Citation Nr: 1330900 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-05 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for residuals of a right mandible fracture with myofascial pain dysfunction and traumatic arthritis of the temporomandibular joints, rated as 20 percent disabling prior to May 9, 2012, and 30 percent disabling since May 9, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1979. The Veteran also had a subsequent period of unverified service in a reserve component. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In June 2009, the Veteran testified at a hearing before the undersigned. Then in April 2010 and March 2012, the Board this matter for further development. In an August 2013 rating decision, the Appeals Management Center assigned a 30 percent disability rating for the residuals of a right mandible fracture effective May 9, 2012. This assignment of a higher rating was not a complete grant of benefits. AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted in the April 2010 and March 2012 remands, the Board reiterates that the issues of service connection for headaches and sinusitis secondary to the Veteran's service-connected residuals of a right mandible fracture have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Moreover, the issues of entitlement to service connection for dysphagia as secondary to the residuals of a right mandible fracture, a psychiatric disorder secondary to the service-connected lumbar spine and the residuals of a right mandible fracture, and a gastrointestinal disorder, to include gastroesophageal reflux disease, as secondary to taking medications for the service-connected lumbar spine and the residuals of a right mandible fracture, have been raised by the record (see August 2013 written brief presentation), but have not been adjudicated by the AOJ. In the August 2013 written brief presentation, the representative argues in essence that the Board can grant service connection for dysphagia and assign a separate disability rating pursuant to a diagnostic code in 38 C.F.R. § 4.114 (2012). The representative also explicitly argues that pursuant to 38 C.F.R. § 3.310 (2012) the Board can take jurisdiction over entitlement to service connection for a psychiatric disorder secondary to the service-connected lumbar spine and the residuals of a right mandible fracture, and a gastrointestinal disorder, to include gastroesophageal reflux disease, as secondary to taking medications for the service-connected lumbar spine and the residuals of a right mandible fracture. As noted by the representative, dysphagia is a separately ratable disability. Thus, the AOJ must initially adjudicate whether service connection can be granted for that disability. Similarly, 38 C.F.R. § 3.310 (2012) provides a theory of entitlement for service connection for a psychiatric disorder and a gastrointestinal disorder - secondary to the service-connected disability on appeal. That regulation does not provide jurisdiction to the Board for these claims because the AOJ has not adjudicated these claims. Thus, referral to the RO rather than remand is appropriate given the fact that these additional claims for service connection claims are not inextricably intertwined with a claim of an increased rating for residuals of a right mandible fracture. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board does not have jurisdiction over all of these issues, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board remanded this claim for a VA examination for additional development. Specifically the claim was remanded to (1) have an examiner conduct inter-incisal range of motion studies of the temporomandibular joint and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and express this in terms of additional degrees of limitation of inter-incisal range of motion; and (2) if the Veteran describes flare-ups of pain, have an examiner offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and express this in terms of additional degrees of limitation of inter-incisal range of motion during the flare-ups. The May 2012 VA examiner noted that the Veteran reported flare-ups and that he had incoordinated mandibular movement and pain during the examination. The examiner, however, did not express opinion as to whether there would be additional limits on functional ability during flare-ups, and express this in terms of additional degrees of limitation of inter-incisal range of motion during the flare-ups. Moreover, the examiner did not address whether the incoordinated mandibular movement and pain in terms of additional degrees of limitation of inter-incisal range of motion. In addition, while the examiner indicated that there was no weakness, the examiner did not address whether excess fatigability with use was present or absent. Therefore, the May 2012 VA examination did not comply with the directives of the Board's March 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's original claims file has been misplaced, and it has been reconstructed to the extent possible. The June 2009 Board hearing transcript reflects that the appellant submitted records from San Antonio School of Dentistry. The AMC should attempt to obtain records from the San Antonio School of Dentistry through contacting the claimant and/or contacting the school with a proper authorization of release of records. In April 2010 remand, the Board requested that the AMC obtain records from the Social Security Administration. A November 2011 supplemental statement of the case reflects that the Social Security Administration records were obtained and their relevancy was discussed in the analysis. The AMC should contact the Social Security Administration and attempt to obtain another copy of the records of the Social Security Administration pertinent to his claim for disability benefits. Finally, the Veteran should be afforded an opportunity to identify any treatment since July 2013 (the month of the last correspondence containing this request) and the AMC should also obtain any additional records from the Dallas VA Medical Center and Fort Worth VA Outpatient Clinic since July 2013. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any treatment for his residuals of a right mandible fracture with myofascial pain dysfunction and traumatic arthritis of the temporomandibular joints since July 2013 and to submit any copies of dental records from the San Antonio School of Dentistry or, if he does not have any copies, to authorize the release of those records. Obtain any records that the appellant authorizes the release of to VA. 2. Obtain and associate with the claims files all of the Veteran's treatment records from the Dallas VA Medical Center and Fort Worth VA Outpatient Clinic since July 2013. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. All actions to obtain the requested records should be documented fully in the claim's files. Because these are Federal records, if they cannot be located or no such records exist, a memorandum of unavailability must be associated with the claim's files. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 3. Obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security Administration disability benefits as well as the medical records relied upon concerning that claim. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. All actions to obtain the requested records should be documented fully in the claim's files. Thereafter, the Veteran should be notified in writing if the records are unavailable. Because these are Federal records, if they cannot be located or no such records exist, a memorandum of unavailability must be associated with the claim's files. 4. Make arrangements with an appropriate VA medical facility for the Veteran to be afforded a dental examination. The claim's folder, including a copy of this remand, is to be provided to the examiner for review in conjunction with the examination. After a review of the record on appeal and an examination of the claimant, the examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of the residuals of a right mandible fracture with myofascial pain dysfunction and traumatic arthritis of the temporomandibular joints. The examiner should also provide VA with the following information: (a) The examiner should conduct inter-incisal range of motion studies of the temporomandibular joint. In so doing, the examiner should indicate: i) whether there is weakened movement, including weakened movement against varying resistance. If so, such should be expressed in terms of additional degrees of limitation of inter-incisal range of motion; ii) whether there is excess fatigability with use. If so, such should be expressed in terms of additional degrees of limitation of inter-incisal range of motion; and iii) whether there is painful motion and/or pain with use. If so, such should be expressed in terms of additional degrees of limitation of inter-incisal range of motion. (b) The examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and express this in terms of additional degrees of limitation of inter-incisal range of motion during the flare-ups. The examiner should provide a detailed report of any and all manifestations of the Veteran's the residuals of a right mandible fracture with myofascial pain dysfunction and traumatic arthritis of the temporomandibular joints. If the examiner is unable to provide any opinion requested, he or she should fully explain why such opinion could not be reached. 5. After undertaking any additional development deemed necessary and ensuring that the VA examination report obtained as a result of this remand complies with the instructions set forth herein, readjudicate the Veteran's claim. Such readjudication should take into account any lost motion caused by pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Such readjudication include consideration of both whether a rating in excess of 20 percent prior to May 9, 2012, is warranted, and whether a rating in excess of 30 percent since May 9, 2012, is warranted. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. 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). 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). _________________________________________________ DAVID L. WIGHT 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).