Citation Nr: 0810352 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-31 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for jaw and dental disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from May 1963 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (MROC) in Wichita, Kansas 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 veteran contends that he was injured during service in the 1965-1966 timeframe when he was in an automobile accident involving a truck and a bicycle. He asserts that he suffered a concussion as well as trauma to his jaw/dental area. VA has attempted to obtain inservice documentary evidence of this injury; however, the records do not confirm that it occurred. In the informal hearing presentation, the representative alleged that the field hospital records had not been obtained, however, as noted, all service medical records have been requested in this case. In addition, it was alleged that no attempts to verify if a Line of Duty investigation was conducted had been undertaken. However, the veteran's service personnel records have in fact been obtained. In support of his claim, the veteran submitted a statement by A.L.R. who served with the veteran. He stated that he was aware of the accident, it delayed the veteran's return to his unit, and the veteran received medical treatment. The veteran also submitted private medical records showing current jaw disability. In those records, it was noted that the veteran's disability had been "in a slow progression since a truck accident in Vietnam in the 1960s." However, there is no indication that the veteran's medical records to include the service medical records were reviewed by this physician. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2007). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id. The record before VA need only (1) contain competent evidence that the veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the veteran's active military service. Duenas v. Principi, 18 Vet. App. 512 (2004). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410, at 418 (2006). The Board finds that the low threshold has been met in this case. Accordingly, the veteran should be afforded a VA examination to determine if any current disability is attributable to service. Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, VCAA notice was not issued with regard to Dingess/Hartman. As this case is being remanded, the veteran should be notified of such. Accordingly, this matter is REMANDED for the following actions: 1. The AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority to include Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the veteran for a VA examination to determine the nature and etiology of any current jaw/dental disability. The examiner should review the claims folder prior to examination. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current jaw/dental disability is related to service. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2006), 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) (2007).