Citation Nr: 0005234 Decision Date: 02/28/00 Archive Date: 09/08/00 DOCKET NO. 93-24 191A DATE FEB 28, 2000 On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to restoration of a 30 percent rating for service connected periodontitis, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from February 1963 to June 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. The December 1992 rating decision reduced a 30 percent rating evaluation which had been in effect for service connected periodontitis to zero percent. The veteran in his substantive appeal requested that the 30 percent be reinstated. Accordingly, the issue is as stated on the title page of this decision. REMAND Initially, the Board finds that the veteran's claim is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Pursuant to 5107(a), the Board is obligated to assist the veteran in the development of his claims. In this regard, this case was previously before the Board in November 1998. At that tine the case was Remanded to the RO for additional development of the evidence, to include for a VA examination by periodontist in order to determine the nature and severity of any oral and dental disability, including the service connected periodontitis. A review of the record reflects that the examination was scheduled at the VA medical facility in Biloxi apparently for February 1999. In February 1999 the veteran informed the Biloxi medical facility that he would not report and requested that the examination be conducted at the Montgomery medical facility or another facility. The veteran was issued a supplemental statement of the case in Mar,rh 1999 which includes 38 C.F.R. 3.655 (1999). 38 C.F.R. 3.655 provides that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action will be taken in accordance with paragraph (b). 2 - When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. 3.655(b) (1999). In this case, the Board is of the opinion that there may be extenuating circumstances as to the veteran's preference regarding the location of the VA examination. As such, the Board finds that the examination should be rescheduled. During the course of the appeal, the rating criteria for certain dental disorders was amended. The United States Court of Appeals for Veteran Claims has held, that, when the law or regulations change after a claim has been filed but before the appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308 (1991). Accordingly, the case is REMANDED for the following development: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to recent treatment for his oral disease. The RO should obtain all records, which are not on file. He should be informed that he has the opportunity to submit any additional evidence and arguments in support of his claims. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 2. The RO should schedule the veteran for a VA examination by periodontist at the VA medical facility in Montgomery, Alabama, if feasible, in order to determine the nature and severity of any oral and dental disability, including the service connected periodontitis. The claimsfolder and a copy of this Remand are to be furnished to the examiner in conjunction with the examination. In addition to x-rays, any other indicated - 3 - tests should be performed. Following the examination, it is requested that the examiner specify if there is loss of the condyloid process and/or loss of the maxilla, and, if yes, the degree of loss and the etiology. 3. The RO should again inform the veteran of the provisions set forth at 38 C.F.R. 3.655(b) regarding failure to report for scheduled VA examinations. 4. It is requested that the RO associate with the claims folder copies of the pertinent document concerning the scheduling of the requested examination. 5. Thereafter, the RO should readjudicate the issue in appellate status under the old and revised rating criteria per Karnas. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, which includes any pertinent revisions, and an opportunity to respond. The case should thereafter be returned to the Board for further review, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 11)8 Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been - 4 - remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ROBERT P. REGAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. 20.1100(b) (1999). 5 -