Citation Nr: 20004733 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 16-62 042 DATE: January 23, 2020 ORDER The petition to reopen the claim of service connection for residuals of mandible surgery is granted. REMANDED Entitlement to service connection for residuals from mandible surgery is remanded. FINDING OF FACT The Veteran did not appeal the August 1994 denial of his claim of service connection for residuals of jaw surgery, and new and material evidence was not received within one year of that decision. The record since includes new evidence pertinent to his claim. CONCLUSION OF LAW The August 1994 Regional Office denial of the claim for service connection for residuals of jaw surgery became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1973 to October 1993. The Veteran requested a hearing before the Board of Veterans’ Appeals. In an August 2019 correspondence, the Veteran was sent notification of his scheduled hearing. Nevertheless, he failed to appear for the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). 1. The petition to reopen the claim of service connection for residuals of mandible surgery The Veteran contends his claim of service connection for residuals of mandible surgery should be reopened and granted. Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Regional Office (RO) issued a rating decision in August 1994 denying the Veteran’s claim of service connection for residuals of jaw surgery. The Veteran was informed of his right to appeal but did not do so. Furthermore, new and material evidence was not received within one year of the rating decision. Therefore, the August 1994 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. At the time of the August 1994 decision, the RO found the surgery in service was remedial with the only residuals being anticipated residuals of such surgery. The evidence of record at that time included service treatment records, statements from the Veteran, and a VA examination. Since the 1994 decision, the record includes a new VA examination. The March 2015 examiner diagnosed paresthesia of the cranial nerve and explained that paresthesia is a well-known complication of the type of surgery the Veteran underwent: bilateral sagittal split osteotomy of the mandible. This evidence was not previously considered by agency decision makers and addresses an unestablished fact necessary to substantiate the claim. New and material evidence having been received, the claim for service connection for residuals of mandible surgery is reopened. REASONS FOR REMAND 1. Entitlement to service connection for residuals from surgery of the mandible is remanded. Service treatment records show the Veteran had surgery in January 1992 for bilateral sagittal split osteotomies with rigid fixation to correct asymmetry of the jaw and other complications. The Veteran reported, and the March 2015 examiner confirmed, he has cranial numbness, which is a well-known complication of his in-service surgery. VA regulations state that “[t]he usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment… will not be considered service connected, unless the disease or injury is otherwise aggravated by service.” 38 C.F.R. § 3.306(b)(1). The evidence shows the residuals the Veteran experienced are the usual effects of his surgical treatment. Therefore, the remaining question is whether the jaw condition, which necessitated the surgery, preexisted service. Service records prior to the surgery note he had multiple missing teeth and stage II perracipital fibrous dysplasia. Records, including from June 1990, note no history of jaw or dental trauma. The Veteran’s November 1972 entrance examination reflects no notations of mouth, dental, or jaw abnormality, but the RO found that this condition preexisted service as a constitutional or developmental abnormality. However, the record does not appear to include any medical finding of such. A medical opinion is needed to determine if the jaw condition diagnosed in service is classified as a congenital or developmental defect or clearly and unmistakable existed prior to service and was not aggravated by service. See 38 C.F.R. §§ 3.303(c); 3.304(b). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Then, obtain a medical opinion on the Veteran’s claim for residuals of mandible surgery. The medical expert should review the claims file and address the following: a. Was the Veteran’s jaw condition, including stage II perracipital fibrous dysplasia and facial asymmetry, treated by the January 1992 surgery, at least as likely as not a congenital or developmental defect? Please explain why or why not. b. Did the Veteran’s jaw condition treated by the January 1992 surgery clearly and unmistakably exist prior to service? c. Is there clear and unmistakable evidence that the jaw condition treated by the January 1992 surgery was NOT aggravated by service but the result of the natural progression of the disease? Consider all relevant lay and medical evidence. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.