Citation Nr: 1104531 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 07-18 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for service-connected residuals of a fracture of the mandible. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his substantive appeal, dated June 2007, the Veteran requested a hearing in Washington, D.C. In a December 2009 correspondence to the RO, the Veteran withdrew his request for a hearing and requested to have the matter proceed with the evidence of record. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2010). 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 At the outset, the Board acknowledges the RO's development in this case. Nonetheless, a review of the claims file indicates that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, a notice compliant letter addressing the requirements in Dingess was not sent to the Veteran. Upon remand, a letter should be sent to the Veteran in compliance with Dingess. The Veteran is currently service-connected for residuals of a fracture of the mandible with an evaluation of 30 percent disabling. The Veteran last underwent a pertinent VA examination in July 2007. Indeed, the Veteran's representative, in an Informal Hearing Presentation, dated January 2010, contended that the Veteran's "condition has worsened since the 2007 C&P examination." The Court has held that when a Veteran alleges that his or her service-connected disability has worsened since he or she was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Given the foregoing, on remand, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his service- connected residuals of a fracture of the mandible. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran fully compliant notice as addressed in Dingess. Specifically, inform the Veteran as to how VA assigns disability ratings and effective dates. 2. Schedule the Veteran for a VA examination to determine the nature and current level of severity of the Veteran's service-connected residuals of a fracture of the mandible. The claims file must be made available to the examiner for review. The examiner should review the claims folder in conjunction with this Remand, and the examination report should indicate that such review has occurred. The examiner is requested to identify all symptoms and manifestations of the Veteran's service-connected residuals of a fracture of the mandible that have contributed to the Veteran's overall psychological, social, and occupational functioning. At a minimum, the examiner must address current limitations of inter- incisal and lateral excursion ranges of motion in terms of millimeters, to include a description of the point in that range of motion at which pain occurs. The success of the veteran's claim turns upon the limitation of both inter-incisal range and range of lateral excursion, including such limitation due to pain. The examiner should specifically comment on the functional limitations, if any, due to pain, weakened movement, excess fatigability, or incoordination. Whether there is likely to be additional functional limitation with pain on use or during flare-ups should be addressed. A complete rationale must be provided for all opinions expressed. 3. After ensuring proper completion of all development, readjudicate the issue on appeal. Consideration should be specifically given to DeLuca v. Brown, 8 Vet. App. 202 (1995) in terms of the limitation of both inter-incisal range of motion and range of lateral excursion motion, including such limitation due to pain. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150 (2007). If the disposition remains unfavorable, the RO should furnish the Veteran and his representative with a supplemental statement of the case and afford an appropriate period of time within which to respond thereto. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MICHAEL A. PAPPAS Acting 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) (2010).