the [disability]
ratings schedule . . . .”).
We therefore affirm the decision of the Veterans
Court holding that diagnostic code 5201 only allows a
single disability rating for each affected arm.
AFFIRMED
COSTS
No costs.