Citation Nr: 18160500
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 12-29 439
DATE:	December 27, 2018
ORDER
The appeal as to the issue of entitlement to an initial compensable evaluation for a residual scar of the right forearm under Diagnostic Code 7805 is dismissed.
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 is remanded.
Entitlement to an initial compensable evaluation for migraine headaches is remanded.
FINDINGS OF FACT
1.  In a July 2011 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left shoulder surgical scars and a residual scar of the right forearm, separately rated with noncompensable evaluations under Diagnostic Code 7805, effective from February 28, 2011 (the day after discharge from service).  In a June 2013 rating decision, the AOJ granted a separate 20 percent evaluation under Diagnostic Code 7804 (three or four painful scars) effective from that same date, based on a combination of the right forearm scar and left shoulder scars.
2.  In February 2016, prior to the promulgation of a decision in the appeal, the Veteran testified on the record that she did not need an increased evaluation for the scar on her right forearm.  There is no longer a case or controversy with respect to this issue on appeal.
CONCLUSION OF LAW
The appeal as to the issue of entitlement to an initial compensable evaluation for a residual scar of the right forearm under Diagnostic Code 7805 is dismissed.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
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 of the Department of Veterans Affairs (VA).
The 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 all 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.  Because those evaluations do not represent the highest possible benefit, the issues are 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 veteran a hearing before the AOJ in error, but veteran 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.

Law and Analysis
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.
During the Board hearing, the undersigned Veterans Law Judge confirmed with the Veteran that the issues on appeal included increased evaluation claims for scars of the left shoulder and right forearm.  When the Veteran was asked by the Veterans Law Judge about the symptoms associated with her scars, she indicated that VA “[didn’t] have to increase that one.”  When asked if she was referring to the scar on her arm, she replied, “Yeah, on the arm, we don’t need the increase,” and she continued to provide testimony about the left shoulder scars.  Given that there remain no allegations of errors of fact or law for appellate consideration as to this portion of the appeal, the Board does not have jurisdiction to review this issue, and it is dismissed.
REASONS FOR REMAND
On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s remaining claims.  It appears that there may be outstanding VA and private treatment records, as detailed in the directives below.
Regarding the left shoulder claim, the Veteran was most recently provided a VA examination in September 2015; however, a remand is required to obtain a VA examination that satisfies the requirements under Correia v. McDonald, 28 Vet. App. 158 (2016) (concluding that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing).  The examiner will also be able to address any recent findings referable to the left shoulder surgical scars.
Regarding the restless leg syndrome claim, the Veteran was most recently provided VA examinations in 2013.  The record suggests that this disability has increased in severity since that time.  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 request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her claimed disorders, including Kaiser Permanente (see October 2016 written submission).  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.
The AOJ must make at least two (2) attempts to obtain any private medical records, unless the first attempt demonstrates that further attempts would be futile.
If the records are not obtained, the AOJ must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated.
2.  The AOJ should also secure any outstanding VA treatment records, including from the San Diego VA Medical Center prior to December 2011 and any December 2014 MRI report for the left shoulder.  See VA treatment records from December 2011 (noted Veteran was a transfer from that facility) and December 2014 (noted MRI of left shoulder pending that day).
3.  After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected status post left shoulder dislocations with arthroscopic repair labrum tear with shoulder impingement syndrome.  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, the examiner should provide the range of motion of the left and right shoulders in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for this determination in the report.
The examiner should state whether there is any form of ankylosis; malunion, recurrent dislocation, fibrous union, nonunion (false flail joint), or loss of head (flail shoulder) of the humerus; or, any impairment of the clavicle or scapula.
The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion).
The examiner should also identify and describe any surgical scars related to the Veteran’s left shoulder disability and provide the findings necessary under the rating criteria.
A complete rationale must be provided for any opinion offered.
4.  After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected restless leg syndrome.  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, the examiner should state whether the Veteran has restless leg syndrome that is mild, moderate, or severe when considering the frequency, severity, and muscle groups involved.
(Continued on the next page)
 
A complete rationale must be provided for any opinion offered.
 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Postek, Counsel 

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