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

______________________ 

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 respondentappellee. 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 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 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 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 
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, concluding 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 irrelevant. 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 limited 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 regulatory 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 decision 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 suggests 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 diagnostic code 5261 provides ratings for “limitation of extension.” 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 diagnostic 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 inclusion 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 interpretation of diagnostic code 5201. Plate I “provide[s] a 

standardized description of . . . joint motion measurement,” 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 limitation 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 diagnostic 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 separate “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 account limitation of motion “in different planes” does not 

require the VA to create separate diagnostic codes. Finally, 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 “limitation 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 excludes 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.