Citation Nr: 1335258 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 00-01 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation for a left zygoma fracture. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active service from October 1978 to July 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for a left zygoma fracture and assigned an initial noncompensable disability rating. This issue has previously come before the Board. In August 2004, November 2010, July 2012, and April 2013 the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND A preliminary review of the record indicates that this claim requires additional development. In the July 2012 remand, the Board requested that the Veteran be provided a VA examination. The examiner was to provide an opinion as to the degree of impairment due to the Veteran's service-connected fracture of the left zygoma, to include a finding as to any degree of displacement of the maxilla, expressed in terms of slight, moderate or severe. The August 2012 VA examination report failed to describe the degree of displacement of the maxilla in the terms requested by the Board. In fact, the examination did not address this matter at all. Since VA did not conduct the necessary development to determine the severity of the Veteran's service-connected fracture of the left zygoma, the Board again remanded the matter in April 2013. An addendum opinion was sought and rendered in August 2013; however, the development requested by the Board's July 2012 and April 2013 remands was still not fully completed. The August 2013 addendum opinion indicated, "Reviewing the VBMS it only revealed the veteran was injuries with wrist (left and right), facial fracture ([A]pril 15, 1988 to May 3, 1988) in Frankfurt [Army] Hospital. Review dental records did not see any surgery for fracture jaw (facial) only the VA Examination form by patient. No record of injuries." The examiner then opined, "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner reasoned, "[r]eview VBMS no record of injuries only VA [examination] [questionnaire] form. Did not see any [information] about injuries during active." The Veteran argued that the addendum opinion failed to comply with the Remand instructions and the RO prematurely adjudicated the claim before complying with the Remand instructions. See October 2013 Informal Hearing Presentation. The Board concurs. As VA did not conduct the necessary development to determine the severity of the Veteran's service-connected fracture of the left zygoma, the development requested by the Board's July 2012 and April 2013 remands was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the VA examiner who conducted the August 2012 VA examination and rendered the August 2013 addendum opinion (or a suitable substitute if this individual is unavailable) for an additional addendum. The examiner is requested to review the claims folder. Based on the findings set forth in the August 2012 VA examination report, the examiner is asked to provide an opinion as to the degree of impairment due to the service-connected fracture of the left zygoma, to include a finding as to any degree of displacement of the maxilla, expressed in terms of slight, moderate or severe. The examiner is requested to provide a rationale for any opinion expressed. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). _________________________________________________ MILO H. HAWLEY 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).