Citation Nr: 21015866
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 17-27 864
DATE: March 18, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for residuals of a fractured jaw is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1964 to February 1966.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ).

In February 2019, the Board denied entitlement to a compensable initial rating for residuals of a fractured jaw.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In February 2020, the Court granted a Joint Motion for Remand (JMR), vacated the February 2019 Board decision and remanded the issue to the Board for action consistent with the terms of the JMR.  Accordingly, in August 2020, the Board remanded the claim for a compensable initial rating for residuals of a fractured jaw to provide the Veteran a VA examination.  

Pursuant to the August 2020 Board remand, the Veteran underwent VA examinations in September 2020, an October 2020 rating decision assigned an increased 10 percent rating for residuals of fractured jaw with temporomandibular joint (TMJ) dysfunction from April 25, 2016, the effective date of service connection, and a Supplemental Statement of the Case (SSOC) was issued the same day.  As this increased rating does not represent the maximum rating available for residuals of a fractured jaw, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993)

Following the October 2020 rating decision and SSOC and prior to certification and transfer to the Board, the Veteran underwent VA examinations in connection with residuals of his jaw fracture in November 2020.  However, he has not been furnished a SSOC that addresses these examination reports.  While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, VA does not currently interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as VA-generated evidence including VA examination reports.  38 U.S.C. § 7105(e).  As the newly added VA examination reports are not duplicative of evidence previously received and are relevant to the Veteran’s claim for an increased initial rating for his residuals of jaw fracture, the appeal as to this matter must be remanded to the AOJ for review and issuance of a SSOC.  38 C.F.R. §§ 19.31, 20.1304(c).

The matters are REMANDED for the following action:

1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file).

2. After the record is determined to be complete, readjudicate the claim of entitlement to an initial rating in excess of 10 percent for residuals of a fractured jaw.  If the claim remains denied or partially denied, the Veteran and his representative should be furnished a SSOC which includes consideration of the November 2020 VA examination reports and provided with the appropriate opportunity to respond.  Thereafter, the appeal must be returned to the Board for appellate review.

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kshama Hughes

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.