Citation Nr: 1203751 Decision Date: 02/01/12 Archive Date: 02/13/12 DOCKET NO. 04-37 906A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial higher (compensable) rating for residuals of a right facial fracture. REPRESENTATION Appellant represented by: Erica Nicole Andersen, Attorney ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to July 2003 with an additional six years, ten months of prior active duty service. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for residuals of a fracture of the right zygomaticomaxillary with craniofacial plates, effective August 1, 2003. In April 2007 and in April 2009, the Board remanded the claim for an increased initial rating for a right facial fracture for further development. In January 2010, the Board denied the Veteran's claim for an initial compensable rating. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2010, the Court Order vacated the decision and remanded the appeal for compliance with the instructions of a November 2010 Joint Motion for Remand. In December 2010, the Board informed the Veteran and his original representative that the Board would readjudicate the claim and that the Veteran had 90 days to submit additional argument or evidence. In March 2011, the Veteran submitted a motion to extend the period of time to submit additional evidence until May 27, 2011. In correspondence three days later, the Board granted the motion to extend the deadline to May 27, 2011. In June 2011, the Veteran's original representative before the Board filed an informal brief with additional argument but no new evidence. On July 26, 2011, the Board remanded the claim for further development and provided a copy to the original representative. In September 2011, the Veteran's representative before the Court captioned above submitted a motion to vacate the Board's July 26, 2011 remand. The representative provided copies of an Appointment of Individual as Claimant's Representative (VA Form 21-22a) in the attorney's favor executed by the Veteran on May 23, 2011 and acknowledged by the attorney on May 26, 2011. The representative submitted a brief dated May 27, 2011and other duplicate materials already in the claims file. The attorney reported that an attempt to deliver the Appointment and materials in person to the Board during business hours on May 27, 2011 was unsuccessful and that the materials were sent by facsimile to the Board and received after the close of business the same day. See 38 C.F.R. § 20.301 (2011). The materials have been associated with the claims file. The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2011). However, a remand is a preliminary order for further procedural and evidentiary development and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011). Furthermore, some but not all additional development directed in the Board's July 2010 remand has been accomplished. This evidence and new argument submitted by the current representative must be considered by the Agency of Original Jurisdiction. Therefore, the motion to vacate the Board's July 2010 remand is denied. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In order to afford the Veteran a full opportunity for representation of his choice and consideration of all relevant evidence and argument, the appeal is REMANDED to the RO. REMAND In a January 2010 decision, the Board found that the Veteran's service-connected residuals of a right facial fracture included photophobia and hypoesthesia but did not consider whether the Veteran was entitled to separate ratings for his photophobia and hypoesthesia symptomatology under 38 C.F.R. § 4.124a, Diagnostic Codes 8205 and 8207 (2010 and any other diagnostic codes that may be applicable to the Veteran's service-connected hypoesthesia. Further, because there was evidence showing that the Veteran's photophobia resulted in headaches, a rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010) and any other diagnostic codes that may be applicable to the Veteran's service-connected photophobia residuals must be considered. The Board observed that the Veteran was last afforded a VA nose, sinus, larynx, and pharynx examination in May 2009. The examiner diagnosed otolaryngological residuals from a zygomaticomaxillary fracture on the right including a scar of the right brow and hypoesthesia of the right temporal region. The diagnosis also included rhinitis, allergic, that was not related to the zygomaticomaxillary fracture. The Veteran was also afforded a VA eye examination in May 2009. The assessment was that the Veteran hit in the face/forehead while playing flag football around 1998, suffering facial fractures and zygomaticomaxillary fracture, right side; a small linear scar on the right upper eyelid, 2 cm long by 1.5 mm wide, that was more than likely than not due to the facial fractures and zygomaticomaxillary fracture, right side. The assessment also included photophobia of the right eye that was more than likely than not due to the facial fractures and zygomaticomaxilary fracture, right side; a small 1mm opacity of the cornea of the right eye, not visually significant, at least as likely as not due to the facial fractures and zygomaticomaxilary fracture, right side; and excellent vision in both eyes. A May 2009 VA dental examination showed that there was no evidence that the Veteran's teeth in the upper right quadrant, especially teeth numbers 2 and 3, were injured in the traumatic incident of 1998. The examiner stated that the need for root canal therapy in tooth number 2 having developed eleven years later was unlikely to be related. As to a dental diagnosis, the examiner stated that there was none to report. In the July 2010 remand, the Board noted that the Veteran had not been afforded a VA examination to address conditions rated under the schedular criteria found at under 38 C.F.R. § 4.124a, Diagnostic Codes 8205, 8207, and 8100 (2010), as indicated pursuant to the November 2010 joint motion. Additionally, the Board noted that the Veteran was not afforded VA examinations for all residuals in more than three years. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Since July 2010, the following evidence and argument has been received and associated with the claims file: records of VA outpatient treatment since through July 2011 including several vision examinations, a VA compensation and pension examination in August 2010 for residuals of right facial fractures, a VA compensation and pension examination in August 2010 for vision and photosensitivity, and a May 27, 2012 representative's written brief. Absent a waiver, this evidence must be considered by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1304 (c) (2011). Accordingly, the case is REMANDED for the following: 1. If not already accomplished in compliance with the July 2010 remand, ask the Veteran to identify all medical providers who have treated him for his service-connected residuals of a right facial fracture since September 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Associate any records received with the claims file. 2. Request all VA treatment records since July 2011 and associate any records received with the claims file. 3. Review the results of the August 2011 compensation and pension examinations for residuals of the facial fracture and vision to ensure that the claims folder was provided to and reviewed by the examiner in conjunction with the examination and that the examiner specifically diagnosed all current residuals of the Veteran's right facial fracture, to include any problems involving the nose, sinus, larynx, and pharynx, as well as any scarring, hypoesthesia, photophobia, and headaches (to include as due to photophobia). All signs and symptoms of the service-connected residuals of a right facial fracture should be reported in detail (including all information for rating this disability pursuant to 38 C.F.R. § 4.72, Diagnostic Code 5296; 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804, 7805; 38 C.F.R §§ 4.75, 4.84, Diagnostic Codes 6009, 6079; and 38 C.F.R. § 4.124a, Diagnostic Codes 8205, 8207, and 8100, (2010)). 3. In addition to the instructions in the July 2010 remand, schedule the Veteran for an examination for residuals of a traumatic brain injury by an appropriately qualified physician. Request that the physician review the claims file and note review of the claims file in the examination report. Request that the physician provide an evaluation of the Veteran's residual symptoms of a traumatic brain injury addressing the rating criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8045. 4. Review the claims file to ensure that all the foregoing requested development is completed and arrange for any additional development indicated. Then, readjudicate the claim for an initial or staged compensable rating for residuals of a right facial fracture. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2011). 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2011).