Citation Nr: 18145948 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 10-29 716 DATE: October 30, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to October 1988 and from April 1989 to November 2008. This case comes to the Board of Veterans’ Appeals (Board) on appeal of an April 2009 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2011, a videoconference Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s record. The Board remanded the claim in January 2014 for further development. By rating decision of May 2014, the noncompensable evaluation for the issue on appeal was increased to 10 percent, effective February 2009. The United States Court of Appeals for Veterans Claims indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, the issue on appeal is still in appellate status. The Board remanded the claim in September 2016 and August 2017 for further development. In an April 2018 rating decision, the AOJ assigned a separate disability rating for limitation of motion, temporomandibular joint articulation. Entitlement to a disability rating in excess of 10 percent for vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements Regrettably, remand is yet again required to provide an examination that complies with prior remand directives. If the Board proceeds with final disposition of an appeal, and the remand order has not been complied with, the Board errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection is in effect for the Veteran’s vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements. The Veteran has appealed the disability rating assigned for this disorder. As a consequence of the Board’s previous remands, service connection for limitation of motion, temporomandibular joint (TMJ) articulation, was granted, effective November 3, 2011. The Veteran has not appealed the 20 percent rating assigned for this aspect of the Veteran’s increased ratings claim. As such, the Board will disregard symptoms attributable to TMJ syndrome or limited motion in evaluating any other residuals of the Veteran’s vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements. Regarding any other residuals, the Board has requested on numerous occasions that an examination provide insight into functional and cosmetic effects from the Veteran’s in-service jaw surgery. Unfortunately, the development requested has not been completed. First, at a February 2014 VA examination, the examiner stated that there were some cosmetic aspects of the Veteran’s jaw surgery. Other than noting that there were cosmetic residuals, the examiner did not address the cosmetic aspects of the vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements. Noting this, the Board in September 2016 directed that a new examination address whether, in pertinent part, the Veteran suffered from cosmetic residuals of her jaw surgery. As noted by the Board in the August 2017 remand, the VA examiner at a January 2017 VA examination failed to address the cosmetic aspects of the vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements. Additionally, the AOJ failed to address whether a separate compensable rating was warranted for the cosmetic residuals of the disability. Thus, again the claim was remanded in August 2017. A VA examination was provided in November 2017. However, the examiner did not address the evidence of record that discusses cosmetic residuals of the Veteran’s jaw surgery. To ensure compliance with the prior remands, another examination should be provided. Next, the Board has requested that any examination conducted on remand address any functional or physical disabilities as a result of the Veteran’s service-connected jaw disorder. The Veteran has variously described having recurrent headaches and earaches. See e.g. November 2011 videoconference hearing. Again, the November 2017 VA examination obtained during the most recent remand failed to address whether the Veteran suffered from residual earaches and headaches. Remand is thus again required to provide another examination. In a May 2018 statement, the Veteran reported that her reported headaches were increasing in intensity and frequency. The matter is REMANDED for the following action: 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 her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy, and advancements. The claims file must be made available to and pertinent documents therein be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire should be utilized. The examiner must provide a detailed description of any cosmetic aspects (residuals) of the Veteran’s jaw surgery. The examiner must also describe any other residuals other than TMJ pain, such as earaches and headaches, if present. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel