BVA9420798 DOCKET NO. 93-04 073 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for post traumatic encephalopathy as a residual of brain surgery necessitated by a gunshot wound to the head, currently rated 30 percent disabling. 2. Entitlement to an increased evaluation for a depressed scar in the mid-parietal region, formerly rated as loss of skull, as a residual of brain surgery necessitated by a gunshot wound to the head, currently rated 10 percent disabling. ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active military service from December 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 1991 and November 1991 rating decisions of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO), which denied increased evaluations for post traumatic encephalopathy as a residual of brain surgery necessitated by a gunshot wound to the head and a depressed scar in the mid-parietal region, formerly rated as loss of skull, as a residual of brain surgery necessitated by a gunshot wound to the head. Review of the claims file also indicates that the appellant was previously represented by the Organization of Disabled American Veterans (DAV). Correspondence from the appellant, dated in March 1993, revealed that he no longer desired DAV representation, but would represent himself in this appeal. REMAND In his appeal to the Board, the appellant contends that the VA committed clear and unmistakable error in its February 1948 rating decision that reduced his former 50 percent combined disability rating for post traumatic encephalopathy and a depressed scar in the mid-parietal region, as residuals of brain surgery necessitated by a gunshot wound to the head, to a 40 percent combined disability rating, comprised of a 30 percent rating for post traumatic encephalopathy and a 10 percent rating for a depressed scar in the mid-parietal region. The Board notes that by rating decision in December 1945, the appellant's residuals of a gunshot wound to the head was rated as 50 percent disabling under Diagnostic Code 3210, and described as "Gunshot wound head, residuals of, recurrent headaches, severe." By rating decision in September 1946, the appellant's service- connected disability was described as "Epilepsy, Jacksonian type, residuals of gunshot wound, moderately severe, formerly rated as gunshot wound, residuals, recurrent headaches." The rating sheet shows this disorder as rated 40 percent disabling under Diagnostic Code 8902. In addition, the rating board in 1946 assigned a 10 percent disability rating under Diagnostic Code 5296 for "Skull, loss of part, area smaller than one square inch." The combined rating was 50 percent. In February 1948, the rating decision now claimed by the appellant to have been clearly and unmistakably erroneous, described the appellant's disorder as "Post traumatic encephalopathy, manifested by headaches, dizziness, ringing in ears, irritability, mild weakness left side of face, G.S.W., formerly rated as epilepsy. The rating board assigned a 30 percent disability evaluation. In addition, the rating board no longer assigned a rating for loss of part of the skull, but rated the disorder 10 percent disabling under Diagnostic Code 7804, the rating for a scar. The 1948 rating action resulted in a combined disability evaluation of 40 percent, a reduction from the previous combined rating of 50 percent. The appellant, as part of his substantive appeal, not only claims entitlement to a higher combined evaluation for all the residuals of his service-connected gunshot wound, but it appears that he claims error in the rating decision with respect to the basis upon which the rating board reclassified and reduced the evaluation from 40 percent to 30 percent and with respect to not awarding compensation for loss of a portion of the skull. In order to aver that prior determinations contain clear and unmistakable error, an appellant may not simply recite that incantation; he must plead the clear and unmistakable error claim with some degree of specificity and give persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). The Board finds that the appellant has stated a claim of clear and unmistakable error in the 1948 rating decision with the requisite degree of specificity. The Court has held that the Board must review all issues which are reasonably raised from a liberal reading of all documents submitted prior to the Board's decision. EF v. Derwinski, 1 Vet.App. 324,326 (1991). The issue of clear and unmistakable error calls into question the February 1948 rating decision disability evaluation. If error was found regarding the disability evaluation, it could affect the posture of the current claim of entitlement to an increased evaluation for post traumatic encephalopathy and a depressed scar in the mid-parietal region, as residuals of brain surgery necessitated by a gunshot wound to the head. The issue of clear and unmistakable error is, therefore, inextricably intertwined with the issues of entitlement to an increased evaluation for post traumatic encephalopathy and a depressed scar in the mid-parietal region. The VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has said that the VA's statutory duty to assist includes issues raised in all documents or oral testimony submitted prior to a Board decision, not just those derived from a liberal reading of the appellant's substantive appeal, "EF" v. Derwinski, 1 Vet.App. 324 (1991). In Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court ruled that where additional issues have been raised but not certified, which are "inextricably intertwined," appellate action prior to development by the originating agency of all intertwined issues would be premature. Accordingly, this case is REMANDED to the RO for the following action: The RO should develop and adjudicate the issue of whether there was clear and unmistakable error in the February 1948 rating decision in assigning a 30 percent evaluation for post traumatic encephalopathy as a residual of brain surgery necessitated by a gunshot wound to the head and a 10 percent evaluation for a depressed scar in the mid-parietal region, formerly rated as loss of skull. After the above requested action has been completed, the RO should review the appellant's claim. If any of the benefits sought on appeal remain denied, a supplemental statement of the case should be furnished to the appellant and he should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to ensure that the appellant receives his procedural due process rights. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. The appellant is not required to undertake any additional action until he receives further notification from the VA. BETTINA S. CALLAWAY 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) (1993).