Citation Nr: 22018518 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 13-25 381 DATE: March 29, 2022 REMANDED Entitlement to a compensable disability rating for residuals of a right mandible fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision which, in pertinent part, denied a compensable disability rating for residuals of a right mandible fracture. In May 2015, the Veteran testified before a Veterans Law Judge (VLJ) who has now been appointed as the Board's Chairman. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member, but she may participate in a proceeding assigned to a panel. The law also provides a veteran the option of additional hearing(s) before the additional two VLJs assigned to the panel. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In March 2018, the Veteran elected to have an additional hearing before the two other VLJs on this panel. However, in February 2022, he withdrew his request and asked that the Board make its decision on his previous testimony and the evidence of record. Therefore, the Board may proceed without an additional hearing. Entitlement to a compensable disability rating for residuals of a right mandible fracture is remanded. The Veteran contends that a compensable disability rating is warranted for residuals of a right mandible fracture. Specifically, he contends that his jaw glides incorrectly due to the fracture, resulting in extensive damage to his teeth and the need for extensive dental reconstruction in the 1990s at VA. He also contends that he has pain, popping, and cracking in his jaw, and that his jaw aches and tires as he eats. The Veteran was afforded VA dental and temporomandibular joint (TMJ) examinations in September 2017. Although the examiner indicated that the Veteran's TMJ was normal without evidence of pain or clicking, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation regarding the Veteran's disability after repeated use over time, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. It is also not clear whether the examiner considered the Veteran's lay statements pertaining to popping and cracking in his jaw, and that his jaw aches and tires as he eats. Finally, the examiner indicated it would be only conjecture to determine why the Veteran needed extensive dental reconstruction in the 1990s. The Board notes that VA dental treatment records from the 1990s have not been associated with the record. As such, the Board finds a remand is warranted to obtain outstanding VA dental treatment records from 1990 to 2000 and for a new VA examination to assess the severity of any residuals from a right mandible fracture. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA dental treatment records from 1990 to 2000. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of any residuals from his service-connected right mandible fracture. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include consideration of the Veteran's lay statements pertaining to popping and cracking in his jaw, and that his jaw aches and tires as he eats. In so doing, the examiner must test the Veteran's active motion and passive motion. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, after observed repetitive use, and repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals J. Nichols Veterans Law Judge Board of Veterans' Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.