Citation Nr: 1119723 Decision Date: 05/23/11 Archive Date: 06/06/11 DOCKET NO. 07-37 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a mouth/jaw injury. 2. Entitlement to service connection for residuals of a thumb injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran had active service from July 1961 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2008, the Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. For the reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to final adjudication of the issues on appeal. With regard to the service connection claims on appeal, the Veteran contends that he currently experiences residual jaw and thumb pain as a result of his service. Specifically, he relates the jaw pain to a mouth injury sustained in service in 1964 during a boxing match. He reported experiencing severe mouth pain and stated that several of his teeth were damaged in the fight and later became infected, leading to his current mouth and jaw condition. With regard to his thumb, he reports that he was assaulted with a cue stick in 1963, during a bar fight, and that his head and thumb were injured at the time. A review of the service treatment records shows that the Veteran was hit on his head with a cue stick at a bar in December 1964 and was treated for a contused scalp and a bite wound to his hand. A September 1963 record shows that the Veteran was found physically qualified for boxing. Dental records show treatment for the teeth during service. An April 1967 post-service VA treatment record notes the Veteran had trouble with his upper lateral incisors during service as well as a history of probable infection in the left maxillary sinus. The examiner indicated that X-ray findings showed that the lateral left upper incisors were dead teeth and had been extracted and replaced with a partial denture. Records from 1994 to 2006 show ongoing treatment for dental problems. A February 2007 VA treatment record noted that the Veteran had a history of a thumb injury in 1963 and that he was unsure whether his thumb had been fractured. Findings showed bilateral ulnar neuropathy and bilateral carpal tunnel syndrome. Additional evidence of record shows that the Veteran was a boxer in service and that he had inservice treatment for injuries to the head and hand related to a bar fight. Post-service records show complaints of, and treatment for, the above mentioned complaints. However, no pertinent VA examination has been afforded to the Veteran. The Board further notes that the Veteran's representative requested an examination during a January 2008 DRO hearing. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the claimant suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2010). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Based on the evidence as discussed above, including the Veteran's testimony of observable symptoms and current treatment records, the Board finds that a VA examination is necessary in order to determine his complete disability picture and to determine whether his current symptoms are related to service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. As this case presents certain medical questions which cannot be answered by the Board, a VA examination must be conducted. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. Thus, a VA examination is necessary. See 38 C.F.R. § 3.159(c)(4). See also Colvin, supra. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of any mouth/jaw disability and/or thumb disability that he may have. The Veteran's claims folder must be provided to the VA examiner(s) to review in conjunction with the examination(s). The examination report(s) should state that the claims folder has been reviewed. All pertinent mouth/jaw, and thumb, disability(ies) diagnosed on examination should be annotated in the examination report(s). If a diagnosis cannot be rendered with regard to these disabilities, the examiner(s) should so state. For any such disability diagnosed on examination(s), the examiner(s) should opine as to whether it is "more likely than not" (a likelihood greater than 50%), "at least as likely as not" (a likelihood of at least 50%), or "less likely than not" or "unlikely" (a likelihood of less than 50%) that such disability(ies) had its(their) clinical onset in service or is(are) otherwise related to active duty. In answering this question, the examiner(s) should consider the pertinent service and post-service treatment records; the Veteran's reports of experiencing severe mouth pain and a thumb injury during service; and the Veteran's history during service as a boxer. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner(s) should provide a thorough and complete rationale for all opinions provided in the examination report(s). 2. The claims folder should be reviewed to ensure that all of the foregoing development has been conducted and completed in full. In particular, the RO/AMC should determine whether the examiner(s) has(have) responded to all questions posed. If not, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (2010). 3. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the appeal is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the matters that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).