BVA9501041 DOCKET NO. 91-48 345 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than September 21, 1990, for the award of a 10 percent rating for residuals of a fractured mandible. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from April 1943 to October 1946. This appeal initially arose from a rating decision of December 1990, in which the Philadelphia, Pennsylvania, Regional Office (RO) established an effective date of September 21, 1990, for the award of a 10 percent rating for residuals of a fractured mandible. By means of a Remand decision dated in April 1993, the Board of Veterans' Appeals (Board) requested additional development of the record. The RO, in a rating decision of June 1994, confirmed and continued its prior determination that September 21, 1990, was the appropriate effective date for the assignment of that 10 percent rating. In a statement received by VA in August 1993, the veteran requested an increased rating for his fractured mandible residuals. This issue has not been developed for appellate review, and is referred to the RO for further action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it determined that September 21, 1990, was the appropriate effective date for the award of a 10 percent rating for fractured mandible residuals. He specifically alleges that he submitted private medical records to the Department of Veterans Affairs (VA) in March 1979, in conjunction with a request at that time for a compensable evaluation. In addition, his representative alleges that "medical evidence supporting increased compensation for the veteran's jaw condition" was available to VA in April 1982, when the veteran again requested a compensable evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence favors the assignment of July 2, 1990, as the appropriate effective date for the award of a 10 percent rating for residuals of a fractured mandible. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The application for a compensable evaluation for residuals of fractured mandible was received on September 21, 1990, and complaints of right jaw pain are shown within one year prior thereto, on July 2, 1990. CONCLUSION OF LAW An effective date of July 2, 1990, for the award of a 10 percent rating for residuals of a fractured mandible is warranted. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which have not been sought by VA or already associated with his claims folder are available; his allegations as to records that he contends were previously made available to VA are discussed below. The Board also notes, in this regard, that a review of the record compiled subsequent to its April 1993 Remand decision reveals repeated attempts by the RO to ensure that all available evidence was associated with the veteran's claims folder. Accordingly, the Board finds that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the veteran contends that he is entitled to an effective date earlier than September 21, 1990, for the award of a 10 percent rating for residuals of a fractured mandible. After a review of the record, it is the opinion of the Board that his contentions are supported by the evidence, and that an effective date of July 2, 1990, for the award of that 10 percent rating is appropriate. The basic facts are as follows. The Philadelphia RO, in a rating decision dated in December 1962, granted service connection for residuals of a fractured mandible, and assigned a noncompensable evaluation therefor. By means of a statement received on September 21, 1990, from the veteran's representative, a compensable rating was sought. Medical evidence dated subsequent to that date was thereafter received by VA. In a rating action dated in December 1990, the RO granted a 10 percent rating for fractured mandible residuals, effective as of September 21, 1990. Applicable regulatory provisions stipulate that an effective date for an increase in disability compensation shall be the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is receive within one year from such date otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2) (1993); see also 38 U.S.C.A. § 5110(b)(2) (West 1991). As previously noted, the veteran's application in the case at hand was received on September 21, 1990; since the medical evidence dated thereafter was deemed to demonstrate an increase in disability, the effective date assigned was the date that the claim was received, or September 21, 1990. However, the regulation provides for an effective date prior to the date that the claim for increased compensation was received, if evidence dated within one year prior to the date of receipt shows that a higher rating is warranted; in such instances, the date of such evidence, and not the date of receipt, is the appropriate effective date. In the instant case, the medical evidence shows that the veteran was accorded treatment in the year prior to September 21, 1990, for a variety of disabilities, to include on two occasions for possible jaw or mouth problems. A VA outpatient treatment record dated July 2, 1990, shows complaints by him of right jaw pain, and that his jaw "pops out" several times per week; on examination, according to this record, clicking of his right mandible, and "slight tenderness" of the right side, was discerned. A VA outpatient record dated August 27, 1990, notes that he was being seen for followup treatment "after evaluation...on 8/14/90. [Veteran] not complaining of pain[,] however, concerned about his cheek-biting." Under VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993) (Schedule), a compensable evaluation is appropriate for residuals of a fractured mandible if such residuals include, at the least, moderate nonunion of the mandible (Diagnostic Code 9903 of the Schedule), malunion of the mandible exemplified by moderate mandibular displacement (Diagnostic Code 9904), or any definite limitation of temporomandibular articulation (Diagnostic Code 9905). In addition, regulations provide for the award of "at least the minimum compensable rating" (in this case, 10 percent) for painful motion of a joint; see 38 C.F.R. § 4.59 (1993). With regard to the evidence dated within one year prior to September 21, 1990, the VA treatment record dated August 27, 1990, does not indicate that any of the criteria identified above were manifested at that time; in fact, this record specifically notes that the veteran did not complain of pain. However, the July 2, 1990, VA treatment record, as previously noted, shows that there was mandibular tenderness and clicking, and that he complained of right jaw pain. While the findings presented therein do not demonstrate a level of mandibular impairment sufficient to warrant a compensable evaluation under the diagnostic criteria of the Schedule, such findings do, however, provide a basis for the award of a 10 percent rating in accordance with the provisions of 38 C.F.R. § 4.59 (1993). In view of the foregoing, therefore, it is the opinion of the Board that the evidence is in favor of an effective date of July 2, 1990, for the award of a 10 percent rating for residuals of a fractured mandible. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1993). We also note that the VA clinical records constitute informal claims for increase. 38 C.F.R. § 3.157 (1993). The Board acknowledges that the veteran has alleged that he submitted a private medical evidence in March 1979, in conjunction with a claim at that time for a compensable evaluation. Of record is a VA Form 21-4138 that was received in March 1979, in response to which the RO requested that he submit evidence indicating that his disability had increased in severity. A review of the veteran's claims folder does not reveal that he responded to that request, and the Board notes that no private medical record dated in 1979 was thereafter associated with the claims folder. The Board also notes that any request that the dentist identified by the veteran furnish the evidence in question at this time serves no probative value; the question that must be resolved is not whether the veteran was treated in 1979 or earlier by that dentist, but when evidence thereof had been associated with his claims folder. Any attempt by VA to obtain such evidence at this time would be irrelevant in ascertaining whether an earlier effective date in this case is warranted. In regard to the 1979 claim, the claim was abandoned after he failed to respond to the request for additional information. 38 C.F.R. § 3.158. Furthermore, absent some evidence of an increase in disability, there was no duty to schedule the veteran for a VA examination. 38 C.F.R. § 3.326. The Board also acknowledges that another VA Form 21-4138 was received from the veteran in March 1982, and that the RO again requested that he furnish VA with evidence that his disability had increased in severity. Apparently in response thereto, a statement from a private dentist, also dated in March 1982, was thereafter received. In this statement, the private dentist indicated that he had treated the veteran in 1981 for periodontal occlusion and severe occlusal wearing of his dentures; this dentist also indicated that, "[i]n checking his dental history, he had complaints of chewing problems and soreness in the jaw, which often occurs with loss in vertical." (Emphasis added.) The VA recognized that the 1982 VA Form 21-4138 constituted an informal claim, and took appropriate action by informing the veteran of the need to submit appropriate evidence. The statement from the private dentist was nonresponsive to the issue in question and did not constitute another informal claim for increase requiring any action or development on the part of the VA. The statement from the dentist did not identify the benefit sought and did not serve as a basis for rating the service- connected condition. We again hold that there was abandonment of the 1982 claim and that neither a rating decision nor further action were required. Contrary to the contentions of the veteran's representative, the private statement does not indicate that the veteran's mandible fracture residuals had increased in severity, or that "medical evidence supporting increased compensation for the veteran's jaw condition" was available. Rather, it merely indicates that the veteran had problems with his dentures, and that chewing problems and jaw soreness were related thereto. It does not indicate that his chewing difficulties, jaw soreness or denture problems were related to his fractured mandible residuals, or that they could be deemed to be such residuals. The Board does not find that information was not adequately developed by the RO in 1982, inasmuch as the evidence of record at that time does not indicate that the veteran's fractured mandible residuals had increased in severity, or that evidence that would demonstrate that they had increased was available. Concomitantly, the Board finds that the evidence of record at that time does not provide a basis for finding that an effective date prior to July 2, 1990, for the award of a 10 percent rating for residuals of a fractured mandible is appropriate. ORDER An effective date of July 2, 1990, for the award of a 10 percent rating for residuals of fractured mandible is granted, subject to the laws and regulations governing the disbursement of monetary benefits. 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.