Citation Nr: 21067629
Decision Date: 11/04/21	Archive Date: 11/04/21

DOCKET NO. 15-35 175A
DATE: November 4, 2021

REMANDED

Entitlement to service connection for migraine headaches is remanded.

Entitlement to a rating in excess of 20 percent for left shoulder supraspinatus tendinopathy, biceps tendonitis, and paralabral cyst/labral tear is remanded.

Entitlement to an extension beyond August 31, 2014 for special monthly compensation based on housebound status is remanded.

Entitlement to an extension beyond August 31, 2014 for a temporary total evaluation for convalescence under 38 C.F.R .§ 4.30 for surgery related to left shoulder supraspinatus tendinopathy, biceps tendonitis, and paralabral cyst/labral tear is remanded.

Entitlement to restoration of a 70 percent rating for posttraumatic stress disorder (PTSD) effective November 1, 2016 is remanded. 

Entitlement to a rating in excess of 70 percent prior to November 1, 2016, in excess of 30 percent from November 1, 2016 and February 2, 2021, and in excess of 50 percent thereafter, for PTSD is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1985 to December 1985 and from  February 2003 to April 2004.  The Board previously remanded these issues in October 2018 for further development.  

1. Entitlement to service connection for migraine headaches is remanded.

2. Entitlement to a rating in excess of 20 percent for left shoulder supraspinatus tendinopathy, biceps tendonitis, and paralabral cyst/labral tear is remanded.

3. Entitlement to an extension beyond August 31, 2014 for special monthly compensation based on housebound status is remanded.

4. Entitlement to an extension beyond August 31, 2014 for a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 for surgery related to left shoulder supraspinatus tendinopathy, biceps tendonitis, and paralabral cyst/labral tear is remanded.

5. Entitlement to restoration of a 70 percent rating for PTSD effective November 1, 2016 is remanded. 

6. Entitlement to a rating in excess of 70 percent prior to November 1, 2016, in excess of 30 percent from November 1, 2016 and February 2, 2021, and in excess of 50 percent thereafter, for PTSD is remanded.

7. Entitlement to a TDIU is remanded.

Additional evidence, including VA clinical records and VA examination reports, have been associated with the record since the April 2020 statement of the case (SOC) and April 2020 supplemental statement of the case (SSOC), but have not been considered by the Agency of Original Jurisdiction (AOJ).  The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level.  See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  Importantly, the Board also notes that most recent SSOC failed to address the issues of entitlement to an extension beyond August 31, 2014 for SMC and for a temporary total evaluation for convalescence under 38 C.F.R.§ 4.30.  In September 2021, the Veteran and his representative were afforded the opportunity to waive preliminary AOJ review of the new evidence.  The letter informed the Veteran and his representative that if they did not respond within 45 days, the Board would assume that they did not wish to have the Board decide the appeal at this time and remand it for AOJ review.  Neither the Veteran nor his representative responded to this letter.  Accordingly, the appeal must be returned to the AOJ. 

The matters are REMANDED for the following action:

The AOJ should review the record, to specifically include all evidence received since the April 2020 SOC and SSOC and determine whether the benefits sought on appeal can be granted.  Unless the benefits sought are granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement addressing all of the issues remaining on appeal and be afforded an opportunity to respond.    

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.N. Moats

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.