Citation Nr: 1300459	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  10-37 069	)	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 service connection for undifferentiated type schizophrenia.

2.  Entitlement to an increased disability rating in excess of 10 percent disabling for residuals of a fracture of the right and left mandible with acute and chronic temporomandibular joint disease and irregular mandibular movements (a jaw disability).


REPRESENTATION

Appellant represented by:	Arkansas Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 1985 to December 1985, and from January 1988 to May 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In a September 2010 substantive appeal, the Veteran requested a Board Hearing at a local VA office (Travel Board hearing).  In a subsequent letter sent to the Veteran in May 2012, the RO informed the Veteran of a Travel Board hearing scheduled for August 14, 2012.  The Board hearing opportunity applied to both issues then on appeal.  On the date of the scheduled hearing, the Veteran effectively withdrew his appeal as to the issue of whether new and material evidence has been received to reopen service connection for schizophrenia, undifferentiated type (discussed in the below decision).  He also effectively withdrew his Travel Board hearing request with respect to the issue of an increased disability rating for a jaw disability by his written submission, coupled with the fact that he did not attend the scheduled hearing, did not request to reschedule the hearing, and did not provide good cause for failure to appear for the hearing on the remaining issue of increased rating for a jaw disability.  For these reasons, the Board hearing request is considered to have been withdrawn.  See 38 C.F.R. § 20.702 (2012). 

During the pendency of this appeal, in a notice of disagreement received in September 2010, the Veteran disagreed with the initial ratings assigned for migraine headaches and traumatic brain injury in an April 2010 rating decision.  A statement of the case was issued in April 2012; however, the Veteran did not perfect an appeal as to these issues; hence, these issues are not properly before the Board.  38 C.F.R. § 20.302 (2012).

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.

The issue of entitlement to service connection for a dental disability for the purpose of obtaining VA outpatient dental treatment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of an increased disability rating in excess of 10 percent disabling for a jaw disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

Prior to the promulgation of a decision by the Board, the Veteran notified the Board, in writing, of his intent to withdraw his appeal of the issue of whether new and material evidence has been received to reopen service connection for undifferentiated type schizophrenia.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran regarding the issue of whether new and material evidence has been received to reopen service connection for undifferentiated type schizophrenia have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Withdrawal of Issue of Reopening Service Connection for Schizophrenia

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing.  38 C.F.R. § 20.204.

In this case, in August 2012 and before a final decision was promulgated by the Board, the Veteran notified the Board, in writing, that he wished to withdraw his appeal regarding the issue of reopening service connection for undifferentiated type schizophrenia; hence, there remain no allegations of errors of fact or law for appellate consideration on this issue.  Accordingly, the Board does not have jurisdiction to review the appeal as to whether new and material evidence has been received to reopen service connection for schizophrenia, undifferentiated type, and this issue is dismissed.  


ORDER

The appeal of whether new and material evidence has been received to reopen service connection for schizophrenia, undifferentiated type, is dismissed.


REMAND

Preliminarily, the Board notes that the RO construed a July 2011 telephone conversation with the Veteran as a withdrawal of the issue of an increased disability rating in excess of 10 percent disabling for a jaw disability; however, upon review, the Board does not find that the Veteran effectively withdrew his claim as to this issue at that time, or at any other time during the appeal period.  See 38 C.F.R. § 20.204.  As such, the Board has jurisdiction over the issue of an increased disability rating in excess of 10 percent disabling for a jaw disability.

A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012).

Here, the Veteran's service-connected jaw disability is rated under 38 C.F.R. § 4.150, Diagnostic Code 9904, for malunion of the mandible.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. 
§§ 4.1, 4.2, 4.10 (2012).  The Veteran's jaw disability includes acute and chronic temporomandibular joint disease.  For this reason, the Board must also consider 38 C.F.R. § 4.150, Diagnostic Code 9905, for rating based on limited motion of temporomandibular articulation. 

The Board also notes that the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. § 4.59 (2012).

The Veteran's most recent VA examination of his service-connected jaw disability took place in October 2008, which is now over four years ago.  The October 2008 VA dental and oral examination is inadequate for VA purposes as no assessment of additional limitations of motion or function of the jay were obtained for the Veteran's service-connected jaw disability.  Indeed, the October 2008 examiner indicated that the Veteran had pain with right and left lateral excursion of the mandible; however, he did not indicate whether the pain resulted in additional functional loss.  As such, the Board has no basis upon which to estimate the actual degree of functional impairment under the factors indicated under 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca.  The United States Court of Appeals for Veterans Claims has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Accordingly, the issue of increased disability rating in excess of 10 percent disabling for jaw disability is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to assist in determining the severity of his service-connected jaw disability.  The VA examiner should conduct all testing and evaluation needed to make this determination.  Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report.

The relevant documents in the claims file should be made available to the examiner for a review of the Veteran's pertinent medical history.  

The examiner should specifically:

a) Provide the range of motion of the temporomandibular joint (inter-incisal range and range of lateral excursion), expressed in degrees, as well as the relative loss of masticatory function, if any.

b) Determine whether the temporomandibular joint exhibits weakened movement, excess fatigability, incoordination, pain, or flare-ups attributable to the service-connected jaw disability.  These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare ups.  For example, the examiner should report the point in the range of motion when pain becomes apparent.

If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2. After completion of the above and any additional development deemed necessary, the claim for an increased disability rating in excess of 10 percent disabling for a jaw disability should be readjudicated in light of all the evidence of record.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim.  See 38 C.F.R. § 3.655 (2012). 

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. 2012).



______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs