Citation Nr: 1806892 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-15 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for sensory neuropathy of the right facial nerve. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease with chondromalacia of the right knee. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1991 to October 2003 and from October 2010 to October 2011. He also had unverified periods of active duty, active duty for training, and/or inactive duty training between October 2003 and October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. During the pendency of this appeal, the Veteran was granted a compensable initial rating, to 10 percent, for his service-connected degenerative joint disease of the right knee. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased disability rating remains in appellate status. The Veteran has also been granted a temporary total rating for convalescence from April 11, 2017 until November 30, 2017. The Veteran requested and was scheduled for an October 2017 hearing before a Veterans Law Judge; however, in September 2017, he withdrew his hearing request. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service connection - Facial neuropathy The Veteran seeks service connection for sensory neuropathy of the right facial nerves. He asserts that as a result of dental surgery during service, he sustained a nerve injury resulting in permanent paralysis of the right side of his face. The Board notes first that according to service personnel records, the Veteran entered active military service in June 1991. The Veteran's DD-214 confirms approximately 19 years of active duty service. Service treatment records prior to 2004, however, are not of record. Moreover, the service treatment records found in the electronic file constitute only 10 pages and do not appear to be complete, given the Veteran's length of service, and the record provides no explanation for these incomplete service treatment records. As these records are incomplete, adjudication may not proceed at this time without further attempts to obtain the Veteran's full service treatment records. The agency of original jurisdiction (AOJ) is reminded that the Veteran had both active duty and reserve service; thus, all appropriate channels should be contacted to obtain his full service treatment records. Next, the RO denied the Veteran's service connection claim on the basis that no current disability had been demonstrated. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). On VA examination in August 2011, the Veteran gave a history of loss of feeling on the right side of his face following dental surgery in service. On objective examination neurological findings were within normal limits. The final diagnosis was of right facial nerve sensory neuropathy (cranial nerve VII). In a subsequent January 2012 clarification, the examiner stated the diagnosis was based on the Veteran's history alone. Also of record, however, is an October 2016 private dental treatment record which indicates slight nerve damage to the right mandibular nerve, allegedly following wisdom teeth extraction. This resulted in slight paraesthesia of the face, with the tongue curving to the right, according to the private report. The Board finds this evidence sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, a VA examination and medical opinion is necessary to address what, if any, chronic neurological disabilities of the facial nerves the Veteran has, and whether they are related to service. Increased rating - Right knee disability The Veteran also seeks an increased initial rating for service-connected degenerative joint disease of the right knee. Pursuant to this claim, he was afforded a recent VA orthopedic examination in February 2017, less than a year ago. Review of the record, however, indicates that in April 2017, he underwent surgical repair of the right knee, and has reported an increased level of disability since that time. Due to the material change in the service-connected right knee disability, as asserted by the Veteran, a VA new examination reflective of post-operative findings is needed. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Additionally, the examination must reflect the recent holding of the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held that 38 C.F.R. § 4.59 requires VA examinations for musculoskeletal disabilities to include joint testing for pain on both active and passive motion, in weight bearing and nonweight bearing. Accordingly, the case is REMANDED for the following action: 1. Obtain the full service treatment records for the Veteran for his entire service period. Service treatment records for the Veteran should, if necessary, be requested from multiple sources, and the outcome of such requests must be documented for the record. In the alternative, the Veteran should be notified that he may, on his own behalf, provide VA with copies of any service treatment records for his entire service period. 2. Schedule the Veteran for a VA neurological examination to determine if he has a current neurological disability of the facial nerves. If so, the examiner should provide an opinion whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neurological disability was incurred in, or is otherwise due to, his active service, to include any dental treatment, as reported by the Veteran. The claims file should be reviewed in conjunction with this request and the examination report should reflect that such a review occurred. Any examiner is advised that the Veteran is competent to report in-service injuries, his symptoms and history. Such reports must be specifically acknowledged and considered in formulating any opinions. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. 3. Schedule the Veteran for a VA orthopedic examination of the right knee. The examiner must describe in detail the current status of the service-connected right knee disability and all related manifestations. The examiner must test and record range of motion for the knee in active motion, passive motion, weight bearing, and nonweight bearing, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, any other musculoskeletal or other type of impairment resulting from the Veteran's right knee disability must be noted for the record. 4. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant 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. §§ 5109B, 7112 (2014). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).