Citation Nr: 1334458	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  09-41 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable disability rating for residuals of bilateral fractured mandibles.


REPRESENTATION

Appellant represented by:	Jan Dils, Attorney At Law


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to July 1961.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

This case was previously before the Board in December 2011, when the Board granted service connection for a lumbosacral spine disability.  It also remanded the issues of entitlement to service connection for a psychiatric disability, and increased rating for residuals of mandible fracture for additional development.

In April 2012, the Winston-Salem, North Carolina RO granted service connection for the claimed psychiatric disability and entitlement to a total rating for compensation based on individual unemployability (TDIU).

The appeal is remanded to the RO.  The Veteran will be advised if further action is required on his part.


REMAND

At the most recent VA examination in September 2012, the examiner noted that approximately twice a week temporomandibular joints would become stuck about half way open.  These symptoms could be construed as flare-ups of his disability and serve as the basis for increased ratings.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2013).  The disability is rated on the basis of limitation of jaw opening in millimeters.  38 C.F.R. § 4.150, Diagnostic Code 9905 (2013).  The Board requires clarification of the distance the Veteran's jaw is open when it becomes stuck.

Accordingly, this case is REMANDED for the following:

1.  Ask the examiner who provided the Veteran's September 2012 VA dental examination to provide an estimate of the opening of the Veteran's temporomandibular articulation in millimeters if stuck half way open.

If the examiner is not available, another dental or medical professional may provide the needed opinion.  If further examination is recommended, this should be arranged.

2.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then return the case to the Board, if otherwise in order.

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).




____________________________________________
Mark D. Hindin
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).