Citation Nr: 21001590 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-29 439 DATE: January 11, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for status post left shoulder dislocations with arthroscopic repair labrum tear under Diagnostic Codes 5201-5024 prior to July 30, 2015, is remanded. Entitlement to an initial evaluation in excess of 20 percent for status post left shoulder dislocations with arthroscopic repair labrum tear with shoulder impingement syndrome under Diagnostic Code 5201 (previously evaluated as status post left shoulder dislocations with arthroscopic repair labrum tear under Diagnostic Codes 5201-5024) on or after July 30, 2015, is remanded. Entitlement to an initial compensable evaluation for residual scars of the left shoulder status post arthroscopic repair under Diagnostic Code 7802 (previously evaluated under Diagnostic Code 7805) is remanded. Entitlement to an initial evaluation in excess of 20 percent for painful scars of the left shoulder and right forearm under Diagnostic Code 7804 is remanded. Entitlement to an initial compensable evaluation for restless leg syndrome prior to May 2, 2019, is remanded. Entitlement to an initial evaluation in excess of 10 percent for restless leg syndrome on or after May 2, 2019, is remanded. Entitlement to an initial compensable evaluation for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2006 to February 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from July 2011 and August 2012 rating decisions by the Department of Veterans Affairs (VA). The agency of original jurisdiction (AOJ) considered the grant of the separate 20 percent evaluation noted above to be a partial grant of the benefit sought on appeal and certified three scar issues to the Board. In an October 2015 rating decision, the AOJ recharacterized the left shoulder disability originally evaluated under Diagnostic Codes 5201-5024 and granted a 20 percent evaluation under Diagnostic Code 5201 effective from July 30, 2015. In an August 2019 rating decision, the AOJ granted a 10 percent evaluation for restless leg syndrome effective from May 2, 2019. Because those evaluations do not represent the highest possible benefit, the issues remain in appellate status as stated above. AB v. Brown, 6 Vet. App. 35 (1993). The AOJ also separately granted service connection for left ulnar neuropathy (shown in the medical evidence to be a residual of the left shoulder surgery) in an unappealed October 2013 rating decision. The Veteran requested a Decision Review Officer (DRO) hearing in her January 2012 notice of disagreement. It does not appear that she was provided a DRO hearing (or informal conference in lieu of a hearing). Nevertheless, the Board finds that any question as to whether the Veteran was afforded due process regarding a DRO hearing was addressed when she was provided the opportunity to testify at a Board hearing. See Bowen v. Shinseki, 25 Vet. App. 250, 253-54 (2012) (holding that there is no due process violation when VA denies a hearing before the AOJ in error, but claimant maintains ability to appeal and testify at a Board hearing). A hearing was held before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. In a December 2018 decision, the Board dismissed one scar issue and remanded the remainder of the case for further development. The case has since been returned to the Board for appellate review. In an August 2020 letter, the Board notified the Veteran that her election to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP) had not been processed and that the case was currently pending in the Legacy (pre-Veterans Appeals Improvement and Modernization Act) framework. The Board also notified the Veteran that it would assume that she would like her appeal to remain on its docket in the Legacy framework if she did not respond with a completed RAMP participation option form within 60 days. The Veteran did not respond to that letter. Because the case remains in the Legacy framework, it must be remanded to the AOJ for review and issuance of a supplemental statement of the case (SSOC). Relevant VA treatment records were added to the claims file prior to the case being transferred to the Board. The automatic waiver provisions do not apply for the substantive appeal to the 2011 rating decision, and the Veteran requested that the AOJ consider the evidence she submitted with her August 2019 SSOC response. See 38 C.F.R. §§ 19.31, 19.37. It also appears that there may be outstanding treatment records, as detailed in the directives below. Regarding the migraine headaches claim, the Veteran was most recently provided a VA examination in 2013. The record suggests that the disability has increased in severity since that time. See, e.g., March 2019 written statement. As such, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The case is REMANDED for the following actions: 1. The AOJ should obtain all VA treatment records for the Veteran dated from August 2019 to the present. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to address the current severity and manifestations of her service-connected migraine headaches. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, he or she should discuss the frequency and duration of the migraine headaches, including the frequency of prostrating attacks and whether those attacks are productive of severe economic inadaptability. If the examiner is unable to distinguish between the symptoms associated with the service-connected migraine headaches and any symptoms associated with a nonservice-connected disorder (including any other headache disorder), he or she should state so in the report and provide an explanation. For example, the Veteran submitted a copy of a January 2017 private treatment record in March 2019 that she indicated reflected a type of headache that was not consistent with her regular daily migraines. VA treatment records from September 2018 suggest that she may experience more than one type of headache. A complete rationale must be provided for any opinion offered. 3. After completing the above actions and any indicated development, the case should be reviewed by the AOJ on the basis of additional evidence since the August 2019 SSOC. If the benefits sought are not granted, the Veteran should be furnished an SSOC and be afforded an opportunity to respond before the record is returned to the Board for further review. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.