Citation Nr: 0006481	
Decision Date: 03/10/00    Archive Date: 03/17/00

DOCKET NO.  97-25 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance 
Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for 
malunion of the mandible, the residuals of a fractured 
mandible, on appeal from the initial evaluation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Pitts, Associate Counsel


INTRODUCTION

The veteran had active service from May 1971 to May 1980.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a March 1996 rating decision of the 
Philadelphia, Pennsylvania Department of Veterans Affairs 
Regional Office and Insurance Center (RO).  The rating 
decision increased the evaluation for the residuals of a 
fractured mandible from noncompensable to 10 percent, 
assigning a separate evaluation for malunion of the mandible.  
The veteran submitted a notice of disagreement with that 
rating decision in December 1996.  In June 1997, the RO 
provided the veteran with a statement of the case.  The 
veteran filed his substantive appeal in July 1996.

A scheduled personal hearing was canceled by the veteran and 
not rescheduled.


REMAND

The claims file revealed that since service, the veteran has 
contended with a number of dental and jaw problems.  Service 
connection has been established only for malunion of the 
mandible, the residuals of a fractured mandible, and scars as 
the residuals of a fractured mandible.

The service medical records of the veteran indicated that 
during his basic training, he underwent oral surgery for the 
extraction of all mandibular and all but four maxillary 
teeth.  (Later in the report of a VA dental examination 
performed in November 1981, it was noted that the extractions 
resulted, and would be expected to have resulted, in the loss 
of the alveolar mandibular process.)  Subsequently, in August 
1971, the veteran had bilateral osteotomies performed to 
correct a mandibular prognathism.  He also received a 
complete mandibular and a partial maxillary denture.  He was 
hospitalized from August 1971 to October 1971.  (Post-service 
private and/or VA medical records noted that in 1975, the 
remaining maxillary teeth were removed and the veteran 
received a complete maxillary denture and that at that time, 
significant atrophy of the mandible was evident.)  In October 
1976, the veteran's mandible was fractured when another 
serviceman struck him in the jaw.  It was documented that 
immediately after sustaining the blow, the veteran had 
symptoms of pain, trismus, and decreased mandibular function.  
He was admitted to an Army hospital with a diagnosis of 
bilateral mandibular fractures and underwent surgery to 
accomplish a closed reduction of the fractures.  In addition, 
bilateral open reductions were performed on the mandibular 
fractures one week later.  In November 1976, the maxillary 
denture was removed and modified so that the veteran could 
function better with it.  The veteran was discharged from the 
hospital subsequently in November 1976.  It was stated in 
post-service private medical records, dated in October 1990, 
that in 1978, the malocclusion for which the veteran 
underwent surgery in 1971 had returned and that the veteran 
was advised to have more surgery to address the problem.  The 
proposed surgery consisted of another mandibular osteotomy 
along with an iliac bone graft to augment the lower jaw in 
order both to strengthen it and to permit the fabrication of 
better-fitting dentures.  It was indicated in these records 
that the veteran rejected further surgery on his jaw and only 
had new dentures made.

In May 1981, after his separation from service, the veteran 
filed a claim of entitlement to service connection for his 
jaw and dental conditions.  The claims file contained an 
August 1981 opinion of a private dentist consulted in 
connection with the claim.  The dentist stated that although 
his existing dentures were adequate, his dental history made 
it likely that the veteran would someday become unable to 
wear dentures at all.  The veteran underwent a VA dental 
examination in connection with his claim in November 1981.  
The examiner noted the presence of bilateral scars in the 
veteran's neck folds just below the angle of the mandible and 
stated that they had been caused by the previous surgeries.  
No tenderness, disfigurement, or other symptoms were noted in 
connection therewith.  The examiner identified a tendency of 
the upper and lower dentures to malocclude.  X-ray findings 
were said to be essentially normal, although moderate-to-
severe atrophy of the mandible was evident.  The examiner 
observed that the alveolar process in the mandible had 
deteriorated and opined that this loss of process had been 
caused not by the fracturing of the mandible or by poorly 
fitting dentures but by the extraction of all of the 
veteran's teeth.

The veteran's May 1981 claim was characterized as one for 
scars and was decided under Diagnostic Code 7805 of the 
Schedule for Rating Disabilities.  A November 1982 rating 
decision granted service connection for a fractured mandible 
and found that its residuals consisted of facial scars.  A 
noncompensable rating was assigned because the scars were 
found to be asymptomatic (that is, not tender or painful) and 
not disfiguring.  The rating decision specifically found that 
the veteran was not entitled to service connection for the 
loss of the veteran's mandibular and maxillary teeth and the 
loss of mandibular alveolar process.

The veteran was evaluated by an orthodontist, Dr. Leedy, in 
August 1990.  The dentist noted that the veteran had symptoms 
of "'tingling, burning'" paresthesia involving the mandible 
and that he took muscle relaxants daily.  The dentist found 
gross attrition of the denture teeth and severe alveolar, 
basal bone resorption (consisting of bone and ridge 
resorption with pendulous soft tissue) in the mandible, as 
well as severe mandibular prognathism.  

An oral surgeon, Dr. Pepper evaluated the veteran, in October 
1990.  The oral surgeon's report stated that the evaluation 
revealed an edentulous mouth with moderate maxillary atrophy 
and moderate-to-severe mandibular atrophy.  In consequence of 
the atrophy, the oral surgeon observed, the mandibular 
inferior alveolar canal was somewhat superficial.  The 
superficiality was revealed on x-rays to have occurred at 
both the fracture and the osteotomy sites.  Evaluation of 
range of motion, joint sounds, deviation, and pain during use 
indicated jaw functioning within the range of normal.  The 
oral surgeon also noted malocclusion and determined that this 
involved not only the fit of the dentures but also the 
skeletal structure of the jaws.  He observed that the veteran 
had facial pain and posited that the pain resulted primarily 
from the malocclusion and secondarily from temporomandibular 
joint pain (which the oral surgeon thought secondary to the 
malocclusion).  He opined without qualification that the 
burning sensation (paresthesia) of which the veteran 
complained was the result of injury to the alveolar inferior 
nerve at some point along the path of the alveolar canal.  
Dr. Pepper stated that he advised the veteran that he should 
have the surgery that had been advised in 1978 to augment the 
mandible and better align the two jaws with one another.

In November 1990, the veteran filed a claim for an increased 
rating for the residuals of his fractured mandible.  
Consideration was given in the evaluation of the claim both 
to the facial scars and to the temporomandibular problems, 
paresthesia, and related symptoms that the foregoing medical 
evidence had disclosed.  A December 1990 rating decision 
continued the previously assigned noncompensable evaluation. 
It was determined that the medical evidence of record showed 
that only the facial scars constituted residuals of the 
fractured mandible.  

While an appeal of this rating decision was pending, the 
report of an evaluation of the veteran conducted in February 
1991 by Dr. Leedy was incorporated into the claims file.  In 
addition to stating the same findings as were contained in 
his August 1990 evaluation, the dentist noted that the 
veteran had evinced temporomandibular joint pain upon 
palpation and concluded that the veteran suffered from severe 
bilateral temporomandibular derangement and dysfunction.  The 
dentist offered no explicit opinion as to the cause of the 
condition diagnosed.

In April 1991, the veteran testified at a personal hearing.  
He stated that despite his previous surgeries, he continued 
to have problems with his bite and the poor fit of his 
dentures.  He stated that he ate only soft foods.  He 
testified that he had a chronic burning sensation in his 
mouth and pain associated with his mouth and jaws.  A hearing 
officer's rating decision was issued in June 1991.  This 
decision reaffirmed the noncompensable evaluation of the 
December 1990 rating decision.  The hearing officer 
distinguished between the fractured mandible, for which 
service connection had been granted, and the tooth 
extractions performed during the veteran's basic training, 
for which service connection had not been granted.  The 
hearing officer found that other than asymptomatic scars, the 
veteran had no current disabling condition representing 
residuals of his service-connected mandibular fracture.

The veteran's current claim for an increased evaluation of 
the residuals of his mandibular fracture was filed in 
September 1995.  The veteran underwent another VA dental 
examination in November 1995 in connection with the claim.  
Prior to that, in July 1995, the veteran had a consultation 
with the same dentist who would perform the November 1995 
examination.  The July 1995 consultation report indicated 
that the veteran had temporomandibular joint pain, a burning 
sensation, and generalized discomfort of the maxillary and 
the mandibular arches.  The dentist noted the presence of 
three residual fixation wires from the 1976 surgery for the 
fractured mandible.  The dentist also observed that the 
veteran had a malocclusion and a mandibular prognathism and, 
despite the 1971 surgery, a mandibular resorption so severe 
that it was probably impinging on the mental nerves, perhaps 
bilaterally.  The dentist opined that the veteran's burning 
and oral discomfort were caused by ill-fitting dentures as 
well as this impingement on the mental nerves and that his 
temporomandibular joint pain was caused by ill-filling 
dentures and possibly also by the malocclusion of his jaws 
and the prior trauma of the fracturing of his mandible.  The 
dentist stated that he believed the veteran required new, 
better-fitting dentures and probably additional surgery to 
address his mandibular-maxillary relationship and his 
atrophied mandible.  The November 1995 examination report 
encompassed the same findings and conclusions.  Problems 
concerning the upper jaw were identified as well.  The 
diagnoses set out in the report were atrophied mandible and 
maxilla, temporomandibular dysfunction, and mental nerve 
impingement.  The dentist stated that the dental condition of 
the veteran entailed chronic pain and discomfort that 
affected his daily life, harmed his appearance, and made it 
difficult for him to chew.  The dentist observed, however, 
that the veteran had begun to receive denture modification 
and tissue conditioning in September 1995 and that his 
condition had improved as a result.  Specifically, the 
dentist noted that the veteran's joint pain, oral discomfort, 
and the burning sensation had diminished. 

As noted above, the RO issued a rating decision in March 1996 
establishing service connection for malunion of the mandible 
as a residual of the inservice fracture and assigned a 10 
percent evaluation.  The RO found that the problems detailed 
in the dental consultation/examination reports of July 1995 
and November 1995 were the direct result of the veteran's 
service-connected mandibular fracture and warranted an 
increased evaluation.  The evaluation was made under 
Diagnostic Code 9904 (pertaining to malunion of mandible).  
The rating sheet reflects that scars as the residuals of 
fracture of the mandible continued to be separately evaluated 
as noncompensable.

The claims file also contained the records of outpatient 
treatment received by the veteran at the Lebanon, 
Pennsylvania VA Medical Center (VAMC) in April 1996-September 
1996.  These records showed that in July 1996, the veteran 
received a neurological consultation.  The impression set 
forth in the consultation report was chronic jaw pain 
secondary to trauma with some neurological component.  The 
report of a December 1996 ENT consultation was also among the 
records.  The physician noted that the veteran had virtually 
no motion in his temporomandibular joints and evinced pain 
when those joints were palpated.  The physician stated an 
impression of temporomandibular joint fibrosis secondary to 
old trauma and observed that no specific treatment therefor 
could be recommended. 

The claims file documented that the veteran was examined by 
VA again in October 1997.  The examiner found extensive bone 
loss in the upper and lower jaws and hard palate.  The 
examiner observed that there had been no loss of function 
caused by loss of motion required for chewing.  However, the 
examiner did not measure the veteran's interincisal range of 
motion, stating that the question was "not applicable."  
The examiner also reported that the veteran had a continual 
burning sensation and pain in the body of the mandible that 
had not been relieved by medication or transcutaneous 
electrical nerve stimulation.  The examination resulted in a 
provisional diagnosis of neuroma or other neurological injury 
following the bilateral osteotomies that had been performed 
in 1971 to correct the mandibular prognathism or the 
mandibular fracture incurred in 1976.  An October 1997 
neurological consultation produced an impression of atypical 
facial pain, with otherwise normal neurological findings.  
The examiner indicated that an electromyograph (EMG) of the 
veteran's 5th nerve innervated muscles would be obtained.  

In January 1999, the veteran was again afforded a VA dental 
examination.  The dentist found that the veteran had 
bilateral temporomandibular joint tenderness upon palpation, 
crepitus of the right temporomandibular joint, and bilateral 
infraorbital soreness.  The examiner commented that the 
veteran had no functional impairment due to loss of motion of 
the mandible and no limitation of motion of the interincisal 
range. However, the examination report contained findings 
that the veteran had a 25 mm opening from the incisal edge of 
the upper denture to the incisal edge of the lower denture 
and that he had a 70 mm opening from the interior crest of 
the maxillary ridge to the interior crest of the mandibular 
ridge.  The diagnosis was myofacial pain syndrome.  The 
dentist commented the cause of the syndrome, whether organic 
or psychosomatic or both, could not be ascertained.  The 
dentist suggested that the dentures that the veteran was 
wearing currently may have been contributing to the 
temporomandibular joint pain and recommended a prosthodontics 
consultation.

The June 1997 statement of the case and a supplemental 
statement of the case issued to the veteran in August 1999 
addressed the medical evidence that had been introduced into 
the claims file while the appeal of the March 1996 rating 
decision was pending and continued the evaluation established 
therein.

In addition, a rating decision issued in February 1998 denied 
service connection for any neurological disability as 
secondary to the service-connected residuals of the 
mandibular fracture.

The veteran has alleged that the symptoms resulting from his 
service-connected mandibular fracture are more severe than 
contemplated by the rating assigned to them.  Thus, the 
veteran's claim of entitlement to a higher evaluation for his 
disability is well grounded, see Proscelle v. Derwinski, 2 
Vet. App. 629 (1992); 38 U.S.C.A. § 5107(a) (West 1991), and 
VA has a duty to assist the veteran with the development of 
evidence pertinent to his claim.  Id.; Peters v. Brown, 6 
Vet. App. 540 (1994).

In Fenderson v. West, 12 Vet. App. 119 (1999), the United 
States Court of Appeals for Veterans Claims (Court) 
recognized a distinction between a veteran's dissatisfaction 
with an initial rating assigned following a grant of service 
connection and a claim for an increased rating of a service-
connected disorder.  In the case of the assignment of an 
initial rating for a disability following an initial award of 
service connection for that disability (the circumstances of 
the present appeal), separate ratings can be assigned for 
separate periods of time based on the facts found - 
"staged" ratings.  The RO has not considered whether staged 
ratings are appropriate in this case and must do so.

The Board is of the opinion that for there to be an equitable 
disposition of the veteran's claim, further development of 
evidence must be undertaken.  The Board notes that there are 
a number of unresolved matters in the prior development of 
this claim.  First, the examiner who conducted the January 
1999 VA dental examination reported that the veteran had a 
25-mm interincisal opening.  Under Diagnostic Code 9905 
(pertaining to limited motion of the temporomandibular 
articulation), such a finding, without more, would warrant a 
20 percent evaluation for limited motion of the interincisal 
range.  See 38 C.F.R. § 4.150, Diagnostic Code 9905 (1999).  
However, the examiner also stated that no limitation of 
interincisal range of motion was found.  These two statements 
present a contradiction that must be resolved.  The VA 
examiner suggested that the dentures that the veteran was 
wearing currently may have been contributing to the 
temporomandibular joint pain, and he recommended a 
prosthodontics consultation.  However, no report concerning 
such a consultation was included in the claims file.

Also, the same examiner who conducted the January 1999 VA 
dental examination conducted the October 1997 dental 
examination and appeared to state in the report thereof that 
the degree of interincisal range of motion enjoyed by the 
veteran was "not applicable" to the examination.  However, 
it is fundamental to the rating of disabilities that all VA 
regulations which the face of the record indicates are 
potentially relevant to a claim for increased evaluation will 
be considered by the Board, whether explicitly raised in the 
record or not, unless their consideration would be arbitrary, 
capricious, or contrary to law.  Schafrath v. Derwinski, 1 
Vet. App. 589, 593 (1991).  Therefore the dental validity of 
the examiner's apparent observation that the veteran's 
interincisal range of motion was not relevant should be 
reviewed and, if valid, reconciled with the existence of 
Diagnostic Code 9905.

In addition, while the physician who performed the October 
1997 neurological consultation concerning the veteran stated 
that an electromyograph (EMG) of the veteran's 5th nerve 
innervated muscles would be obtained, no report of such a 
procedure, if conducted, was of record.  If such a report 
exists, it should be incorporated into the claims file.  

Furthermore, the Board is concerned that the exact condition 
or conditions (dental and/or jaw and/or neurological and/or 
other) for which the veteran has been granted service 
connection - - that is, residuals of a mandibular fracture- - 
be distinguished accurately and clearly in the record of this 
claim from conditions which are not characterized as 
residuals of the veteran's mandibular fracture.  Such has not 
been accomplished in the record, particularly the older 
clinical evidence, to date.  VA's duty encompasses obtaining 
an examination when, as here, an issue has been raised 
concerning the nature and/or etiology of the disorder which 
is the subject of the claim.  See Talley v. Brown, 6 Vet. 
App. 72 (1993).

Accordingly, the case is REMANDED to the RO for the following 
development:

1.  The RO should obtain all records of 
inpatient and/or outpatient treatment 
and/or examination received by the 
veteran for a dental and/or jaw condition 
at any VA facility from September 1994 to 
the present, excluding those currently in 
the claims file.  Attention should be 
paid to obtaining (i) any existing report 
of a electromyograph (EMG) of the 
veteran's 5th nerve innervated muscles, 
as the report of the October 1997 
neurological consultation stated that 
such a procedure would be conducted, and 
(ii) any existing report of a 
prosthodontics consultation, as such a 
consultation was recommended by the 
examiner who conducted the January 1999 
dental examination of the veteran.  Once 
obtained, all records should be 
associated with the claims file.

2.  The RO should ask the veteran to 
identify any sources of inpatient and/or 
outpatient treatment that he has received 
for a dental and/or jaw condition at any 
private facility or from any private 
dentist from September 1994 to the 
present and the approximate dates of such 
treatment.  A copy of this request should 
be placed in the claims file.  The RO 
then should obtain all pertinent records 
from the facilities and dentists named 
and associate those records with the 
claims file.  

3.  When the above-requested development 
has been completed, the RO should 
schedule the veteran for separate VA 
dental, neurological, and prosthodontics 
evaluations, to determine the current 
severity, nature, and etiology of his 
service-connected residuals of a 
mandibular fracture.  All indicated tests 
and studies should be performed.  The 
report of each examination should discuss 
precisely what complaints and findings 
(dental and/or jaw-related and/or 
neurological and/or other) represent 
residuals of a mandibular fracture and 
what complaints and findings (dental 
and/or jaw-related and/or neurological 
and/or other) represent conditions which 
are not so characterized.  The examiners 
should note that the veteran underwent 
extractions of all his teeth and 
bilateral osteotomies for a mandibular 
prognathism during service prior to 
fracturing his mandible and should 
distinguish any residuals from these 
procedures from those of the mandibular 
fracture.  Each examiner should comment 
specifically on the cause of the 
veteran's loss of mandibular alveolar 
process.   The claims file should be made 
available to the examiners for use in the 
study of the veteran's case.  Due written 
notice of the time and place of each 
examination should be given to the 
veteran, and a copy of the notification 
letter should be placed in the claims 
file.  

4.  Thereafter, the RO should 
readjudicate the claim of the veteran for 
an evaluation in excess of 10 percent for 
his service-connected mandibular 
malunion, fracture residuals.  The RO 
should consider whether staged ratings 
are appropriate in this case, in 
accordance with the decision of the Court 
discussed above.  If the determination of 
the claim is unfavorable to the veteran, 
the RO should furnish him and his 
representative with a supplemental 
statement of the case, in accordance with 
38 U.S.C.A. § 7105 and 38 C.F.R. § 19.31.  
The veteran and his representative should 
then be given an opportunity to respond.  

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, 108 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 remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	BARBARA B. COPELAND
	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).