Citation Nr: 21006956 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-31 006 DATE: February 8, 2021 ORDER Entitlement to a disability rating greater than 30 percent for right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity is denied. FINDING OF FACT The record evidence shows that the Veteran’s service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity is manifested by, at worst, recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. CONCLUSION OF LAW The criteria for entitlement to a disability rating greater than 30 percent for right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5202 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1985 to January 1987. This case has a long and complicated procedural history. Most recently, in February 2019, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board questioned whether the Veteran should be in receipt of service connection and disability ratings for both right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity and for humerus impairment of the right shoulder since he was being compensated twice for the same symptomatology (which constituted impermissible pyramiding). The Board directed the AOJ to obtain an addendum opinion concerning the Veteran’s right shoulder symptomatology. This opinion was obtained in January 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In a December 2020 rating decision, the AOJ severed service connection for humerus impairment of the right shoulder effective December 1, 2020. The AOJ concluded that service connection had been awarded for this disability on the basis of clear and unmistakable error (CUE) because it constituted impermissible pyramiding. In other words, the AOJ found that the Veteran is not entitled to service connection and a separate disability rating for humerus impairment of the right shoulder as a matter of law. Given the AOJ’s action in severing service connection for humerus impairment of the right shoulder, the Board concludes that an issue with respect to an increased rating for this disability is moot. 1. Entitlement to a disability rating greater than 30 percent for right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to a disability rating greater than 30 percent for right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity. Despite the Veteran’s assertions to the contrary, the record evidence shows that his service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity is not more disabling than currently evaluated. It shows instead that this disability is manifested by, at worst, recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements (i.e., a 30 percent rating under DC 5003-5202). See 38 C.F.R. § 4.71a, DC 5003-5202 (2019). The Board notes initially that, because the Veteran reports that he is right-handed, his right shoulder is considered the major (or dominant) shoulder. The Board next notes that, on VA shoulder and arm conditions Disability Benefits Questionnaire (DBQ) in June 2012, the Veteran’s complaints included frequently feeling that his right shoulder is going to pop out (or dislocate) when abducting it to 90 degrees, an inability to reach overhead, and an inability to sleep on the right side due to right shoulder pain. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. A history of right shoulder dislocations was reported. The Veteran experienced flare-ups with his arms folded and sleeping with his hand under his head. Range of motion testing of the right shoulder showed flexion to 160 degrees with objective evidence of painful motion beginning at 45 degrees, abduction to 135 degrees with objective evidence of painful motion beginning at 85 degrees. The Veteran was able to perform repetitive range of motion testing without additional limitation of motion. Physical examination of the right shoulder in June 2012 showed less movement than normal and pain on movement, tenderness to palpation, no guarding, 4/5 muscle strength, positive Hawkins impingement test, empty-can test, and external rotation/infraspinatus strength test, negative lift-off subscapularis test, a history of mechanical symptoms, no history of recurrent dislocation of the glenohumeral joint, positive Crank apprehension and relocation test, acromioclavicular (AC) deformity due to arthritis, tenderness to palpation of the AC joint, and positive cross-body adduction test. X-rays showed arthritis. The diagnosis was degenerative arthritis of the right shoulder. VA x-rays of the Veteran’s right shoulder taken in October 2012 showed prior shoulder dislocations with secondary degenerative change. The Veteran reported to the emergency room (ER) at a VA Medical Center (VAMC) in December 2012 complaining of dislocating his right shoulder “during the night while sleeping with” his right arm above his head. “He grabbed the shoulder when he felt the pain and the dislocation was reduced via that instinctive maneuver.” A history of multiple prior right shoulder dislocations was noted. Physical examination showed warm extremities without edema, minimal right shoulder tenderness “generally but no anatomic deformity is apparent,” mild pain on range of motion testing of the right shoulder. X-rays of the right shoulder showed no evidence of acute fracture or dislocation and changes compatible with prior glenohumeral dislocation. The assessment included right shoulder dislocation spontaneously reduced at home. On VA shoulder and arm conditions DBQ in March 2019, the Veteran’s complaints included frequent popping out (or dislocation) of his right shoulder, an inability to function at work, drive, or sleep due to shoulder pain. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran stated, “The issues with my shoulder are continuous.” He experienced functional loss or impairment by being unable to lift his right arm over his head and had trouble driving. He reported “having issues with dressing himself and performing daily activities of living in regards to hygiene.” Range of motion testing of the right shoulder showed flexion to 95 degrees and abduction to 90 degrees. The Veteran was unable to perform repetitive range of motion testing due to pain. Physical examination of the right shoulder showed no tenderness to palpation, evidence of pain with weight bearing, objective evidence of crepitus, 3/5 muscle strength, positive Hawkins impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test, a history of mechanical symptoms, frequent episodes of recurrent dislocation, guarding of all movement, a positive Crank apprehension test, and a positive cross-body adduction test. The VA examiner stated that pain and weakness contributed to functional loss of the right shoulder. There was objective evidence of pain when the right shoulder is used in non-weight bearing. Passive range of motion was the same as active range of motion. The diagnoses were right shoulder degenerative arthritis with limitation of movement and Hill-Sachs deformity of the right side. In a January 2020 addendum opinion, the VA clinician who conducted the March 2019 VA examination stated that she had reviewed the Veteran’s claim file, including June 2010 and June 2012 VA examinations. This clinician stated that, over time and with flare-ups, pain, weakness, and fatigue could cause the range of motion of the Veteran’s right shoulder to be less than normal with flexion to 90 degrees and abduction to 85 degrees. Contrary to the Veteran’s lay assertions, the record evidence shows that his service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity is manifested by, at worst, recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements (as seen on VA examination in March 2019). The Veteran consistently has reported that his right shoulder frequently dislocates (or pops out). This medical history is supported by VA x-rays taken in October 2012 which showed prior shoulder dislocations with secondary degenerative change. Subsequent x-rays taken at a VAMC ER visit in December 2012 again confirmed changes compatible with prior glenohumeral dislocation. The Veteran’s most recent VA examination in March 2019 demonstrated that he had frequent episodes of recurrent dislocation and guarding of all movement in his right shoulder. There was objective evidence of pain when the right shoulder is used in non-weight bearing although passive range of motion was the same as active range of motion. The March 2019 VA examiner later concluded in January 2020 that, over time and with flare-ups, pain, weakness, and fatigue could cause the range of motion of the Veteran’s right shoulder to be less than normal with flexion to 90 degrees and abduction to 85 degrees. Taken together, the record evidence as a whole supports the assignment of the current 30 percent rating for the Veteran’s service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity under DC 5003-5202. See 38 C.F.R. § 4.71a, DC 5003-5202 (2019). There is no indication that the Veteran experiences fibrous union of the humerus, non-union of the humerus (false flail joint), or loss of head of the humerus (flail shoulder) as is required for a disability rating greater than 30 percent under this DC. Id. VA examinations conducted during the appeal period specifically found that none of these humerus conditions were present in the Veteran’s service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 30 percent for his service-connected right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity. Thus, the Board finds that the criteria for a disability rating greater than 30 percent for right shoulder degenerative arthritis with acromioclavicular joint separation and Hill-Sachs deformity have not been met. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.