Citation Nr: 1328793 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-02 567 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to a compensable rating for the service-connected residuals of a fractured mandible. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from April 1978 until August 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the RO. In December 2009, the Board, in pertinent part, denied the Veteran's claim for a compensable rating for the service-connected residuals of a fractured mandible. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In July 2011, the Court issued a single judge memorandum decision vacating the December 2009 decision and remanding the matter for further development. The issues of service connection for tinnitus (see September 2005 report of VA scars examination) and residuals of dental trauma (claimed as missing upper and lower teeth) for purposes of compensation (see VA Form 9, dated in January 2007, wherein Veteran claimed that he had "systemically lost all his teeth {upper and lower}" as a result of injuries sustained during military service) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers them to the AOJ for appropriate action. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the July 2011 Memorandum Decision, the Court found, in pertinent part, that, in its December 2009 decision, the Board failed to give adequate reasons and bases to support its decision to deny a compensable rating for the service-connected residuals of the fractured mandible. Specifically, the Court found that the Board relied on an inadequate VA examination in concluding that a compensable rating was not warranted. In a September 2005 report of VA examination, the examiner documented that clinical examination showed good oral hygiene, only one tooth remaining, number 17, with advanced periodontal disease on 90 percent rotation. The examiner noted that the Veteran had maxillary and mandibular prosthesis that he did not wear. In pertinent part, the examiner reported that there was normal range of motion of the mandible. The examiner concluded that "the clinical findings [did] not correlate with the patient's claim." The Court found that the September 2005 VA examination was inadequate because it failed to address whether there was any loss of masticatory function. Further, the Court held that the examiner failed to explain the basis for his conclusion. In that regard, the Court found that it was unclear what the examiner meant in referring to the "patient's claim," (i.e., whether the examiner was talking about the Veteran's claim for a compensable rating or his complaints of pain). Finally, the Court found that the September 2005 VA examination was inadequate because it failed to address whether any part of the Veteran's mandible was lost as the result of the in-service injury or other elements of diagnostic code 9913, such as whether the "lost masticatory surface can be restored by suitable prostheses. The Court determined that the Board's reliance on this inadequate examination was error. See Stefl v. Nicholson, 21 VetApp. 12 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him provide the name and address of any health care provider who has treated him for the service-connected residuals of the fractured mandible since September 2005. After obtaining any required releases, copies of all records from any identified treatment source should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He should be notified of any unsuccessful effort, in order to afford him the opportunity to obtain and submit those records to VA for review on his own. The Veteran also should be notified that he may submit medical evidence or treatment records in support of the his claim. 2. The RO then should have the Veteran scheduled for a VA dental and oral examination to determine the severity of the service-connected residuals of the fractured mandible. The claims folder must be made available to and reviewed by the examiner. All indicated tests and studies are to be performed. The examiner must address the degree of motion and whether there was any loss of masticatory function. The examiner must also address whether any of the Veteran's mandible was lost as a result of the in-service injury and whether any lost masticatory surface could be restored by a suitable prosthesis. All opinions and conclusions expressed by the examiner must be supported by a complete rationale. 3. After completing all indicated development, the RO should readjudicate the Veteran's claim for increase remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2012). _________________________________________________ STEPHEN L. WILKINS 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) (2012).