Citation Nr: 0813394 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 97-26 624A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for dental disability claimed to be the result of hospitalization or medical or surgical treatment provided by VA between August and December 1984, and in December 1985 and December 1986. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from December 1968 to February 1970. This appeal to the Board of Veterans' Appeals (Board) is from a December 1995 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in January 2001, initially denied the claim in March 2003 and, following a July 2003 Order of the U. S. Court of Appeals for Veterans Claims (Court) granting a Joint Motion to vacate that decision, again remanded this case in August 2004. Upon receiving the case back, the Board then issued another decision in July 2006 again denying the claim, and the veteran again appealed to the Court. The Court issued another Order in December 2007 again granting a Joint Motion to vacate the Board's decision and remand the case for still further development and readjudication. So to comply with the Court's Order, the Board in turn is again remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The joint motion indicates there was not compliance with the directives of the Board's prior, January 2001 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the claim in January 2001 so the RO could obtain the records of any dental treatment the veteran had received at the Biloxi, Mississippi, VA Medical Center during the relevant times at issue - from August to December 1984 and in December 1985 and December 1986. The RO was instructed to notify him if these records were unavailable and further attempts to obtain them would be futile. However, he was not provided an explanation regarding the availability of these records. The Joint Motion therefore concluded this case must again be remanded so the RO can again attempt to obtain these treatment records, and if they are unobtainable, the RO must provide an explanation of how records are maintained, why the RO's search was reasonably exhaustive, and why future search efforts are unjustified. See Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991). See also 38 C.F.R. § 3.159(c)(2) and (3). The Joint Motion further indicates that the March (actually April) 2002 VA dental examination also did not comply with the Board's January 2001 remand directives because the examiner did not indicate whether the claims file was reviewed and did not address a September 1985 opinion from S. S., a private dentist. In that statement, Dr. S. S. had indicated the veteran reported "scrap metal" in his left cheek and that he tried to remove it with a pin, which resulted in "crusts" on his left cheek. So this inadequate VA dental examination has to be corrected, as well, before readjudicating the claim. Although not mentioned in the Joint Motion, the Board also sees that another private opinion has been added to the record since the Board's January 2001 remand. In May 2005, N. S., another private dentist, indicated the veteran had "dental procedures done on the mandibular area on both sides with some gum eryhmea and some swelling; this is probably causing the jaw discomfort in the mandibular area." So as the January 2001 remand instructed the VA compensation examiner to consider the September 1985 opinion, so, too, is it necessary to consider this more recent May 2005 opinion. Accordingly, this case is again REMANDED for the following development and consideration: 1. Follow-up on the prior attempt to obtain the veteran's VA dental treatment records that reportedly were transferred from the Biloxi facility to the Pensacola facility. These records concern his VA dental treatment during the relevant times at issue, from August to December 1984 and in December 1985 and December 1986. Also search for these or any other relevant VA dental treatment records at the facility in Bay Pines. If these records are unavailable, and it is determined that further attempts to obtain them would be futile, then provide the veteran an explanation of (a) how VA medical records are maintained, (b) why the search conducted for these records was reasonably exhaustive, and (c) why further efforts to obtain these records are unjustified. See 38 C.F.R. § 3.159(c)(2) and (3) and the Board's prior, January 2001, remand directives concerning the search for these additional records. 2. Schedule the veteran for another VA dental examination to (a) assess the current state of his recurrent infection, carbuncles, and cysts of the mouth, (b) provide an opinion as to the etiology of these conditions, and (c) determine whether he has additional dental disability due to VA treatment he received from August to December 1984 and in December 1985 and December 1986. According to the applicable statute and regulation, 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358, this VA dental treatment at issue must have resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing this treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. To assists in making these important determinations, it is imperative that the dentist designated to conduct this evaluation review the veteran's claims file for his pertinent dental and other history, including addressing the September 1985 opinion from Dr. S. S. and the more recent May 2005 opinion from Dr. N. S. The VA examiner must expressly state that he reviewed the claims file, including these opinions. The examiner must discuss the rationale of the opinions, whether favorable or unfavorable. If the examiner cannot provide the requested opinions without resorting to speculation, he should expressly indicate this. Advise the veteran that failure to report for his scheduled VA dental examination, without good cause, may have adverse consequences on his claim. 3. Then readjudicate the claim in light of any additional evidence obtained. If the disposition remains unfavorable, send the veteran and his attorney a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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).