BVA9505302 DOCKET NO. 91-23 421 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a jaw disorder, to include temporomandibular syndrome. 2. Entitlement to an increased (compensable) evaluation for intermittent diplopia due to orbital fracture of the left eye. 3. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. 4. Entitlement to an increased evaluation for tinea pedis of the feet, currently evaluated as 10 percent disabling. 5. Entitlement to a compensable evaluation for tinea pedis of the feet prior to October 31, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from July 1976 to October 1979 and from August 1981 to June 1982. The appeal arises from an April 1989 rating decision in which the Regional Office (RO) denied service connection for a jaw disorder, to include temporomandibular syndrome, and increased evaluations for intermittent diplopia due to orbital fracture of the left eye and tinea pedis of the feet. The RO also granted service connection for bilateral hearing loss and assigned a noncompensable evaluation for that disability. The veteran filed a notice of disagreement with the April 1989 rating decision in July 1989. In a rating decision dated in March 1991, the RO implemented a hearing officer's decision to assign a 10 percent evaluation for tinea pedis of the feet. The Board subsequently remanded the case in January 1992 and July 1992. The veteran has also raised the issue of entitlement to service connection for nerve damage of the left side of the face and tongue, as a result of oral surgery performed at a Department of Veterans Affairs (VA) facility in December 1980 under the provisions of 38 U.S.C.A. § 1151 (West 1991) and the RO has previously deferred consideration of that issue. As the stay on cases involving said issue has been lifted and inasmuch as the issue is not inextricably intertwined with the issues currently on appeal, the matter is referred to the RO for appropriate action. REMAND Review of the record discloses that the RO scheduled the veteran for an examination by an oral surgeon as requested in the July 1992 remand. However, the claims file does not include a copy of any letter which was sent to the veteran to notify him of such examination. Moreover, it appears that the veteran is incarcerated and may have been incarcerated when the examination was scheduled. Also, the veteran has submitted a report of an examination by an oral surgeon performed while he was incarcerated. However, it is not clear as to what, if any, medical records were available to that examiner in order to fully and completely assess the nature and etiology of any jaw disorder, to include temporomandibular syndrome. Under the circumstances, the veteran should again be scheduled for a VA examination by an oral surgeon. While the veteran is being scheduled for the above examination, he should also be scheduled for a VA ophthalmology examination to evaluate the severity of his service-connected intermittent diplopia due to orbital fracture of the left eye. Also, because it appears that the November 1992 supplemental statement of the case may not have been sent to the correct address, the RO should again send said supplemental statement of the case to the veteran. Additionally, the Board points out that the claim for entitlement to an increased evaluation for tinea pedis of the feet was not withdrawn from appeal after the hearing officer granted a 10 percent evaluation for that disability in March 1991. Furthermore, when the RO assigned the 10 percent evaluation for tinea pedis of the feet, an effective date of October 31, 1990 was assigned. The veteran filed the claim for entitlement to a compensable evaluation for his skin disorder on September 20, 1988 and the claim was originally denied in April 1989. Therefore, the issues of entitlement to an increased evaluation for tinea pedis of the feet, currently evaluated as 10 percent disabling, and entitlement to a compensable evaluation for tinea pedis of the feet prior to October 31, 1990, are currently on appeal. The issue of entitlement to a compensable evaluation for tinea pedis was initially developed for appeal. However, the hearing office resolved the issue in favor of the appellant. Recent decisions of the United States Court of Veterans Appeals dictate that VA resolve whether the disagreement has been resolved to his satisfaction. While the Board realizes that this case has been remanded twice before and regrets the delay in a final adjudication of the veteran's claim, to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should schedule the veteran for a VA examination by an oral surgeon. The examiner must be allowed the opportunity to review the veteran's claims file prior to the examination, especially the service medical records and records of the January 1985 oral surgery consultation, the March 1989 VA examination and the September 1993 oral surgery consultation. The examiner is requested to provide an opinion as to the etiology of any current jaw disability, to include temporomandibular joint syndrome. It is also requested the examiner provide the reasons for the opinion. 2. The RO should also schedule the veteran for a VA ophthalmology examination. Additionally, the examiner must be allowed the opportunity to review the veteran's claims file prior to the examination. The purpose of this examination is to evaluate the severity of the veteran's intermittent diplopia due to orbital fracture of the left eye pursuant to the provisions of 38 C.F.R. § 4.77 (1994). 3. Under separate letter, the regional office should determine whether the veteran is satisfied with the 10 percent evaluation for the tinea pedis. 4. In view of the veteran's testimony and the VA examination of 1989, the regional office should prepare a rating decision that explains the basis for not awarding a compensable evaluation for tinea pedis, effective the date of claim. 5. After the development requested above has been completed to the extent possible, the RO should again review the claims, including entitlement to a compensable evaluation for tinea pedis of the feet prior to October 31, 1990. If the veteran does not express his satisfaction with the 10 percent evaluation for tinea pedis, that issue should be added. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and his representative should be furnished another supplemental statement of the case, as well as a copy of the November 1992 supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).