BVA9504738 DOCKET NO. 92-07 356 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased schedular disability evaluation for service-connected post-operative residuals of a bilateral temporomandibular condyles (TMJ) replacement, currently rated as 20 percent disabling. 2. Entitlement to the restoration of a 60 percent schedular disability rating for the service-connected post-operative residuals of a thyroid resection, to include bilateral peripheral neuropathy of the lower extremities, paralysis of the face, elevated uric acid levels, and hypertension, effective March 1, 1992. 3. Entitlement to the restoration of a total rating based upon the veteran's individual unemployability caused by his service- connected disabilities, effective March 1, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to December 1971, and from January 1974 to August 1988. This appeal arises from a rating action dated in May 1989 by the Albuquerque, New Mexico, Regional Office (RO), which awarded service connection for the post-operative residuals of a thyroid resection, and assigned a 60 percent disability rating, and awarded service connection for a temporomandibular joint (TMJ) disability, assigning a schedular evaluation of 10 percent for this disability, and denied service connection for a psychiatric disorder. In April 1993, the Board of Veterans' Appeals (Board) issued a decision denying entitlement to increased schedular disability ratings for these disabilities, and denying service connection for the psychiatric disorder. Upon appeal, however, the United States Court of Veterans Appeals (Court), vacated the Board's decision regarding the issues of increased ratings for residuals of a thyroid resection and TMJ, and remanded for compliance with the instructions as incorporated from the Joint Motion for Remand. [citation redacted]. The case was returned to the Board in November 1994. After review, it is our judgment that the record is not yet ready for consideration of entitlement to the benefits sought on appeal. REMAND The veteran appeals the denial of a rating in excess of 20 percent for his post-operative TMJ residuals. Pursuant to 38 C.F.R. Part 4, Diagnostic Code 9905 (1994), the applicable diagnostic code for this disability, schedular ratings are based upon precise measurements of jaw motion. The Board based its denial of an increased rating for this condition based upon a February 1989 Department of Veterans Affairs (VA) dental examination which found that the veteran's mouth had a vertical opening of "1 1/2 fingers" with limited lateral motion of the mandible and poor centric occlusion." In light of these findings, the Board concluded that "[c]learly he does not shown the limitation of the mandibular joint that would warrant a rating increase." A measurement of "1 1/2 fingers," however, does not provide an accurate and precise measurement of jaw motion which is contemplated by the criteria noted in the diagnostic codes. Moreover, these rating criteria were subject to recent changes which require even more precise measurements of both the inter- incisal range and the lateral excursion of the jaw in order to determine the appropriate schedular evaluation for TMJ and its residuals. See 38 C.F.R. Part 4, Diagnostic Code 9905 (Feb. 25, 1994). We believe, therefore, that additional medical evidence, including a VA dental examination, should be performed so that accurate measurements of the veteran's jaw function may be made and properly evaluated. In its May 1989 rating action, the RO also assigned a 60 percent schedular disability rating, effective from August 10, 1988, for the veteran's service-connected residuals of a thyroid resection, to include peripheral neuropathy of the lower extremities, paralysis of the face, elevated uric acid levels, and hypertension, which the veteran appealed. In August 1991, however, the RO proposed to reduce this schedular rating from 60 percent to 10 percent, and this reduction was effectuated in December 1991. The 10 percent schedular disability rating took effect as of March 1, 1992. In its April 1993 decision, however, the Board considered only whether the veteran was entitled to a rating in excess of 10 percent for his service-connected residuals of a thyroid resection, and did not address the propriety of the RO's rating reduction. Upon review, the Court determined that the RO had not considered whether a reduction was proper based upon its review of the entire disability history, nor had it determined that the improvement in the veteran's disability "actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." See Brown v. Brown, 5 Vet.App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (1994). Thus the RO must readjudicate whether a reduction in benefits from 60 percent to 10 percent was warranted, in light of these considerations. To this end, we also believe that additional VA examination should be performed in order to determine the current status of the veteran's residuals disabilities resulting from his thyroid resection. We also note that both of the veteran's service-connected disabilities involve the post-operative residuals of surgical reconstruction or replacement. Thus any residual scarring or other manifestations associated with these surgical procedures must taken into account when determining the level of disability resulting from these service-connected residuals. Esteban v. Brown, 6 Vet.App. 259 (1994). In a rating action dated in October 1990, the RO also granted the veteran's claim for entitlement to a total rating for compensation purposes as resulting from his individual unemployability, effective from February 22, 1990. This grant was based upon the prior award of a 60 percent schedular evaluation for residuals of thyroid resection and the 20 percent evaluation for the residuals of TMJ, for a combined schedular disability rating of 70 percent. This total rating was terminated, effective from March 1, 1992, upon the RO's reduction of the schedular rating for the residuals of a thyroid resection from 60 to 10 percent. In its April 1993 decision, the Board referred the issue of entitlement to a restoration of these benefits to the RO for further development and action as deemed appropriate. It is noted, however, that this issue is inextricably intertwined with the issue of restoration of the 60 percent schedular rating for the residuals of a thyroid resection, inasmuch as this reduction was the impetus for the RO's termination of the total rating based upon individual unemployability. Thus the RO must undertake development and adjudication of this appealed issue in conjunction with consideration on the issue of entitlement to a restoration of a 60 percent evaluation for the residuals of a thyroid resection. Furthermore, should the RO determine that its reduction in the rating for the residuals of a thyroid resection was improper, it must then consider whether entitlement to a rating in excess of 60 percent is warranted, inasmuch as this was the issue raised by the appellant in his original appeal. We also note that in March 1972, the RO denied entitlement to service connection for a back disorder. Inasmuch as an appeal of this action was not perfected, this decision is final, and this claim may only be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). In its notification to the veteran of the May 1989 rating action, however, the RO stated that "service connection is not established for: spinal disc condition." Despite this statement, it does not appear that any adjudication of service connection for a back disorder was actually undertaken during the course of the May 1989 rating action, nor is it clear from the evidence submitted by the veteran that he sought to reopen his claim for this condition. His notice of disagreement with the May 1989 decision does not provide any additional clarity inasmuch as it was submitted "regarding the grant of Service Connected Disabilities." In light of this confusion, this issue is referred to the RO for further action as deemed appropriate. In light of the foregoing, this case is REMANDED for the following: 1. The RO should contact the veteran and request him to submit any additional evidence he wishes to proffer in support of his claims. This evidence may include, but is not limited to, medical reports, lay statements, or written argument. If the veteran submits information concerning private or VA medical treatment for his claimed disabilities, the RO should attempt to secure copies of records for such treatment. All evidence obtained should thereafter be associated with the claims folder. 2. The RO should arrange for the veteran to be examined by an oral surgeon to determine the current status of his post- operative residuals of his temporomandibular joint condition (TMJ) with a bilateral temporomandibular condyles replacement. The examining physician should be specifically requested to precisely measure, in millimeters, the veteran's current inter-incisal range and range of lateral excursion. The nature of any residual post-operative scarring and underlying impairment of function resulting therefrom should also be noted. This examination is to be conducted in accordance with the VA Physicians Guide to Disability Evaluation Examinations (1985), and the claims folder and a copy of this remand are to be made available to the examiner for review prior to the examination. 3. The RO should arrange for the veteran to be examined by specialists in internal medicine and neurology to determine the current status of his post-operative residuals of a thyroid resection. The specialist in internal medicine should determine the nature and extent of any current disability resulting from the claimed residuals of hypertension and excessive uric acid levels, and should be instructed to specifically discuss whether any diagnosed hypertension or excessive uric acid levels are the result of the veteran's thyroid condition. The examiner should also determine the nature of any residual scarring resulting from the veteran's thyroid surgery, including the extent of disfigurement and underlying limitation of function or other manifestations attributable to these scars. The neurologist should determine the nature and extent of any current disability resulting from the claimed residuals of bilateral peripheral neuropathy of the lower extremities and paralysis of the face, and should also specifically discuss whether any diagnosed neurological abnormalities are post-operative residuals attributable to the veteran's thyroid resection. Each examiner should perform all appropriate tests, and each examination should be conducted in accordance with the VA Physicians Guide to Disability Evaluation Examinations (1985). The claims folder and a copy of this Remand should be provided to each examiner prior to conducting his or her examination of the veteran. 4. Once this evidentiary development is completed, the RO must readjudicate the issues on appeal as instructed in the text of this Remand, to include determinations on the propriety of the reduction of the schedular rating from 60 percent to 10 percent for the service-connected post- operative residuals of a thyroid resection, and the propriety of the termination of the veteran's total rating based upon his individual unemployability. We also note that all rating evaluations with regard to the veteran's service-connected disabilities must also take in to account the impairment resulting from the veteran's residual surgical scars. If the decision rendered on readjudication of these claims remains adverse to the appellant, he and his representative should be furnished with a supplemental statement of the case outlining all pertinent evidence and regulations relied upon, and should be given a reasonable opportunity to reply. The claims folder should then be returned to the Board for appropriate appellate consideration. This remand is to comply both with our duty to assist the veteran and our duty to afford him due process in the adjudication of his claims. The Board intimates no opinion as to the ultimate outcome of this case, and the appellant need take no action until otherwise notified. JACK W. BLASINGAME 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).