Citation Nr: 1330943 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-12 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for migraine headaches. 2. Entitlement to an initial rating in excess of 10 percent for left shoulder impingement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the claims file is currently held by the RO in Atlanta, Georgia. The Veteran's July 2008 notice of disagreement (NOD) also initiated an appeal to a claim for an increased initial rating for obstructive sleep apnea. The February 2010 statement of the case (SOC) included this issue, but the Veteran specifically excluded it from the March 2010 substantive appeal and the appeal was never perfected. The appeal has not been certified to the Board and the Veteran has not indicated that he wishes to pursue this claim. The Board finds that VA has not explicitly or implicitly waived the requirement for a substantive appeal. See Percy v. Shinseki, 23 Vet.App. 37 (2009). Therefore, the claim for an increased initial rating for obstructive sleep apnea is not currently before the Board. On the March 2010 substantive appeal, the Veteran stated that he experienced symptoms in his right shoulder similar to the symptoms manifested by the service-connected left shoulder. It is unclear whether the Veteran intended to file a claim for compensation for the right shoulder. This issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action, to include seeking clarification from the Veteran. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered in this case. Specifically, the Veteran should be provided VA examinations to determine the current severity of his service-connected migraine headaches and left shoulder impingement. The Veteran's most recent VA contract examination was conducted in July 2007, more than six years ago. At that time, he complained of severe headaches occurring approximately once a month and left shoulder pain that limited his ability to perform heavy lifting and work above his head. The VA contract examiner noted that a left shoulder X-ray and MRI were normal. Since the July 2007 examination, the Veteran has submitted evidence indicating worsening of the service-connected conditions. With respect to his headaches, he stated in July 2008 that his migraines occurred two to three times a month and he submitted letters from his employer and supervisor in March 2010 describing the occupational effects of the disability. Regarding the left shoulder, private treatment records document arthritis and tendinosis of the rotator cuff from an October 2008 MRI and continuing complaints of pain and limited motion. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is also competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The record contains both medical and lay evidence indicating worsening of the service-connected migraine headaches and left shoulder impingement, and new VA examinations are required by the duty to assist. Accordingly, the case is REMANDED for the following action: 1. The Veteran should adequately identify all providers of medical treatment for his service-connected left shoulder impingement and migraine disorders since 2007. After obtaining any necessary authorization(s) from the Veteran, obtain complete records, to include those from The Hughston Clinic developed since November 2008. 2. Afford the Veteran a VA examination to determine the current severity of the service-connected migraine headaches. The Veteran's claims file must be made available to the examiner prior to the examination. a. The examiner should determine whether the Veteran's headaches manifest as very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability; and b. The examiner should address the impact of the Veteran's migraines on his employability. A full rationale (i.e. explanation) must be provided for all proffered medical opinions. 3. Afford the Veteran a VA examination to determine the current severity of the service-connected left shoulder disability. The Veteran's claims file must be made available to the examiner prior to the examination. All indicated tests and studies should be performed, including range of motion studies in degrees. The examiner should determine whether the shoulder disability is manifested by weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination. To the extent possible, the examiner should specify any decrease in range of motion due to flare-ups of symptoms in degrees. The examiner should also determine: a. Whether it is at least as likely as not that the arthritis of left shoulder (see 2008 MRI report) was caused by the service-connected left shoulder impingement; and b. Whether arthritis of left shoulder (see 2008 MRI report) is aggravated (permanently worsened) by the service-connected left shoulder impingement; and c. If left shoulder arthritis is not caused or aggravated by the service-connected left shoulder impingement, identify the symptoms associated with the service-connected left shoulder impingement and those associated with left shoulder arthritis. If a distinction is not possible, please state why; and d. Indicate whether the service-connected left shoulder disability is manifested by any neurological impairment of the left arm, and/or ankylosis or impairment of the humerus, clavicle, or scapula. A full rationale (i.e. explanation) must be provided for all proffered medical opinions. 4. Thereafter, readjudicate the claims on appeal. If the complete benefits sought on appeal are not granted, issue a supplemental statement of the case to the Veteran and his representative before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).