Stephen Yonek v. Shinseki, 2013 U.S. App. LEXIS 13714

Stephen F. Yonek suffered an in-service aggravation of a right shoulder injury that permanently limited right arm motion; VA granted service connection and assigned ratings over time up to 20%.
Examinations over 17 years measured shoulder range of motion in two planes: flexion and abduction, with widely varying degree measurements.
VA Diagnostic Code (DC) 5201 sets percentage ratings for "limitation of motion of" the arm at the shoulder, with separate percentages for major (dominant) and minor (non-dominant) arm.
Yonek argued the VA must award separate ratings under DC 5201 for limitations in flexion and abduction (two planes) of the same shoulder.
The Board and the Veterans Court rejected Yonek's claim; the Federal Circuit reviewed the Veterans Court's legal determination de novo.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DC 5201 permits separate disability ratings for limitation of motion in different planes (flexion and abduction) of the same shoulder	Yonek: DC 5201 should allow separate ratings for each plane of limited motion under the regulatory schedule	Government: DC 5201 provides a single rating for limitation of motion of the arm at the shoulder; plane of motion is irrelevant	DC 5201 allows only a single rating per affected arm regardless of limitations in multiple planes

Keene Corp. v. United States, 508 U.S. 200 (1993) (court presumes deliberate inclusion or omission of language within related provisions)
King v. Shinseki, 700 F.3d 1339 (2012) (standard: de novo review of Veterans Court legal determinations)
Smith v. Nicholson, 451 F.3d 1344 (2006) (determine separate disabilities by reference to applicable diagnostic code)
Heinzelman v. Secretary of HHS, 681 F.3d 1374 (2012) (quotation of Keene on statutory/regulatory text interpretation)
Wanner v. Principi, 370 F.3d 1124 (2004) (content of VA disability ratings schedule is not subject to judicial review)