Citation Nr: 21064637
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 19-25 027
DATE: October 21, 2021

REMANDED

Entitlement to an evaluation in excess of 20 percent for left shoulder rotator cuff tendonitis is remanded.

Entitlement to an evaluation in excess of 20 percent for post-operative chronic right shoulder rotator cuff tendinitis is remanded.

Entitlement to service connection for migraine headaches, to include as secondary to service-connected bilateral shoulder disabilities, is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty in the United States Marine Corps from July 1981 to May 1989.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 decision of a Department of Veterans Affairs (VA) Regional Office.

Entitlement to increased evaluations for the Veteran's left and right shoulder disabilities and to service connection for migraine headaches is remanded.

For appeals such as the Veteran's under the legacy appeal system, the Board may generally not consider evidence not previously reviewed by the Agency of Original Jurisdiction unless a waiver of initial Agency of Original Jurisdiction review is obtained from the veteran.  Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003).  However, if a veteran filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial Agency of Original Jurisdiction review is implied for new evidence submitted by the appellant or representative to the Agency of Original Jurisdiction or the Board.  38 U.S.C. § 7105(e).  This automatic waiver does not extend to evidence that was not submitted by the claimant but was instead developed or procured by VA.

Here, the claims file includes additional VA treatment records pertinent to the Veteran's claim that were added to the claims file after the Statement of the Case.  They were not submitted by the Veteran and are not subject to the presumed automatic waiver of initial review.  As the Agency of Original Jurisdiction had not considered this evidence, the Board sent the Veteran correspondence in August 2021 asking whether he would like to waive Agency of Original Jurisdiction consideration of this evidence or if he would like the Board to remand the appeal for initial Agency of Original Jurisdiction consideration.  The Veteran replied in September 2021 that he wished for the Agency of Original Jurisdiction to consider this evidence in the first instance.  The appeal is therefore remanded to the Agency of Original Jurisdiction for readjudication and the issuance of a supplemental statement of the case.  38 C.F.R. § 19.31.

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The matters are REMANDED for the following action:

1. After consideration of the evidence received since the statement of the case, readjudicate the claim on appeal.  If the benefits sought are not granted, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Whitelaw, 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.