Citation Nr: 21020939 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-07 616 DATE: April 8, 2021 REMANDED Entitlement to an initial compensable disability rating for residuals of a mandible fracture is remanded. REASONS FOR REMAND The Veteran had active service from November 1976 to May 1977 and from June 1979 to January 1980. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (by videoconference). A hearing was then scheduled but, unfortunately, had to be rescheduled several times due to restrictions caused by the COVID-19 pandemic in 2020. The Veteran did not appear for the videoconference hearing most recently rescheduled in February 2021. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s residuals of a fractured mandible are currently rated as noncompensable under DC 9904 as malunion of the mandible. Under DC 9904, a 0 percent (noncompensable) rating is provided for malunion of the mandible with slight displacement. A 10 percent rating is provided for malunion of the mandible with moderate displacement. A 20 percent rating is provided for malunion of the mandible with severe displacement. A Note to DC 9904 states that the rating is dependent upon the degree of motion and relative loss of masticatory function. On VA examination in October 2014, the Veteran did no complain of jaw pain, could open his mouth to at least 50mm with no tempo mandibular joint discomfort. There was no clinical evidence found of mal-union or other pathology from the in service event. In the substantive appeal received in February 2017, the Veteran reported that he experienced jawbone locking when eating, talking, or when yawning. He also noted that he cannot eat certain foods such as apples. The Board finds that these assertions are evidence of a worsening of the symptoms of the Veteran’s jaw disability. As the Note for DC 9904 indicates that the rating for a disability involving malunion of the mandible is dependent upon the degree of motion and loss of masticatory function, it is important to obtain an accurate evaluation of the current nature and severity of the Veteran’s service-connected jaw condition. As such, a remand is necessary to offer him a current evaluation to determine the current nature and severity of his jaw disability. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any outstanding assessments of the Veteran’s jaw condition. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations to procure such records. Any and all attempts to obtain records should be recorded in the claims file. 2. Then, accord the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected residuals of a mandible fracture. The claims file should be reviewed by the examiner including any newly obtained medical records, and such review should be noted in the examination report. The results of all pertinent testing should be reported, and an explanation for any testing that was unable or unnecessary to be completed should be provided. All pathology associated with this service-connected disability should be discussed. If the Veteran’s symptoms have worsened, the examiner is asked to opine as to how far back in time the Veteran’s worsened symptoms can be attributed, according to his report and available medical records. A complete rationale must be offered for all opinions set forth in the report. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.