Citation Nr: 1307767 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-20 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. The propriety of the severance of service connection for migraine headaches. 2. The propriety of the severance of service connection for degenerative changes of the cervical spine. 3. The propriety of the reduction in disability for service-connected impingement syndrome of the right upper extremity from a 30 percent evaluation to a 0 percent evaluation. 4. Whether new and material evidence has been received to reopen a claim for service connection for fracture of the right clavicle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which severed service connection for migraine headaches and for degenerative changes of the cervical spine and reduced the disability rating for service-connected impingement syndrome of the right upper extremity from a 30 percent evaluation to a 0 percent (noncompensable) evaluation. In that rating decision, the RO also denied the Veteran's petition to reopen his previously denied claim for service connection for fracture of the right clavicle. The issue of whether new and material evidence has been received to reopen a claim for service connection for fracture of the right clavicle is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. A rating decision dated in October 2006 granted service connection for migraine headaches and for degenerative changes of the cervical spine, both as secondary to service-connected subcoracoid dislocation of the right shoulder with rotator cuff tear. 2. A rating decision dated in April 2009 severed service connection for migraine headaches and for degenerative changes of the cervical spine. 3. The evidence is in equipoise as to whether the Veteran's migraine headaches and degenerative changes of the cervical spine are etiologically linked to his service-connected subcoracoid dislocation of the right shoulder with rotator cuff tear and therefore does not clearly and unmistakably support the severance of service connection. 4. Service connection for impingement syndrome of the right upper extremity was granted by rating action dated in October 2006, at which time a 30 percent disability rating was assigned effective as of April 6, 2005. 5. In an April 2008 rating action, the RO proposed to reduce the rating for the service-connected impingement syndrome of the right upper extremity from 30 percent to 0 percent (a noncompensable evaluation). The Veteran was informed of the proposal in accordance with 38 C.F.R. § 3.105(e) by letter dated April 28, 2008. 6. By rating action dated in April 2009, the RO implemented a reduction to 0 percent for the service-connected impingement syndrome of the right upper extremity, effective July 1, 2009. Notice of the reduction was sent to the Veteran on April 24, 2009. 7. Evidence available at the time of the rating reduction did not reflect improvement in the service-connected impingement syndrome of the right upper extremity; there was no clear showing that symptoms had improved such that he no longer met the criteria for a 30 percent rating. CONCLUSIONS OF LAW 1. The criteria to sever service connection for the Veteran's migraine headaches have not been met; service connection is restored. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d) (2012). 2. The criteria to sever service connection for the Veteran's degenerative changes of the cervical spine have not been met; service connection is restored. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d) (2012). 3. The reduction of the 30 percent disability rating to a 0 percent disability rating for service-connected impingement syndrome of the right upper extremity was not proper. 38 U.S.C.A. §§ 1155, 5103, 5107, 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information or evidence necessary to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b). In cases involving the reduction or severance of service connection, which is an action initiated by the RO as opposed to the Veteran, there are particular notification and assistance procedures that VA must perform. 38 C.F.R. § 3.105(d). In the decision below, the Board has restored service connection for migraine headaches and for degenerative changes of the cervical spine. The Board has also restored the 30 percent rating assigned to the Veteran's service-connected impingement syndrome of the right upper extremity. Accordingly, regardless of whether VA successfully met its notification and assistance obligations, no harm or prejudice to the Veteran has resulted. I. Severance of Service Connection By rating decision in October 2006, service connection was established for migraine headaches and for degenerative changes of the cervical spine, both as secondary to the Veteran's service-connected subcoracoid dislocation of the right shoulder with rotator cuff tear. The award was made because the RO determined that the Veteran's migraine headaches and degenerative changes of the cervical spine were etiologically related to his service-connected subcoracoid dislocation of the right shoulder with rotator cuff tear. In granting service connection, the RO primarily relied on the report of a medical examination and opinion by a VA physician who submitted a letter dated in April 2006 addressing the Veteran's claimed disorders. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). See 38 C.F.R. § 3.105(d) (2012); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken. 38 U.S.C.A. §§ 5109A, 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(d) (2012). When VA seeks to sever service connection, the provisions of 38 C.F.R. § 3.105(d) impose the same burden of proof that is placed on a claimant who, pursuant to 38 C.F.R. § 3.105(a), seeks to have an unfavorable decision overturned, except that in making the determination of whether severance of service connection is proper, the review of the record is not limited to evidence that was before the RO at the time the original adjudication was made. See 38 C.F.R. § 3.105(d); Baughmann v. Derwinski, 1 Vet. App. 563, 566 (1991); Stallworth, 20 Vet. App. at 488; Daniels, 10 Vet. App. at 480. Initially, the Board finds that the RO complied with its notification obligations under 38 C.F.R. § 3.105(d). When the RO proposed to sever service connection, the Veteran was advised of the action by an April 2008 letter, which also informed him that he could request a hearing within 30 days and submit evidence within 60 days of the proposed severance. The Veteran requested a hearing, and an informal hearing was held in September 2008. The RO then issued a rating decision severing service connection in April 2009, effective July 1, 2009. In short, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(d). Accordingly, the remaining issue is whether the severance was in accordance with the applicable law and regulations. In that connection, the Board notes that "clear and unmistakable error" (CUE) is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. See Fugo, 6 Vet. App. at 43-44 (citing Russell v. Principi, 3 Vet. App. 310, 313 (1992)). The error must be undebatable and of the sort that, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. The Court of Appeals for Veterans Claims has propounded a three-pronged test to determine whether clear and unmistakable error was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed a the time of the prior adjudication in question. Grover v. West, 12 Vet. App. 109, 111-112 (1999); Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, supra at 43- 44. Although the same standards applied in a determination of clear and unmistakable error in a prior decision are applied to a determination of whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection, reviewable evidence in a severance claim is not limited to that which was before the RO in making its initial service connection award. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). The evidence at the time of the October 2006 decision that granted service connection included the Veteran's service treatment records, as well as the reports of VA examiners dated in August 2003, April 2005, and April 2006. The Veteran was not found to have neck problems or headaches in service, but he was treated for a right shoulder dislocation while on active duty. He was granted service connection in September 1980 for subcoracoid dislocation of the right shoulder with rotator cuff tear. Post-service records document that the Veteran has sought treatment on an ongoing basis for both neck problems and headaches. A VA examination in August 2003, the Veteran was diagnosed with tension headaches that the examiner found not likely related to service. Similarly, at an April 2005 VA examination, the Veteran complained of pain in his cervical spine that radiated to his right shoulder and fingers, as well as decreased sensation to his right upper extremity. The examiner stated that he could not offer an etiological opinion as to a relationship between the Veteran's neck disorder and his service-connected right shoulder disability without resorting to speculation. In April 2006, a VA examiner submitted a letter addressing the etiology of the Veteran's neck problems and headaches. In the letter, the examiner opined that the Veteran's degenerative changes of the cervical spine are more likely than not related to his service-connected right shoulder disorder. In so finding, the examiner noted that the Veteran stated that his neck problems began shortly after the in-service fall in which he dislocated his shoulder. The examiner pointed out that spasm in the shoulder muscles can cause neck pain and that his shoulder muscles could have been injured in the initial right shoulder injury. The examiner further opined that the Veteran's headaches are at least as likely as not due to his neck disorder, pointing out that the muscle spasm causing his headaches could be caused by his neck disability. After the rating, medical evidence came to light that the RO perceived as calling into question the etiology of the Veteran's migraine headaches and degenerative changes of the cervical spine. Particularly, the RO looked to an October 2007 letter submitted by the VA examiner who had initially offered positive nexus opinions regarding the etiology of the Veteran's migraines and degenerative changes of the cervical spine. In that letter, the VA examiner stated that, although she continued to find the Veteran's cervical spine disorder to be due, at least in part, to his service-connected right shoulder dislocation, her review of the claims file led her to find that "it is less clear that [muscle spasms in the Veteran's cervical spine] is related only to the shoulder injury." Similarly, the examiner stated that she continued to find the Veteran's migraines to be at least as likely as not related to his cervical spine disorder but opined that it was also possible that the headaches could be due to his history of manual labor or stress in addition to his service-connected cervical spine disability. The Veteran also underwent VA examination in March 2009. At that time, the examiner diagnosed the Veteran with chronic daily headaches and intermittent migraines, as well as cervical disk bulging with mild foramina narrowing and/or stenosis. The examiner opined that the Veteran's neck pain and migraines are not etiologically linked to his right shoulder disorder. In so finding, he stated only that he could "find nothing in the literature to support the contention that the shoulder pain is causing the neck pain and migraine headaches." Based entirely on the findings set forth in the October 2007 letter, the RO proposed severance of service connection in an April 2008 rating action. The proposed severance was effected in an April 2009 rating action. The Veteran appeals the severance and seeks restoration of service connection. As discussed previously, the evidence must establish that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). In other words, the evidence must be undebatable that the Veteran did not meet the criteria for an award of service connection for the disability. This is a much higher burden of proof than that which is necessary for simply denying a Veteran's claim for service connection. In the latter case, all that is essentially required is that the evidence show that it is less likely than not that a Veteran meets the service connection criteria (i.e., that the preponderance of the evidence is against the service connection claim). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In finding that severance was warranted in the April 2009 decision, the RO essentially determined that the evidence did not support a finding that the Veteran's migraine headaches and cervical spine disorder were etiologically linked to his service-connected right shoulder disorder. However, it is not undebatable that this is so. There is evidence from VA examinations conducted in August 2003, April 2005, and March 2009 to the effect that the Veteran's migraine headaches and cervical spine disorder are not related to service-connected disability. Notably, however, the evidence is not clear and undebatable that these disorders are not related, at least in part, to the Veteran's service-connected right shoulder disorder. To that end, the Board looks again to the April 2006 and October 2007 letters in which the VA examiner offered well-reasoned positive nexus opinions for both the Veteran's migraine headaches and his cervical spine disorder. Thus, the Board finds that the evidence relied upon by the RO in severing service connection does not clearly and unmistakably show that the Veteran's migraines and cervical spine disorder are not related to his service-connected right shoulder disability. In addition, the Board finds that the post-service evidence, particularly the April 2006 and October 2007 letters from the Veteran's VA examiner, actually supports the Veteran's claims of service connection. In both letters, the examiner clearly stated that she found it at least as likely as not that the Veteran's current cervical spine condition was related to his service-connected right shoulder disorder, and that his migraine headaches are related to his neck disability. Although the examiner pointed out other possible etiologies for both disorders in her October 2007 letter, the fact remains that she confirmed her findings that the Veteran's neck disorder is at least as likely as not due to the Veteran's right shoulder dislocation and rotator cuff tear, and that it is at least as likely as not that his migraine headaches are due to his cervical spine disorder. Significantly, in granting service connection for degenerative migraine headaches and degenerative changes of the cervical spine, the RO did not unreasonably apply the law to the facts of the case. In fact, it appears quite reasonable that service connection was warranted for both migraine headaches and a cervical spine disorder, particularly in light of the April 2006 VA examiner's opinion. Furthermore, the Board notes that, in the October 2007 letter relied on by the RO in severing service connection, the April 2006 VA examiner in fact confirmed her opinions that the Veteran's migraines and cervical spine disorder are etiologically linked to his service-connected right shoulder disorder. After the severance action, the RO obtained another VA medical examination and opinion in March 2009. In the report, a VA physician gave the opinion that the Veteran's claimed headaches and cervical spine disorder are not likely related to his service-connected right shoulder disorder, stating that he could "find nothing in the literature to support the contention that the shoulder pain is causing the neck pain and migraine headaches." The Board does not find that this report shows there was clear and unmistakable error in the grant of service connection. In so finding, the Board again notes the positive opinions offered by a different VA examiner in April 2006 and again in October 2007, opinions that are more fully explained and reasoned in finding that the Veteran's cervical spine disorder is likely related to his service-connected right shoulder disability and that his headaches are likely related to his cervical spine disorder. Thus, the October 2007 and March 2009 opinions are not persuasive and certainly do not contain sufficient evidence showing that there was clear and unmistakable error in the grant of service connection. In consideration of the evidence of record, the Board finds that the evidence does not show that the October 2006 grant of service connection for migraine headaches and degenerative changes of the cervical spine was clearly and unmistakably erroneous. The high evidentiary burden of showing clear and unmistakable error in the October 2006 grant of service connection has not been met. Thus, the severance was improper, and service connection for migraine headaches and degenerative changes of the cervical spine must be restored. II. Restoration of 30 Percent Rating The Veteran asserts that his impingement syndrome of the right upper extremity has not improved since the establishment of service connection in October 2006, wherein an initial 30 percent disability rating had been assigned effective as of April 6, 2005. Generally, a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2012). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received within 30 days, benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1) (2012). The record reflects that in an April 2008 letter, the Veteran was notified of a proposal to reduce the disability rating assigned for his impingement syndrome of the right upper extremity. He was additionally notified that he had 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level, and that if he did not respond within those 60 days, his disability rating would be reduced. The record reflects that the Veteran responded to this letter with a request a pre-determination hearing, which was held in September 2008. Evaluating the chronology of the process described above, the Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. 38 C.F.R. § 3.344(a)(b) (2012). Those regulations provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are applicable for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities that have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. Similar protections are afforded to Veterans who have been awarded a total rating based on unemployability. 38 C.F.R. § 3.343 (2012). In this case, however, the 30 percent disability rating for impingement syndrome of the right upper extremity was in effect for less than 5 years: from April 6, 2005, to July 1, 2009. Therefore, the provisions of 38 C.F.R. § 3.344(a) and 38 C.F.R. § 3.344(b) are not applicable. 38 C.F.R. § 3.344(c) (2012). An examination disclosing improvement will, therefore, warrant reduction in the rating. 38 C.F.R. § 3.344(c) (2012). The question is, thus, whether an examination had shown an improvement warranting reduction of the rating. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Further, the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's impingement syndrome of the right upper extremity was evaluated under Diagnostic Code 8515, paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). Under that Diagnostic Code, ratings are applied based on whether the disabled extremity is the major or minor extremity. Here, the record shows that the Veteran is right handed; therefore, evaluation of the Veteran's impingement syndrome of the right upper extremity will be evaluated utilizing the ratings applicable to the major extremity. Under Diagnostic Code 8515, in relevant part, a 10 percent rating is for application when there is incomplete mild disability in either the minor or major extremity. A 30 percent rating is for application when there is moderate disability of the major extremity. A 50 percent rating is for application when there is severe disability of the major extremity. A 70 percent rating is for application when there is complete paralysis of the major extremity. Id. The Veteran was awarded service connection for impingement syndrome of the right upper extremity by rating action dated in October 2006, at which time a 30 percent disability rating was assigned effective as of April 6, 2005. At the time of the October 2006 rating decision, the evidence of record included VA examination conducted in April 2005. At the April 2005 VA examination, the Veteran complained of pain in his right cervical spine that radiated into his shoulder and down into his right fingers. The Veteran also complained of numbness and tingling into his right fingers, as well as being unable to make a fist. He stated that the pain in his right upper extremity increased over the course of a work day and rendered him unable to use his right shoulder and hand by the end of the day. Sensation testing revealed decreased sensation of his right fingers over a median nerve distribution. The Veteran was also found to be unable to touch his palmar crease with his right thumb, and the grasp in his right fingers was decreased. The Veteran was seen by VA treatment providers in July 2005 for ongoing complaints of pain and numbness radiating into his right upper extremity. EMG testing at the time returned normal results, although possible mild cervical dystonia was noted. He was diagnosed with impingement syndrome in the right upper extremity in August 2005, at a treatment visit in which he complained of pain and numbness in his right hand. By rating action dated in April 2009, the Veteran's 30 percent disability rating for his impingement syndrome of the right upper extremity was reduced to 0 percent, effective as of July 1, 2009. In effecting the reduction, the RO reasoned that the assignment of a separate 30 percent disability rating constituted impermissible pyramiding under 38 C.F.R. § 4.14 (2012). In so finding, the RO reasoned that the Veteran was already being compensated for problems with his right shoulder under 38 C.F.R. § 4.73, Diagnostic Code 5304 (2012), governing muscle injuries. The RO looked to 38 C.F.R. .§ 4.55 (2012), which establishes that a muscle injury rating will not be combined with a peripheral nerve paralysis rating for the same body part unless the injuries affect entirely different functions. Apparently concluding that the Veteran's service-connected right shoulder dislocation and impingement syndrome were not addressing disabilities affecting different functions, the RO reasoned that the Veteran was thus not allowed separate compensation for a neurological injury. In a letter dated in September 2008, the Veteran's private physician submitted a letter stating that he had treated the Veteran for complaints of dysesthesias extending below his elbow in his right upper extremity. The physician noted that those symptoms appear to be "neurologic in origin." Records from the Veteran's VA treatment reflect that he was seen in May 2010 for ongoing complaints of radiating pain in the right shoulder. At that time, the examiner again diagnosed the Veteran with impingement syndrome with adhesive capsulitis. The Veteran underwent VA examination in March 2009. At that time, the Veteran again complained of constant numbness and tingling in his right hand, as well as fatigue in the right arm and diminished grip in the right hand. Physical examination showed good strength in the right upper extremity, with intact sensation and questionable weakness of flexion of the fourth and fifth digits. Having considered the evidence of record in this case, the Board finds that the reduction to a noncompensable rating for the Veteran's impingement syndrome of the right upper extremity was not proper. In this regard, although the March 2009 VA examination report showed the Veteran to have essentially normal strength and sensation in his right upper extremity, a later VA treatment record dated in May 2010 reflects that the Veteran continued to carry a diagnosis of impingement syndrome in the right upper extremity. In addition, he has continued to complain of pain and numbness in his right arm and fingers. In light of the foregoing, the Board finds that the March 2009 VA examination did not reflect sustained improvement in the Veteran's disability so as to warrant a reduction of his assigned disability rating. In so finding, the Board observes that the RO appears not to have based its rating reduction on any perceived improvement in the Veteran's impingement syndrome of the right upper extremity. Rather, the RO reasoned that a separately compensable evaluation for the Veteran's impingement syndrome of the right upper extremity was impermissible pyramiding under 38 C.F.R. § 4.14, which forbids compensating the same disability under more than one Diagnostic Code. In so finding, the RO pointed to 38 C.F.R. § 4.55, which states that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part unless the injures affect entirely different functions. Here, the Board acknowledges that the Veteran is currently assigned a 30 percent disability rating for subcoracoid dislocation of the right shoulder with rotator cuff tear. This disability was initially rated under 38 C.F.R. § 4.73, Diagnostic Code 5304, governing injury to Muscle Group IV. However, the Board notes that since at least 1996, the Veteran's right shoulder dislocation has been rated not under 38 C.F.R. § 4.73 but under 38 C.F.R. § 4.71a, governing orthopedic disabilities. These Diagnostic Codes specifically provide for the separate evaluation of associated objective neurologic abnormalities. The Board thus concludes that the ratings for the Veteran's subcoracoid dislocation of the right shoulder with rotator cuff tear (rated as an orthopedic disability) and for impingement syndrome of the right upper extremity (rated as a neurologic disability) are assigned for entirely different functions of the Veteran's shoulder and address entirely separate systems-orthopedic and neurological-and symptoms. Thus, 38 C.F.R. § 4.55 is inapplicable, and there is no impermissible pyramiding under 38 C.F.R. § 4.14. As the findings of the March 2009 VA examination report did not reflect a sustained improvement in the Veteran's impingement syndrome of the right upper extremity, and because the ratings assigned for subcoracoid dislocation of the right shoulder with rotator cuff tear (and for impingement syndrome of the right upper extremity do not amount to impermissible pyramiding under 38 C.F.R. §§ 4.55 and 4.14, the April 2009 reduction of the disability rating for the service-connected impingement syndrome of the right upper extremity from 30 percent to 0 percent was not proper. Therefore, restoration of the 30 percent disability rating for the Veteran's service-connected impingement syndrome of the right upper extremity, effective July 1, 2009, is warranted. ORDER Service connection for migraine headaches is restored; the appeal is granted. Service connection for degenerative changes of the cervical spine is restored; the appeal is granted. The appeal for restoration of a 30 percent rating for service-connected impingement syndrome of the right upper extremity from July 1, 2009, is granted. REMAND The Board finds that further action by the agency of original jurisdiction (AOJ) is necessary before a decision can be reached on the merits of the Veteran's petition to reopen his previously denied claim of service connection for a fracture of the right clavicle. At the outset, the Board notes the enactment of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the RO certified the case to the Board in February 2012, following the issuance of an SSOC in July 2011. Following the issuance of the SSOC, the RO obtained evidence consisting of records of the Veteran's ongoing treatment at the Fargo VA Medical Center from August 2011 to August 2012. The RO has not considered this newly submitted evidence in relation to the Veteran's petition to reopen his previously denied claim of service connection for a fracture of the right clavicle. The Board sent the Veteran a letter in December 2012 asking if he wished to waive RO consideration of the new evidence and informing him that if he did not respond, the Board would remand the case for adjudication by the AOJ. The Veteran did not respond to that letter. Accordingly, and because the Veteran has not waived his right to have the evidence reviewed by the RO in the first instance, his case must be returned to the AOJ for re-adjudication. 38 C.F.R. § 20.1304(a), (c) (2012). In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must be sent a letter requesting that he provide sufficient information and, if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record. The AOJ must explain the type of evidence VA will attempt to obtain as well as the type of evidence that is his ultimate responsibility to submit. 2. After completing the requested actions and any additional notification and/or development deemed warranted, the petition to reopen his previously denied claim of service connection for a fracture of the right clavicle must be adjudicated in light of all pertinent evidence and legal authority. In adjudicating the claim, the AOJ must specifically consider all newly submitted evidence, to include in particular the VA treatment records obtained by the AOJ dating from August 2011 to August 2012. If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs