Citation Nr: 0812731	
Decision Date: 04/17/08    Archive Date: 05/01/08

DOCKET NO.  05-34 154	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.  

2.  Entitlement to an increased disability evaluation for 
service-connected edentulous mandible with rampant caries and 
periodontal disease, currently rated as 10 percent disabling.  

3.  Entitlement to an increased disability evaluation for 
service-connected recurrent plasmacytoma, status post removal 
left sixth rib, status post-operative left mandibular lesion 
with recurrent left thoracic paraspinal region, currently 
rated as 10 percent disabling.  

4.  Entitlement to an effective date earlier than April 23, 
1991 for the grant of service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

Michael A. Pappas, Counsel


INTRODUCTION

The veteran served on active duty from February 1976 to April 
1991.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a February 2005 rating decision of the 
Department of Veterans Affairs (VA), Phoenix, Arizona, 
Regional Office (RO) that denied the claim of entitlement to 
service connection for bilateral hearing loss, granted the 
claim of entitlement to service connection for tinnitus and 
assigned a 10 percent disability evaluation, effective from 
April 23, 1991, and denied the claims for an increased rating 
for service-connected edentulous mandible with rampant caries 
and periodontal disease, and entitlement to an increased 
rating for service-connected recurrent plasmacytoma, status 
post removal left sixth rib, status post-operative left 
mandibular lesion with recurrent left thoracic paraspinal 
region.  The veteran perfected an appeal as to the foregoing 
denials and as to effective date for the grant of service 
connection for tinnitus.  

In January 2008, the veteran appeared at a hearing conducted 
at the RO by the undersigned Veteran's Law Judge.  The 
transcript of that hearing has been associated with the 
claims file, and the case is now ready for appellate review.

The issues of entitlement to an increased disability 
evaluation for service-connected edentulous mandible with 
rampant caries and periodontal disease, and entitlement to an 
increased disability evaluation for service-connected 
recurrent plasmacytoma, status post removal left sixth rib, 
status post-operative left mandibular lesion with recurrent 
left thoracic paraspinal region are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, D.C.


FINDING OF FACT

On January 8, 2008, prior to the promulgation of a decision 
in the appeal of the denial of entitlement to service 
connection for bilateral hearing loss, and the denial of 
entitlement to an effective date earlier than April 23, 1991 
for the grant of service connection for tinnitus, the Board 
received notification from the appellant that a withdrawal of 
this appeal is requested as to those issues.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal by 
the appellant have been met as to the issue of entitlement to 
service connection for bilateral hearing loss.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 
(2007).

2.  The criteria for withdrawal of a Substantive Appeal by 
the appellant have been met as to the issue of entitlement to 
an effective date earlier than April 23, 1991 for the grant 
of service connection for tinnitus.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A Substantive Appeal may be withdrawn in writing at any time 
before the Board promulgates a decision.  38 C.F.R. § 20.202.  
Withdrawal may be made by the appellant or by his or her 
authorized representative.  38 C.F.R. § 20.204.  

The veteran has withdrawn his appeal as to the issues of 
entitlement to service connection for bilateral hearing loss, 
and entitlement to an effective date earlier than April 23, 
1991 for the grant of service connection for tinnitus; hence, 
there remain no allegations of errors of fact or law for 
appellate consideration with regard to those two issues.  
Accordingly, the Board does not have jurisdiction and the 
issues of entitlement to service connection for bilateral 
hearing loss, and entitlement to an effective date earlier 
than April 23, 1991 for the grant of service connection for 
tinnitus are dismissed.


ORDER

The appeal of the denial of entitlement to service connection 
for bilateral hearing loss is dismissed.  

The appeal of the denial of entitlement to an effective date 
earlier than April 23, 1991 for the grant of service 
connection for tinnitus is dismissed.  


REMAND

The veteran's service-connected recurrent plasmacytoma, 
status post removal left sixth rib, status post-operative 
left mandibular lesion with recurrent left thoracic 
paraspinal region, is currently rated as 10 percent disabling 
under 38 C.F.R. § 4.71a, Diagnostic Code 5012.  Under that 
Diagnostic Code, malignant new growths of bones will be 
assigned a 100 percent rating continued for one year 
following the cessation of surgical, X-ray, antineoplastic 
chemotherapy or other therapeutic procedure.  After the one 
year, if there has been no local recurrence or metastases, 
the rating will be made on residuals.  38 C.F.R. § 4.71a, DC 
5012, and note.  

Under the principles of that diagnostic code, service 
connection has been granted and disability ratings have been 
awarded for tinnitus (10 percent disabling), chemosis and 
posterior subcapsular cataracts of the left eye (10 percent 
disabling), and an edentulous mandible with rampant caries 
and periodontal disease, as residuals of the veteran's 
service-connected plasmacytoma (10 percent disabling).  
Service connection is also in effect for several other 
disabilities that were granted based upon x-ray evidence of 
degenerative arthritis at the time of the veteran's 
separation from service.  

At his January 2008 Board hearing, the veteran identified 
several other physical complaints that he believes are 
associated with his service-connected plasmacytoma.  These 
include tenderness in his rib area, diminishing lung 
function, loss of motion in his right arm, a loss of jaw 
function, and an irritation and swelling of the eye.  

Although the veteran was provided with a series of 
examinations in January 2005, including dental, eye, and 
joints examinations, the Board finds that all of the 
complaints that the veteran has expressed have not been 
specifically addressed or ruled-out as residuals of his 
service-connected plasmacytoma, and those that have been 
identified have not been fully described for rating purposes.  
Significantly, the veteran has not been provided with an 
examination for the specific purpose of identifying all of 
the residuals of his service-connected plasmacytoma.  

Secondly, the veteran's service-connected edentulous mandible 
with rampant caries and periodontal disease is evaluated 
under 38 C.F.R. § 4.150, Diagnostic Code 9913, which provides 
disability ratings based essentially upon whether the lost 
masticatory surface can or cannot be restored by a suitable 
prosthesis.  If the lost masticatory surface cannot be 
restored, the diagnostic code provides a maximum 40 percent 
disability rating for the loss of all teeth, a 30 percent 
rating for the loss of all upper teeth or all lower teeth, a 
20 percent rating for the loss of all upper and lower 
posterior or upper and lower anterior teeth, a 10 percent 
rating for the loss of all upper anterior or lower anterior 
teeth, and a 10 percent rating for all upper and lower teeth 
on one side missing.  These ratings apply only to bone loss 
through trauma or disease, such as osteomyelitis, and not to 
the loss of the alveolar process as a result of periodontal 
disease, since such loss is not considered disabling.  
38 C.F.R. § 4.150.  

The veteran has argued that although he has been fitted with 
a prosthesis (dentures), the deterioration of his jaw is such 
that it does not fit properly, requiring that he remove it 
frequently.  He has testified that when he does so, he is 
unable to replace it for several hours.  In light of this 
testimony, the question arises as to whether the veteran's 
prosthesis is such that he would be as well served without 
one, which by analogy to the amputation rule for orthopedic 
disabilities could provide a higher disability rating under 
Diagnostic Code 9913.  It is also noted that his jaw 
disability could potentially be rated under other analogous 
dental codes, such Diagnostic Code 9914 or Diagnostic Code 
9915, which provide disability ratings from 0 percent to 100 
percent based upon loss of the maxilla, and whether it is 
replaceable by prosthesis.  38 C.F.R. § 4.150, Diagnostic 
Codes 9914 and 9915.  The Board notes further that the 
existing evidence and the veteran's complaints reflect the 
type of situation that could potentially warrant 
consideration of an extra-schedular evaluation under 38 
C.F.R. §§ 3.321(b)(1).

The state of the evidence at this time does not allow the 
evaluation of the veteran's disabilities at issue.  
Consequently, the necessity for appropriate further 
examinations is shown for the proper assessment of the 
veteran's claims.  38 U.S.C.A. § 5103A.

Thirdly, at his January 2008 hearing before the Board, the 
veteran indicated that he was scheduled to see a physician 
the following week for the purpose of refitting his dental 
prosthesis so that it would be more functional.  The veteran 
also indicated at the hearing that he had been seen by a 
private medical specialist in Tucson following VA referral 
who indicated that there may be a surgery that could 
alleviate some of the residuals of the veteran's 
plasmacytoma.  The foregoing VA and private treatment records 
identified by the veteran must be obtained and associated 
with the claims file.  38 U.S.C.A. § 5103A(b).

Finally, it is noted that upon receipt of a complete or 
substantially complete application, VA must notify the 
claimant of the information and evidence not of record that 
is necessary to substantiate a claim, which information and 
evidence VA will obtain, and which information and evidence 
the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  
The RO provided the veteran pre-initial adjudication of the 
increased rating issues on appeal by letter dated in December 
2004.  This notice letter, however, did not discuss the 
specific criteria for the increased ratings, thus, the duty 
to notify has not been satisfied with respect to VA's duty to 
notify him of the information and evidence necessary to 
substantiate the claim.  See Quartuccio v. Principi, 16 Vet. 
App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008). 

Based upon a careful reading the statements submitted by the 
veteran in support of his claims to date, including the 
January 2008 hearing transcript, it is unclear as to whether 
he is aware of the specific criteria that is needed for 
successful claims for the increased ratings at issue.  Thus, 
it would be prudent to provide an additional notice letter 
discussing the criteria for the increased ratings in 
accordance with the holding in Vazquez-Flores, supra. 

Accordingly, the case is REMANDED for the following action:

1.  Provide the veteran with additional 
notice on his increased rating claims.  
This includes notification (1) that to 
substantiate his claims he must provide, 
or ask VA to obtain, medical or lay 
evidence demonstrating a worsening or 
increase in severity of his service-
connected edentulous mandible with 
rampant caries and periodontal disease, 
and service-connected recurrent 
plasmacytoma, status post removal left 
sixth rib, status post-operative left 
mandibular lesion with recurrent left 
thoracic paraspinal region and the effect 
that worsening has on his employment and 
daily life; (2) generally, of the 
diagnostic code criteria necessary for 
entitlement to higher disability ratings 
that would not be satisfied by 
demonstrating a noticeable worsening or 
increase in severity of the disabilities 
and the effect of that worsening has on 
his employment and daily life; (3) that 
if an increase in disability is found, a 
disability rating will be determined by 
applying relevant diagnostic codes, which 
typically provide for a range in severity 
of a particular disability from 0% to as 
much as 100% (depending on the disability 
involved), based on the nature of the 
symptoms of the condition for which 
disability compensation is being sought, 
their severity and duration, and their 
impact upon employment and daily life; 
and (4) of examples of the types of 
medical and lay evidence that he may 
submit (or ask VA to obtain) that are 
relevant to establishing entitlement to 
increased compensation (such as competent 
lay statements describing symptoms, 
medical and hospitalization records, 
medical statements, employer statements, 
job application rejections, and any other 
evidence showing an increase in the 
disabilities on appeal or exceptional 
circumstances relating to the 
disability).   

2.  Ask the veteran to provide the name 
of the VA-referred private medical 
specialist in Tucson whom he had 
identified at the Board hearing as having 
treated him for residuals of 
plasmacytoma, and the names of any 
physicians who had treated him since the 
January 2008 Board hearing.  

3.  After obtaining all necessary 
information, authorizations, and 
releases, attempt to obtain copies of any 
treatment records from any other health 
care providers identified by the veteran 
who have treated him for the disorders at 
issue.  All records obtained should be 
associated with the claims file.

4.  Schedule the veteran for VA 
examinations by an appropriate physician 
or physicians for the specific purpose of 
identifying all of the residuals of his 
service-connected plasmacytoma to 
determine the nature, extent and severity 
of each such disability identified as a 
residual.  It is suggested, but not 
mandatory, that an initial examination 
could be conducted by an internist who 
would identify the potential residuals 
with a referral to specialists for the 
evaluation of each of the potential 
residuals identified by the internist.  
The claims file and a separate copy of 
this remand must be made available to the 
examiners in conjunction with the 
examinations.  Any further indicated 
special tests and studies should be 
conducted.

The examiners must provide a detailed 
description of the pathology 
associated with each of the residuals 
disabilities associated with the 
veteran's service-connected 
plasmacytoma.  

5.  Schedule the veteran for appropriate 
VA examinations by a physician or 
physicians skilled in the diagnosis and 
treatment of the veteran's service-
connected edentulous mandible with 
rampant caries and periodontal disease, 
to determine the nature, extent and 
severity of this disability.  The claims 
file and a separate copy of this remand 
must be made available to the examiner(s) 
in conjunction with the examination.  Any 
further indicated special tests and 
studies should be conducted.

The examiner must provide a detailed 
description of the pathology 
associated with the veteran's service-
connected edentulous mandible with 
rampant caries and periodontal 
disease.  

The examiner should also provide an 
opinion as to whether the veteran's 
prosthesis is such that he would be 
just as well served without one.  

The examiner should also provide an 
opinion as to whether the veteran's 
dental disability represents or 
approximates a loss of the maxilla, 
and if so, what percentage of the 
maxilla is lost.  

6.  Thereafter, review the claims file to 
ensure that all of the foregoing 
requested development has been completed.  
In particular, review the requested 
examination reports and required medical 
opinions to ensure that they are 
responsive to and in complete compliance 
with the directives of this remand and if 
they are not, implement corrective 
procedures.  

7.  After undertaking any development 
deemed essential in addition to that 
specified above to include further VA 
examinations, readjudicate the veteran's 
claims.  In the adjudication, each of the 
specific residual disabilities of the 
veteran's service-connected plasmacytoma 
should be set out and separately rated.  
Consideration must also be given as to 
whether the veteran's claims should be 
referred for extra-schedular evaluation 
under 38 C.F.R. §§ 3.321(b)(1).  If any 
benefit requested on appeal is not 
granted to the veteran's satisfaction, 
issue a supplemental statement of the 
case (SSOC).  The SSOC must contain 
notice of all relevant actions taken on 
the claims for benefits, to include a 
summary of the evidence and applicable 
law and regulations pertinent to the 
claim currently on appeal.  A reasonable 
period of time for a response should be 
afforded.  Thereafter, the case should be 
returned to the Board for final appellate 
review, if in order.  

By this remand, the Board intimates no opinion as to any 
final outcome warranted.  No action is required of the 
veteran until he is notified; however, the veteran is hereby 
notified that failure to report for any scheduled VA 
examination(s) without good cause shown may adversely affect 
the outcome of his claims and result in a denial.  38 C.F.R. 
§ 3.655 (2007).

The appellant has the right to submit additional evidence and 
argument on the 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 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2007).



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs