Citation Nr: 1121845 Decision Date: 06/06/11 Archive Date: 06/20/11 DOCKET NO. 06-29 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for malaria. 2. Entitlement to service connection for a dental condition due to dental trauma (claimed as two front teeth knocked out) for treatment purposes. 3. Entitlement to a compensable disability rating for the residuals of an injury to the right great toe. 4. Entitlement to a compensable disability rating for a scar of the forehead as a residual of a shell fragment wound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that denied all the Veteran's claims. The above mentioned claims were previously before the Board in October 2009, at which time the claims were remanded for further evidentiary development. As will be further explained below, this development having been achieved, the issues of whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for malaria and entitlement to service connection for a dental condition due to dental trauma (claimed as two teeth knocked out) for treatment purposes are now ready for appellate review. The issues of entitlement to a compensable disability rating for the residuals of an injury to the right great toe and entitlement to a compensable disability rating for a scar of the forehead as a residual of a shell fragment wound are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A January 1973 RO decision denied the Veteran's claim for entitlement to service connection for malaria; by letter dated in July 1974, the RO found that no new and material evidence had been received to reopen that prior final decision. 2. Evidence associated with the claims file after the last final denial in July 1974 is neither new nor material evidence in that it does not raise a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for malaria. 3. A dental disorder due to trauma for VA treatment purposes is not shown by the evidence of record; the Veteran was not a prisoner of war during service, he has no service-connected disabilities rated totally disabling, he has no adjudicated service-connected compensable dental disability or dental disorder clinically determined to be complicating a medical disorder currently being treated by VA, and he is not a VA vocational rehabilitation trainee. CONCLUSIONS OF LAW 1. The January 1973 RO rating decision and July 1974 denial letter are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Evidence received since the July 1974 RO decision in connection with Veteran's request to reopen a claim of service connection for malaria is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. The criteria for service connection for treatment purposes for a dental disorder due to trauma have not been met. 38 U.S.C.A. §§ 1712, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in November 2005, December 2009, and May 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The December 2009 letter provided this notice to the Veteran. With respect to the Veteran's request to reopen previously disallowed claim of entitlement to service connection for malaria, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence - evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation, however, does not modify the requirements discussed above. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. The Board notes that the December 2009 letter provided this notice to the Veteran. The Board observes that the November 2005 letter was sent to the Veteran prior to the February 2006 rating decision. The VCAA notice with respect to the elements addressed in these letters was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess however, was sent after the initial adjudication of the Veteran's claims. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the December 2009 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2007), 38 C.F.R. § 3.159(b) (2010), and Dingess, supra, and after the notice was provided the case was readjudicated and an October 2010 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2010). In this regard, the Veteran's service treatment records, VA treatment records and private treatment records are associated with the claims folder. In October 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that a remand was issued in October 2009 with instructions to the AOJ to 1) in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), send the Veteran notice of the reasons why his service connection claim for malaria was previously denied, of the meaning of new and material evidence, and of the kind of evidence that would be helpful in substantiating his claim to reopen his previously-denied claim for service connection for malaria, 2) request that the Veteran provide information regarding any dental treatment and submit authorization forms so that the AOJ could obtain all available dental records, 3) obtain all medical (including dental) treatment records from Arkansas Department of Corrections (including those from Pulaski County Regional Detention Center, in Little Rock Arkansas; Cummins Prison in Grady, Arkansas, and Tucker unit in Tucker, Arkansas) and associate those records with the Veteran's claims folder, 4) obtain a medical opinion from a dentist with respect to whether any injury caused to the Veteran's teeth by the April 1971 shrapnel wound is related to any current problem with the Veteran's teeth. The Board notes that Kent notice was provided, and the RO requested that the Veteran provide authorization forms to obtain treatment records (including dental) and a VA opinion was requested with regard to the Veteran's dental trauma claim. The requested records having been obtained to the extent possible, and requested opinions having been afforded, the issue now returns to the Board for appellate review. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a review of the record, the Board finds that with regard to the issue of entitlement to service connection for malaria, an examination is not necessary. There is no duty to provide an examination until after a claim has been reopened. With respect to the issue of service connection for a dental condition due to dental trauma (claimed as two teeth knocked out) for treatment purposes, the Board notes that there is no evidence that the Veteran currently has any currently diagnosed dental issues. As such, no examination is necessary as the Veteran fails to meet the requirements of McLendon. Nevertheless, a VA opinion was requested in conjunction with the Veteran's claim for dental trauma. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unfortunately, because the Veteran failed to provide treatment records regarding any current dental problems, the dental examiner was unable to determine if the Veteran's in-service dental trauma was related to any current dental issue. The Board notes that the examiner did review all available records and explained why no opinion could be provided. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to these issues has been met. 38 C.F.R. § 3.159(c) (4) (2010). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its October 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis I. New and Material Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). The Board notes that the Veteran's current claim is one of entitlement to service connection for malaria. This claim is based upon the same factual basis as his original claim of entitlement to service connection for malaria, which was denied in the January 1973 rating decision and by letter dated in July 1974. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105 (West 2002). However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). According to 38 C.F.R. § 3.156(a) (2010), "new and material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Veteran's initial claim of entitlement to service connection for malaria was denied by RO rating decision dated in January 1973. The evidence of record at the time of the decision was service treatment records dating from 1968 to 1969 and a November 1972 VA examination. The rating decision indicates that the basis for the RO's denial is the lack of medical evidence establishing in-service treatment for malaria and separation examination was negative for significant finding or complaints and no history of malaria was provided. The Veteran did not perfect an appeal of this decision; therefore, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). Subsequently the Veteran tried to reopen his claim in July 1974, but was denied by letter on the basis that his claim was essentially a duplicative claim that had been previously filed by the Veteran and therefore, no new and material evidence had been received. He was informed that he could appeal this determination, but did not. The Veteran filed a request to reopen this previously disallowed claim in August 2005, and in the February 2006 rating decision, the RO denied the Veteran's claim for service connection for malaria because the service treatment records did not show a confirmed diagnosis of malaria in service, and there was no nexus between a current diagnosis and the Veteran's military service. The Board notes, in this regard, that service treatment records do reflect that the Veteran was seen in September 1971 with a complaint of abdominal pain, nausea, vomiting, diarrhea, increased temperature, and headache. The Veteran gave a history of falciparum malaria in November 1969 and July 1970. The impression was viral syndrome; rule out malaria. A malaria parasite (MP) smear was done, and there is no indication that malaria was subsequently diagnosed or treated. The Veteran's separation examination was devoid of findings of malaria. Subsequent records show no treatment or diagnosis of malaria or residuals thereof. The Veteran was notified of his appellate rights, and perfected an appeal of this issue. In the October 2009 Board remand, as noted above, the Board requested that the Veteran be provided notice information with regard to the requirements to reopen a previously denied claim. The Veteran was provided the proper notice information, however, the Board notes that no new evidence pertaining to this claim has been received other than the Veteran's statements that he had malaria while on active duty service. Since no new evidence has been submitted that pertains to the reasons for the prior denial nor raises the reasonable possibility of substantiating the Veteran's underlying claim, his request to reopen the previously disallowed claim of entitlement to service connection for malaria is denied. 38 C.F.R. § 3.156(a) (2010). II. Service Connection With regard to the Veteran claim of entitlement to service connection for dental injury due to trauma during service, the Veteran has stated that he was wounded in the face by shrapnel and that his two front teeth were knocked out. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). For the record, although service connection may generally be established for a disability resulting from disease or injury incurred in or aggravated by active service, an exception to the general rule is applicable to dental disabilities. According to the statute and regulation, dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2010). Diagnostic Code 9900 contemplates chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Diagnostic Codes 9901 and 9902 address loss of the mandible. Diagnostic Codes 9903 and 9904 concern nonunion and malunion of the mandible, respectively. Diagnostic Code 9905 addresses temporomandibular articulation and limited jaw motion. Diagnostic Codes 9906 and 9907 contemplate loss of the ramus, and Diagnostic Codes 9908 and 9909 address loss of the condyloid process. Diagnostic Codes 9910 and 9910 concern loss of the hard palate. Loss of teeth is contemplated under Diagnostic Code 9913; and loss of the maxilla is addressed under Diagnostic Codes 9914 and 9915. Finally, Diagnostic Code 9916 concerns malunion or nonunion of the maxilla. Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381 (emphasis added). With respect to service connection for missing teeth, the regulations governing dental claims make a fundamental distinction between "replaceable missing teeth" (see 38 C.F.R. § 3.381(a)), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). VA law provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, and rating action should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the Veteran was interned as a prisoner of war. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381 (2010). The following, however, will not be considered service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. 38 C.F.R. § 3.381(e). VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4, provides compensable disability ratings for the loss of teeth due to the loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2010). It is noted that 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. Veterans having a service-connected noncompensable dental condition determined to be the result of combat wounds or other service trauma are also eligible for VA dental care on a Class II(a) basis. 38 U.S.C.A. § 1712(b)(1)(C); 38 C.F.R. § 17.161(c) (2010). The significance of finding a dental condition is due to service trauma is that a Veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2010). Mere dental treatment or cracking a tooth while eating is not sufficient to establish eligibility for treatment. Similarly, broken bridgework due to injury is not dental trauma because it must be the injury of a natural tooth. Further, for the purposes of determining whether a Veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. VAOPGCPREC 5-97 (1997), 63 Fed. Reg. 15,556 (1997); see also 38 C.F.R. § 3.306(b)(1) (2010). Class II(b) or (c) dental outpatient treatment eligibility, extends to Veterans having a service-connected noncompensable dental condition or disability and who were detained or interned as prisoners of war. 38 C.F.R. § 17.161(d), (e). Other categories of eligibility under 38 U.S.C.A. § 1712(b) and 38 C.F.R. § 17.161 include Veterans having a dental condition clinically determined to be complicating a medical condition currently being treated by VA, Veterans whose service-connected disabilities are rated as totally disabling, and some Veterans who are Chapter 31 vocational rehabilitation trainees. 38 C.F.R. § 17.161(g), (h), (i). In this case, the Board notes that the Veteran's service treatment records indicate that the Veteran had an anterior contusion of the lips and a chipped left upper incisor in April 1971. A subsequent April 1971 treatment note indicated that the Veteran had a fractured tooth and that he was scheduled for nerve removal. There is no subsequent dental treatment report of record that indicates that the patient was treated for trauma or fractures of any teeth or missing teeth around that time. Additionally, there is no indication on the Veteran's November 1971 separation examination of any dental problems. The Veteran was afforded a VA dental opinion in August 2010. The examiner noted the in-service treatment, but noted that the dental records available for review only had evidence of routine dental treatment, that is examinations and fillings. The examiner was to evaluate the treatment records from service and then provide an evaluation with regard to the current state of the affected teeth. The examiner noted that there was no evidence of a dental evaluation or treatment during the Veteran's active duty service and no evidence of record regarding the Veteran's current dental condition. Based upon the evidence of record, the Board finds a dental disorder due to trauma for VA compensation or treatment purposes is not shown by the evidence of record. In this regard the Board notes that a request for current dental records or the authorization forms for the VA to obtain any current dental records was made on several occasions, however, there has been no response. VA has a duty to assist the Veteran in obtaining information and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that '[t]he duty to assist is not always a one-way street '). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As the Veteran has failed to provide any treatment records regarding his current dental condition or the means for the VA to obtain any treatment records regarding the Veteran's current dental condition there is no way to determine if the Veteran has a current dental disability as required by 38 C.F.R. § 3.303. Without a current diagnosis, the Board cannot grant service connection. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Based upon the available record, the Board finds the criteria for service connection for compensation purposes for a dental disability as a result of in-service trauma have not been met. The evidence in this case is not in dispute. There is no evidence of the loss of teeth due to a loss of substance of the body of the maxilla or mandible as a result of trauma during active service. Therefore, the Board finds entitlement to service connection for compensation purposes must be denied. The Board further finds that the Veteran was not a prisoner of war during service, he has no service-connected disabilities rated totally disabling, he has no adjudicated service-connected compensable dental disability or dental disorder clinically determined to be complicating a medical disorder currently being treated by VA, and he is not a VA vocational rehabilitation trainee. Therefore, the claim for entitlement to service connection for a dental condition due to dental trauma (claimed as two front teeth knocked out) for treatment purposes, must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. ORDER The Veteran's request to reopen a previously disallowed claim of entitlement to service connection for malaria is denied. Entitlement to service connection for a dental disorder due to trauma, to include for dental treatment purposes, is denied. REMAND After review of the record, the Board finds that a remand for further development is warranted with respect to the issues of entitlement to a compensable disability rating for the residuals of an injury to the right great toe and entitlement to a compensable disability rating for a scar of the forehead as a residual of a shell fragment wound. The Veteran is service-connected for residuals of an injury to the right great toe, and a scar of the forehead as a residual of a shell fragment wound, both are currently evaluated as noncompensable. The Veteran requested an increase in his disability rating in July 2005. The Veteran was scheduled for a VA examination to determine the current level of severity with regard to both claims in November 2005, however the Veteran failed to report for the examinations. The request was cancelled in November 2005. While the Board notes that the RO did make a good faith effort to schedule an examination for the Veteran, the Veteran was incarcerated and therefore was unable to attend the scheduled examination. The Board notes that additional measures may have to be taken to provide the Veteran with an examination while he is incarcerated as VA may be unable to compel prison officials into providing the Veteran with an examination. See Bolton v. Brown, 8 Vet. App. 185 (1995), quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA must "tailor [its] assistance to the peculiar circumstances of confinement . . . [as incarcerated Veterans] are entitled to the same care and consideration given to their fellow [non-incarcerated] Veterans"). The Board notes that in this instance, the Veteran was not scheduled for another examination and no additional assistance was provided to accommodate the incarcerated Veteran. The Board further notes that current records appear to indicate that the Veteran is no longer incarcerated, however, as noted, he has not been rescheduled for a VA compensation and pension examination. As the Veteran has asserted that his claims for residuals of an injury to the right great toe and a scar of the forehead as a residual of a shell fragment wound have increased in severity, a new VA compensation and pension examination is warranted. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a compensation and pension (C&P) examination to determine the current degree of severity of his service-connected residuals of an injury to the right great toe and his service-connected scar of the forehead as a residual of a shell fragment wound. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. All pertinent symptomatology, to include range of motion and all neurological findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. With regard to the right great toe injury, application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A complete rationale should be given for all opinions and conclusions expressed. 2. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond. The Veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs