Citation Nr: 1328620 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-02 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of head trauma, to include headaches. 2. Entitlement to residuals of a comminuted left zygoma fracture with nerve involvement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied entitlement to service connection for residuals of a head injury with headaches. The issues have been recharacterized above to more accurately reflect the nature of the claim. In an August 2013 written response to a hearing clarification letter, the Veteran indicated that he did not wish to appear at a Board hearing. A review of the Virtual VA and VBMS electronic claims files does not reveal additional documents pertinent to the present appeal. The issue of entitlement to service connection for dental trauma has been raised by the record, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, a January 2009 deferral indicates the need for additional development, but the file does not reflect final adjudication action. As such, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for residuals of head trauma, to include headaches is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran suffered a comminuted left zygoma fracture with nerve involvement while on active duty that left chronic residuals. CONCLUSION OF LAW Chronic residuals of a comminuted left zygoma fracture with nerve involvement were incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A. 5107 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION As service connection for chronic residuals of a comminuted left zygoma fracture with nerve involvement is being granted, discussion of VA's compliance with the notice and duty to assist requirements of the Veterans Claims Assistance Act of 2000 would serve no useful purpose. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the Veteran was involved in a July 1968 car accident during which he suffered a closed comminuted fracture of the left zygoma. The fracture was surgically repaired. Following a 24 day hospitalization the appellant was discharged with a diagnosis of a comminuted left zygoma fracture with nerve involvement. In August 1969, the appellant was treated for pain in the nose area. In December 2008, the Veteran was seen for a VA examination. The examiner found that the appellant suffered from impaired facial sensation. Given the fact that the appellant suffered a comminuted left zygoma fracture and nerve impairment while on active duty, and given that the December 2008 VA examination found impaired facial sensation, the Board will resolve reasonable doubt in the appellant's favor and grant entitlement to service connection for chronic residuals of a comminuted left zygoma fracture with nerve involvement. To this extent the benefit sought on appeal is granted. ORDER Entitlement to service connection for residuals of a comminuted left zygoma fracture with nerve involvement is granted. REMAND The Board finds that further development is necessary prior to final adjudication of the Veteran's remaining claim. The Veteran contends that his headaches stem from his in-service car accident. See, e.g., March 2008 claim; March 2009 notice of disagreement; June 2009 written statement. As noted above, the service treatment records document the history of this July 1968 accident. Following hospitalization that month, a final diagnosis of fracture of left zygoma, comminuted, with nerve involvement was provided. He continued to report pain more than a year later, as well as at his VA examination in 2008. The Veteran is now service connected for residuals of a comminuted left zygoma fracture with nerve involvement. The Veteran was afforded a VA examination in December 2008 at which the examiner determined that there was no evidence of a traumatic brain injury or objective evidence of memory loss, and that his current headaches were not caused by or a result of the left facial trauma during service. While the examiner opined that headaches were attributable to a lack of sleep as documented in VA treatment records, in light of the grant of service connection awarded in this decision, the examiner must now address whether the appellant's headaches are aggravated by residuals of a comminuted left zygoma fracture with nerve involvement. In addition, the December 2008 VA examiner based her findings, in part, on notations in VA treatment records from that month; however, treatment records in the claims file are only current to May 2008. In a June 2009 written submission, the Veteran reported that he receives ongoing treatment from the VA Medical Center Miami and the Broward County VA outpatient clinic. As such, any outstanding VA treatment records pertinent to the claim should be obtained on remand. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any pertinent and outstanding treatment records, to include records from the Miami VA Healthcare System (VA Medical Center Miami and Broward County VA Outpatient Clinic) dated since May 2008. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Then, the RO/AMC should forward the claims file to the VA examiner who performed the December 2008 VA examination, or a similarly qualified examiner, for a complete review of the claims file, to include Virtual VA, and preparation of an addendum opinion addressing whether it is at least as likely as not that the appellant's headaches are permanently aggravated by his service connected residuals of a comminuted left zygoma fracture with nerve involvement. The examiner must also address whether there are any other head or facial disorders which are residuals of the Veteran's in-service trauma, to include any additional disorders identified from review of VA treatment records. A well reasoned rationale must be offered for any and all opinions expressed. If the required opinion cannot be provided, the examiner should provide an explanation in the report. An additional examination of the Veteran should be performed if deemed necessary by the person providing the opinion. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must ensure that all medical examination reports fully comply with the terms of this remand. The AMC/RO must ensure that the examiner documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other appropriate development, the AMC/RO should readjudicate the remaining issue on appeal. If the benefit sought is not granted, the Veteran must be furnished with a supplemental statement of the case and afforded an opportunity to respond before returning the record 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). 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs