BVA9506600 DOCKET NO. 93-15 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for postoperative dislocation of the distal left clavicle with tender scar, currently rated 20 percent disabling. 2. Entitlement to an increased evaluation for bilateral fracture of the mandible, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from October 1951 to September 1953. This appeal arises from a May 1992 rating decision of the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO). In that decision, the RO denied the veteran's claim of entitlement to increased evaluations for service connected postoperative dislocation of the distal left clavicle with tender scar, and bilateral fracture of the mandible, and his claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities. In a statement received at the RO in July 1992, the veteran withdrew his notice of disagreement with the denial of a total rating, and thus, no further appellate consideration will be accorded this issue by the Board of Veterans' Appeals (Board) at this time. The Board notes that the issue of service connection for a disability of the cervical spine as well as the issues of service connection for ulcer disease and cancer have been raised. These issues are not currently in appellate status and are referred to the RO for appropriate action. REMAND The record on appeal reflects that the veteran was last afforded a VA examination for rating purposes in September 1992. At that time, the RO requested that the examination include an orthopedic evaluation of the particular joints/bones at issue as well as an evaluation of the skin to evaluate service-connected residual scarring. The examination request appears to have been made relative to both the veteran's service-connected left clavicle disability as well as to his bilateral fracture of the mandible. However, it does not appear that the veteran's service-connected bilateral fracture of the mandible was examined at the time. The Board observes that evaluations of the degree of disability relating to malunion or nonunion of the mandible pursuant to the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Codes 9903 and 9904, are dependent upon the degree of motion and relative loss of masticatory function. Under Diagnostic Code 9905, a minimum 10 percent evaluation is assigned for any definite limitation, interfering with mastication or speech. As the veteran has not been provided a VA dental examination for rating purposes in numerous years, the record contains no current medical evidence relating to any functional limitation as it relates to the degree of loss masticatory function or interference with speech. As such, the Board is unable to evaluate the veteran's claim that the residuals of the service- connected bilateral fracture of the mandible have increased in severity. The Board also observes that the veteran's accredited representative has raised a question about the adequacy of the September 1992 VA examination, specifically noting whether the reported ranges of motion of the left shoulder are passive or active. The Board notes that the examiner reported that it was his impression that the veteran was not exerting even moderate effort in carrying out the ranges of motion of the left shoulder. As such, a medical opinion as to any functional impairment of the left shoulder, particularly that due to pain, is imperative in evaluating the veteran's left shoulder disability. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The RO should ensure that the veteran is afforded a complete VA examination which addresses the matters described above. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The Board notes further that the veteran reported that he has received medical treatment for the disabilities at issue in this case at VA medical facilities in Gainesville, Orlando, and Tampa. The record reflects that the most recent treatment, however, has been received by the veteran at the VA Satellite Outpatient Clinic in Orlando. The record also indicates that the veteran has received recent medical treatment from a private health care provider. Although it appears that the RO has requested medical records from Orlando Regional Medical Center, available records have not been associated with the assembled records. The RO should ensure that all relevant treatment records are obtained and associated with the record on appeal. Although the veteran has withdrawn his notice of disagreement as to the issue of a total rating, he has reported that he has recently been awarded Social Security Administration benefits based, in part, on the severity of the service-connected disabilities at issue in this case. As the medical records relied upon in this determination may be relevant to the current appeal, the RO should ensure that those records are procured and added to the assembled records. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received for the disabilities at issue since July 1992, and furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies (not already in the claims folder) should then be requested, to include treatment records from the Orlando VA Satellite Outpatient Clinic dated from July 1992 through the present, and Orlando Regional Medical Center dated from October 1991 through the present. All records obtained should be added to the claims folder. 2. The RO should request a copy of Social Security Administration decision which reportedly granted disability benefits to the veteran and obtain legible copies of the medical records upon which this decision was based. This evidence should be associated with the veteran's claims folder. 3. The veteran should be afforded VA orthopedic and dental examinations to determine the nature and severity of his postoperative dislocation of the distal left clavicle with tender scar, and bilateral fracture of the mandible. The scope of the examination should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings at the time of examination. All pertinent complaints or symptoms having a medical cause should be covered by a definite diagnosis. The examinations should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures should be accomplished. The report should summarize all significant positive findings. The orthopedic examiner should report passive and active ranges of motion of the left shoulder. The dental examiner is requested to express a medical opinion regarding the degree of motion and relative loss of masticatory function or interference with speech, if any, related to the residuals of the bilateral fracture of the mandible. All disability should be evaluated in relation to its history, with emphasis upon the limitation of activity, to include employability, and any functional loss due to pain, imposed by the disorder in light of the whole recorded history. The claims folder should be made available to the examiners prior to the examination. 4. The RO should readjudicate the veteran's claim. The rating should reflect consideration of the provisions of 38 C.F.R. § 3.321(b)(1). If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. EUGENE A.O'NEILL 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).