Citation Nr: 1339666 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-26 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for headaches. 2. Entitlement to a compensable rating for residuals of a jaw fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1969 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Louisville, Kentucky Regional Office (RO). In June 2013 a videoconference hearing was held before the undersigned; a transcript is associated with the record. The issue of service connection for headaches on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran is action on his part is required. FINDINGS OF FACT 1. An unappealed August 1972 rating decision denied the Veteran's claim of service connection for headaches based on a finding that such disability was not shown. 2. Evidence received subsequent to the August 1972 rating decision tends to show the Veteran has a headache disorder, relates to an unestablished fact necessary to substantiate the claim of service connection for headaches, and raises a reasonable possibility of substantiating such claim. 3. The Veteran's residuals of jaw fracture are manifested by incisal opening limited to 40 millimeters. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for headaches may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2 A 10 percent rating is warranted for the Veteran's residuals of a jaw fracture. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.150, Diagnostic Codes (Codes) 9903, 9904, 9905 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch as this decision reopens the claim of service connection for headaches, there is no need to belabor whether the Veteran received Kent-compliant notice in the matter. Letters in July and September 2009 provided the Veteran the generic notice required in claims for increase. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. The transcript of the June 2013 hearing reflects the undersigned specifically noted that to establish service connection it must be shown you have a chronic disability and that it is related to service. The Veteran's testimony in response to the questions posed by the undersigned focused on the elements necessary to substantiate the claims; by his testimony he demonstrated that he is aware of the elements necessary to substantiate his claims, and what must still be shown. Significantly, it is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. He has been afforded a VA examination to evaluate his jaw fracture residuals, and the Board finds the report of that examination adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist (as to the matters decided) is met. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Claim to reopen The Veteran's STRs show he was seen in February 1970 with complaints of a cough and headache. The impression was upper respiratory infection. In April 1970, he complained of a sore throat, dizziness and headache. He reported constant headaches in January 1971. In July 1971 he sustained a fracture of the right zygomatical maxillary complex. On service separation examination in September 1971 neurological evaluation was normal. In October 1971 the Veteran complained of frequent headaches, especially when reading, and was given a prescription for glasses; that month he was also referred to ophthalmology with a notation of headaches. He again reported headaches behind his eyes in November 1971. The diagnosis was right frontal sinus headache. An August 1972 rating decision denied the Veteran service connection for headaches based on a finding that such disability was not shown; he was notified of the determination by letter the following month. He did not appeal the decision (or submit new and material evidence within a year following). Evidence received since the August 1972 rating decision includes VA outpatient treatment records and a VA examination report, several statements submitted on behalf of the Veteran, and his testimony at a hearing before the undersigned in June 2013. In a statement dated October 2009, I.B. related she has known the Veteran for 40 years and lived with him for 20 years. She related she noticed he had headaches upon his return from service and had told her that the headaches had bothered him prior to discharge. She indicated the headaches became more of a problem over the years. In a letter received in October 2009 E.B. related that she was friends with the Veteran for more than 40 years, and knew him prior to service. She related that after he returned from service, he complained that his head hurt. While he did not say much about it, she could tell he was distressed. She reported she advised him to have the headaches evaluated. On VA neurology examination in April 2010 the Veteran stated he began to have headaches as soon as he was injured in service. He asserted he sought treatment at a VA medical center right after service, but to no avail. The diagnosis was headaches. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The August 1972 rating decision noted the Veteran's service separation examination did not mention headaches. While it was also indicated the Veteran had complaints of headaches in October 1971, no diagnosis was made and on a subsequent visit in November 1971, there was no reference to headaches. The statements from I.B. and E.B. suggesting the Veteran has had headaches since service establish an element of service connection which was missing at the time the claim was previously denied, i.e., that he has such disability. In addition, he now argues that his headaches are secondary to his service connection jaw fracture residuals. The Board finds that the evidence received since the August 1972 rating decision, addresses an unestablished fact necessary to substantiate the claim of service connection for headaches (as it tends to show he has a headaches disability), and considered in conjunction with the record raises a reasonable possibility of substantiating the claim. Lay persons are competent to observe that a person may be having a headaches, and to report continuity of complaints. Therefore, the evidence received is both new and material, and the claim for service connection for headaches may be reopened. De novo review is addressed in the remand below. Rating for residuals of a jaw fracture Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A 30 percent evaluation may be assigned for nonunion of the mandible that is severe. When moderate, a 10 percent evaluation may be assigned. The rating is dependent upon degree of motion and relative loss of masticatory function. 38 C.F.R. § 4.150, Code 9903. A 20 percent evaluation may be assigned for malunion of the mandible with severe displacement. When moderate, a 10 percent evaluation may be assigned. A 0 percent rating is to be assigned with slight displacement. The rating is dependent upon degree of motion and relative loss of masticatory function. 38 C.F.R. § 4.150, Code 9904. Under Diagnostic Code 9905, a 10 percent rating is warranted when the range of lateral excursion of temporomandibular articulation is limited to 0 to 4 millimeters or the inter-incisal range is limited to 31 to 40 millimeters; a 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 millimeters; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the range is limited to 0 to 10 millimeters. 38 C.F.R. § 4.150, Code 9905. The Veteran asserts a higher rating is warranted for residuals of a fracture of the right mandible because his jaw pops loose and he has pain when he pushes it back in. The Board acknowledges that the July 2009 and September 2012 VA examinations did not find malunion or nonunion of mandible. On the earlier examination, the examiner stated there was no limitation of motion at the temporomandibular joint articulation. However, it was noted that the maximum incisal opening was to 40 millimeters. Resolving reasonable doubt in the Veteran's favor, the Board finds that such findings approximate (based on apparent impairment) the criteria for a 10 percent, but no higher, rating for the residuals of the jaw fracture. The Board has considered whether referral for of this claim for consideration of an extraschedular rating is indicated. The Board notes that all findings and impairment (primarily pain) associated with the jaw fracture residuals are encompassed by the schedular criteria for the rating now assigned. Therefore, those criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). It is neither alleged, nor suggested by the record, that the Veteran's residuals of jaw fracture render him unemployable. ORDER The appeal to reopen a claim of service connection for headaches is granted. A 10 percent rating is granted for the residuals of a jaw fracture, subject to the regulations governing payment of monetary awards. REMAND The Board finds that further development is needed for proper de novo adjudication of the reopened claim of service connection for headaches. [Notably, VA medical records show the Veteran sustained a fracture of the left mandible in December 1995, requiring surgery.] The Veteran argues his headaches are secondary to his service-connected jaw fracture. While a VA examiner concluded in April 2010 that the Veteran's headaches were not caused by or related to the trauma in service, the opinion does not address whether the headaches have been aggravated by his service-connected jaw fracture (a factor which must be considered in a claim of secondary service connection). Accordingly, the case is REMANDED for the following action: 1. Send the claims folder to the examiner who conducted the April 2010 VA examination. She should be requested to provide an opinion as to whether it is at least as likely as not (a 50 % or higher probability) that the Veteran's headaches are related either to the headache complaints noted in service or were caused or aggravated (permanently increased in severity beyond normal course) by his service-connected right jaw fracture his headaches. [The examiner should note that the Veteran sustained a fracture of the left mandible following service, and that the effects of such injury may not be considered.] If it is determined that the headaches are not directly related to those in service, and were not caused by the residuals of a right jaw fracture, but were aggravated by the right jaw fracture, the examiner should quantify, if possible, the degree of the headaches that is due to such aggravation. If the examiner who conducted the April 2010 VA examination is unavailable, the Veteran should be scheduled for a new VA examination to secure the opinions sought. 2. Thereafter, the RO should review the record and readjudicate de novo the claim of service connection for headaches (addressing both direct and secondary service connection theories of entitlement). If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs