# 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

.

______________________

Decided: July 8 , 2013

______________________

M ICHAEL J. F L IBBERT , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Palo Alto, Califo rnia, argued for claimant

- appellant. On the brief were
G ARY C. M A , of Palo Alto, California and R ONALD L. S MITH of Washington, DC. Of counsel was H OLLY J. A TKINSON

, of Palo Alto, California.

T ARA K. H OGAN , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent

appellee. On the brief were S TUART F. D ELERY , Principal Depu ty Assistant Attorney General, J EANNE E. D AVIDSON

, Director, M ARTIN F. H OCKEY

, J R
., Assistant Director, and
L. M ISHA P REHEIM , Senior Trial Counsel. Of counsel onSTEPHEN YONEK v. SHINSEKI 2

the brief were D AVID J. B ARRANS

, Deputy Assistant Ge neral Counsel, and M ARTIE A DELMAN , Attorn ey, United States Department of Veterans Affairs, of Washington,
DC.

______________________

Before D YK
, C LEVENGER

, and M OORE

, Circuit Judges.

D YK
, 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.

B ACKGROUND

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 p rescribes 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 corr esponding 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 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, Yone k filed a claim for dis ability 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,
ai med at establishing the extent to which the injury limited his range of motion. These examinations mea sured his range of motion in two different planes: flexion (elevation of the arm in a forward direction) and abdu ction (elevation of the arm outward from the side of the body). See generally 38 C.F.R. § 4.71 & Plate I (illustra ting 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 ra ting of Yonek’s right shoulder disability to 20 percent, apparently co ncluding 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 Boar d’s decision to the Ve terans Court, where he argued that he was entitled toSTEPHEN YONEK v. SHINSEKI 4

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, co ncluding 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 irrel evant. 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).

D ISCUSSION

The plain language of section 4.71a confirms tha t a veteran is only entitled to a single disability rating under diagnostic code 5201 for each arm that suffers from li mited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in
the flexion and abd uction 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 rat ings,” but argues that “when viewed from within the context of the regul atory 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 d ecision 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 pure ly factual issue. See 38 U.S.C. § 7292(d)(2)

.STEPHEN YONEK v. SHINSEKI 5

But nothing in the remainder of section 4.71a su ggests that di agnostic 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. F or the knee, diagnostic code 5260 sets forth a schedule of ratings for “limitation of flexion,” while dia gnostic code 5261 provides ratings for “limitation of exte nsion.” Id.

, DCs 5260, 5261; see also Office of the Gen. Counsel, U.S. Dep’t of Veterans Affa irs, 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
cod es 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 d iagnostic 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 incl usion 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 ofSTEPHEN YONEK v. SHINSEKI 6

planes in which the arm’s motion is limited. See id.

, DC

5201.

Nor does Plate I of section 4.71 suggest a different i nterpretation of diagnostic code 5201. Plate I “provide[s] a standardized description of .

. . joint motion measur ement,” 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 shoulde r 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 lim itation 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 dia gnostic 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 sep arate “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 pl anes 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 a ccount limitation of motion “in different planes” does not require the VA to create separate diagnostic codes. Fina lly, contrary to Yonek’s assertion, the opinion of the VA’s general counsel holding t hat “[s]eparate ratings under [diagnostic code] 5260 (leg, limitation of flexion) andSTEPHEN 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 dif ferent 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

5 201 governs, and allows only a single rating for “limit ation 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 e xcludes from judicial review all content of the [disabili ty] 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

C OSTS

No costs.