Citation Nr: 1754024 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-18 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating for residuals, fracture of left zygomatic arc; with a patch hypoesthesia on the left cheek. 2. Entitlement to service connection for right wrist disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for growth behind the left ear with residual scar. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, left ear. REPRESENTATION Veteran represented by: Penelope Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to August 1977. These matters come to Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran has previously claimed entitlement to service connection for left ear hearing loss, and was most recently denied in an August 2008 rating decision. That decision was not appealed and thus became final. 38U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2008). Therefore, the Veteran must in fact first present new and material evidence in order to reopen his claim for entitlement to service connection for left ear hearing loss. 38 C.F.R. § 3.156(a) (2016). In August 2015 and July 2017, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearings has been associated with the claims file. In July 2016, the Board granted service connection for residuals of a fractured jaw, including limitation of jaw function (other than residuals of fracture of left zygomatic arch; with a patch of hypoesthesia on the left cheek). As for service connection for right wrist disability, low back disability, growth behind the left ear, and hearing loss the Board remanded those issues. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, a remand is required to secure VA examinations and opinions, and to obtain potentially relevant VA treatment records. The Veteran was scheduled for VA examinations in connection with his claims in August 2016, but he failed to report. The Veteran was scheduled for low back and right wrist VA examinations from the prior July 2016 Board remand. At his July 2017 hearing, the Veteran reported that he missed his August 2016 VA examinations because he was homeless, he was without transportation, and he did not receive his mail in time to have notice of his scheduled VA examinations. Additionally, the Veteran's attorney requested that the RO contact her to schedule the Veteran's VA examination, in order for her to work with the Veteran to have transportation for the exam. The Board finds that the Veteran has shown good cause for failing to report for his August 2016 VA examinations, thus a remand is necessary to afford the Veteran VA examinations in connection with his service connection claims. During the July 2017 hearing, the Veteran testified that he could only open his mouth so far. He stated that his jaw hurts and he could only chew on his right side. The Veteran testified that his jaw would sometimes lock up. He reported his jaw caused him to have trouble talking. Furthermore, he testified that he could not apply pressure to the left side of his face, if so it would cause pain. While on remand, schedule the Veteran a new VA examination to determine the current severity of his left zygomatic arc. Also at the July 2017 hearing, the Veteran testified that he recently had an appointment through the VA for his hearing loss. The Veteran testified that he was told that his hearing was worse in his left ear. Because these VA records are potentially relevant to the Board's determination, any available VA treatment records should be obtained on remand. The duty to assist requires that VA make all necessary efforts to obtain all updated and relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Given the fact that the Board must remand to obtain updated treatment records, the Board will remand the matter of service connection for growth behind the left ear with residuals scar. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 2. Contact the Veteran and his attorney (Penelope Gronbeck) to determine his most recent mailing address. 3. After the development requested above has been completed, schedule the Veteran for a VA examination (please contact the Veteran's attorney Penelope Gronbeck on scheduling the Veteran's VA examination) to determine the nature and etiology of any additional low back disability. The electronic claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must provide an opinion as to whether the Veteran's low back disability had its onset in service or is otherwise related to service, to include as related to any in-service disease, event, or injury The examiner should to the extent possible attempt to reconcile the Veteran's claims that he injured his back during the same incident in which he injured his service-connected left wrist, which he reports as a slip on ice, with service treatment records showing the Veteran injured his left wrist during a diving accident. 4. Schedule (please contact the Veteran's attorney Penelope Gronbeck on scheduling the Veteran's VA examination) the Veteran for the appropriate to determine the nature and etiology of the Veteran's claimed right wrist disability. The electronic claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must provide an opinion as to whether the Veteran's right wrist disability had its onset in service or is otherwise related to service, to include as related to any in-service disease, event, or injury. The examiner should to the extent possible attempt to reconcile the Veteran's claims that he injured his right wrist during the same incident in which he injured his service-connected left wrist, which he reports as a slip on ice, with service treatment records showing the Veteran injured his left wrist during a diving accident If an examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Schedule (please contact the Veteran's attorney Penelope Gronbeck on scheduling the Veteran's VA examination) the Veteran for an appropriate VA examination to evaluate the severity of the service-connected left zygomatic. Copies of all pertinent records should be made available to the examiner for review. The examiner should address the Veteran's July 2017 lay testimony of the restrictions of his left zygomatic arch. All subjective complaints and objective findings must be noted in the VA examination report. All indicated tests should be conducted. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the Veteran's left zygomatic arch. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The Veteran is hereby notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655(2016). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Then, after ensuring that the requested examinations and opinions comply with the remand specifications, and after any further development deemed necessary, readjudicate the Veteran's claims. If any benefit remains denied, the Veteran and his attorney must be provided a Supplemental Statement of the Case. The requisite period of time for a response should be afforded. The case should then be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).