Citation Nr: 21064846
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 18-04 564
DATE: October 21, 2021

REMANDED

Entitlement to an initial compensable rating for residuals of a broken jaw with fractured teeth is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1969 to June 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2016 by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of the hearing is of record.

1. Entitlement to an increased rating for residuals of a broken jaw.

First, during his hearing before the undersigned the Veteran stated that he is currently receiving treatment for his residuals of a broken jaw though the VA community care program, and further that he underwent surgery in 2017 at a VA Medical Center. However, the most recent records associated with the file, VA or otherwise, are from 2016. As the Veteran has indicated that there are outstanding records that may be relevant to his claim, a remand is necessary so that attempts may be made to obtain those records. 38 C.F.R. § 3.159(c)(1), (2).

Second, during his hearing the Veteran reported new symptoms associated with his residuals of a broken jaw. Specifically, the Veteran reported that he experiences tingling and numbness in his jaw and that his jaw forces his tongue back in his mouth which obstructs his breathing during sleep, which necessitates the use of a CPAP machine. As the Veteran has reported new or worsening symptoms since his last dental examination, a remand is necessary for a new examination to determine the severity of the current disability, including identifying all residual effects of the broken jaw. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007).

The matters are REMANDED for the following action:

1. Make appropriate efforts to obtain all outstanding treatment records. Attention is invited to the Veteran's July 2021 testimony stating that he received VA treatment at the VA Medical Center in Seattle and at Fort Townsend through the VA Community Care Program.

Should any records require a release, the Veteran should be provided with the necessary forms to do so. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e).

2. Schedule the Veteran for a VA examination to determine the nature and severity of his broken jaw. All residuals of the Veteran's broken jaw should be identified.

The examiner should further opine as to whether the Veteran's residuals of a broken jaw at least as likely as not (a fifty percent probability or greater) require the use of a CPAP machine.

In answering the above, attention is invited to the Veteran's July 2021 testimony that his broken jaw forces his tongue back in his mouth, which obstructs his breathing during sleep and necessitates the use of a CPAP machine.

A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.