BVA9504910 DOCKET NO. 93-14 691 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right mandible. 3. Entitlement to an increased (compensable) evaluation for residuals of excision of a pilonidal cyst. 4. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right first toe. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from June 1938 to June 1948 and from August 1948 to December 1958. This appeal arises from a January 1993 rating decision of the Department of Veterans Affairs (VA), Seattle, Washington, Regional Office (RO). In that decision, the RO granted service connection for traumatic arthritis and residuals of a fracture of the left index, middle, and ring fingers, and assigned a 10 percent disability rating; service connection was also granted for the residuals of a fracture of the right mandible; residuals following excision of a pilonidal cyst; and residuals of a fracture of the right first toe, all assigned separate noncompensable evaluations. Service connection for bilateral hearing loss was denied. The Board of Veterans' Appeals (Board) notes that the veteran's accredited representative, in written argument submitted to the Board dated in August 1993, has raised the issue of an increased evaluation for the veteran's service-connected disabilities of the left index, middle, and ring fingers. That issue is not currently in appellate status and is referred to the RO for appropriate action. REMAND The veteran's accredited representative in this case has requested that the case be referred back to the RO for additional development. It is asserted by the representative that the VA examination which was afforded the veteran in July 1992 is inadequate for rating purposes. With respect to the issue of an increased evaluation for the veteran's service-connected residuals of fracture of the right mandible, it is asserted on the veteran's behalf that although related objective findings of popping, crepitus, and pain warrant a compensable evaluation, the radiologist did recommend further studies which were not accomplished. The veteran, in his substantive appeal, stated that his mandible was fractured on the right and left, that the mandible is now not properly aligned, that he is unable to chew properly, and that the wire in his jaw causes headaches. In this regard, the Board notes that on VA examination of the veteran's jaw in July 1992, the examiner reported that examination of the temporomandibular joints bilaterally produced popping and crepitus; he also reported that the veteran was able to open his mouth to 4.5 centimeters incisor to incisor. However, the radiologist indicated that the panorex of the mandible that was taken was insufficient for evaluation of the temporomandibular joint area and was optimal only for a portion of the mandible. Supplemental conventional radiographic projections were recommended as well as clinical correlation. Additional radiographic studies do not appear to have been accomplished. 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. The July 1992 VA examiner offered no medical opinion regarding any functional limitation as it relates to the degree of loss masticatory function or interference with speech. Further examination is deemed necessary in order for the Board to evaluate the residuals of the fracture of the right mandible. It is also asserted on the veteran's behalf that additional examination is necessary to determine the residuals of excision of the veteran's pilonidal cyst as it is asserted that the July 1992 examination is inadequate for purposes of rating this disability. The Board notes that a review of the July 1992 VA examination report reflects that the veteran reported that there had been no recurrence of the pilonidal cyst which had been removed in the 1940's. Presumably, based on this information, no examination of the surgical area appears to have been made. Therefore, it is not possible for the Board to discern whether the veteran does, in fact, have any residuals of the excision of the pilonidal cyst. Moreover, in a recent statement, the veteran has indicated that he was having problems with impairment of sphincter control which he related to the excision of the pilonidal cyst. The veteran's representative further argues that a medical determination should be made as to whether this or any other neurological impairment is due to this service-connected disability or to a nonservice-connected back disability. Additional VA examination in this regard is necessary. Service connection is also in effect for the residuals a fracture of the right first toe. It is asserted, by and on behalf of the veteran, that current symptomatology includes arthritis as well as deformity of the toe. However, it appears that the July 1992 VA examination did not encompass an examination of this service- connected 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) (1993). 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. 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 schedule the veteran for examinations in the appropriate specialities to assess the nature, severity, and manifestations of all residuals of fracture of the right mandible, residuals of excision of a pilonidal cyst, and residuals of a fracture of the right first toe that may be present. All related complaints should be investigated and those which have a medical cause should be covered by a definite diagnosis. All indicated tests should be conducted and any additional indicated special examinations should be accomplished to include x-rays of the right first toe as well as supplemental conventional radiographic projections of the temporomandibular joint area. The report should summarize all significant positive findings, with emphasis upon the limitation of activity, to include interference with employability, and any functional loss due to pain, imposed by the disorders. The appropriate examiner must 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 fracture of the right mandible. The appropriate examiner should distinguish any neurological impairment relating to the excision of the pilonidal cyst from that related to a nonservice-connected back disability, describe the extent and nature of any postoperative scar of the excision of the pilonidal cyst, and express a medical opinion as to the etiology of any impairment of sphincter control. 2. Thereafter, the RO should readjudicate the veteran's claim. The rating should reflect consideration of the applicability 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, citation of the provisions of 38 C.F.R. §§ 3.321(b)(1), 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. A decision on the issue of service connection for hearing loss is deferred pending completion of the additional developments requested pursuant to this REMAND. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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) (1993).