BVA9404107 DOCKET NO. 92-12 432 ) DATE ) ) ) THE ISSUES 1. Entitlement to a temporary total rating for a period of hospitalization and for convalescence. 2. To be clarified. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, Ann Wright and Becky Duchesneau ATTORNEY FOR THE BOARD William L. Pine, Associate Counsel INTRODUCTION The appellant most recently served on active duty from November 1985 to May 1989, with over three years prior service. In September 1991, the appellant submitted a statement to the Department of Veterans Affairs Regional Office (VARO) in Des Moines, Iowa, requesting development of a claim for a temporary total rating under 38 C.F.R. §§ 4.29 and 4.30 (1993) and requesting re-evaluation of the level of severity of his service-connected seizures. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision on those claims; the schedular disability rating for a seizure disorder was confirmed and continued at 20 percent and a temporary total rating was denied. VARO notified the appellant of the decision and received the notice of disagreement in December 1991. The notice of disagreement expressed disagreement with the denial of a temporary total rating for the period from September 15, 1991, to January 1, 1992. VARO issued a statement of the case and received the substantive appeal in January 1992. The statement of the case addressed only the issue of an increased rating. The substantive appeal reiterated the intent to appeal the denial of temporary total compensation benefits and disavowed any intent to appeal from the denial of an increased disability rating, or that he had even raised such a claim. There was a hearing on appeal in March 1992, at which the hearing officer stated the issue as a claim for an increased [schedular] rating; the appellant, in essence, voiced assent and added that a temporary total rating was also at issue. The hearing officer issued a decision in May 1992 as to the increased rating issue only. A supplemental statement of the case (SSOC) issued in June 1992 addressed both the schedular and temporary total rating issues. In a June 1992 response to the SSOC, the appellant stated that he understood the laws and regulations and agreed with the summary. The Board received the appeal in July 1992. The appellant's representative in this matter, Veterans of Foreign Wars of the United States, provided a brief in January 1993. REMAND We find it unclear as to whether the appellant intends to appeal from the denial of an increased schedular rating for service-connected post-concussion seizures. The statement of September 1991 unambiguously raises the claim; the notice of disagreement explicitly objects to the denial of a temporary total rating and is silent as to the denial of an increase in schedular rating; the substantive appeal is adamant in disclaiming an intent to appeal the schedular rating; the appellant's statement at the hearing and in response to the SSOC are ambiguous. Whereas appellate review of the merits of the increased schedular rating claim requires additional evidentiary development, the Board is of the opinion that the appellant's intent to prosecute such a claim should first be clarified. The service medical records are obviously incomplete. There is a vague history of a 1987 motor vehicle accident (MVA), without primary documentation of record. The separation medical history referred to a June 1987 MVA in Wurzburg, West Germany, with 12 days of hospitalization at Wurzburg Army Hospital. The appellant reported in his August 1989 VA examination that he had a one car accident in which he hit a house, losing consciousness; his head went through a windshield, by his December 5, 1991, account. Clinical records of that hospitalization and a contemporaneous accident report should be available and should be obtained. The appellant also has reported prior periods of service in a National Archives Form 13075 of August 1989. Apparently, no attempt was made to obtain earlier service medical records. They should be obtained. There are references in the record to VA inpatient or outpatient diagnostic work-ups that are not of record. Notwithstanding citation in other records to the results of those procedures, we feel the actual records should be obtained. Specifically, a January 1992 statement by the Director of the Iowa City VA Medical Center (VAMC) references diagnostic studies of November 1991, with follow-up in December 1991; VAMC Iowa City outpatient notes of March 1992 refer to transfer to University of Iowa Hospitals and Clinics for additional electroencephalographic (EEG) studies; a clinical note from VAMC Des Moines of June 19, 1991, raised a question of psychiatric involvement in syncopal episodes, recommending psychiatric evaluation. Evidence "pertinent" to a claim is not limited to that strictly "for or against" a claim. Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). We feel that medical records bearing on whether there is a psychological component to the appellant's seizure disorder may provide a fuller picture of the disability for rating purposes. There are no records in the claims folder from VAMC Iowa City for November or December 1991. An unattributed EEG report of March 28, 1992, is of record; we cannot tell if it is from the University of Iowa, and, if so, if it represents complete records from that referral. As regards the claim for a temporary total disability rating, we note that the rating decision of September 1991 reviewed evidence predating September 15, 1991, and the appellant seeks the rating for the period from September 15, 1991, to January 1, 1992. The hearing officer did not rule on that issue and there has been no rating decision as to entitlement to the benefit for that time period. The SSOC of June 1992 is written as if there has been a rating decision as to those dates. VARO should execute a rating decision as to those dates. Accordingly, the case is REMANDED for the following: 1. Clarify with the appellant whether he is appealing the denial of a schedular rating greater than 20 percent for his service- connected seizures; request that he explicitly withdraw the appeal if he does not wish to pursue it. 2. Request complete service medical records for all periods of service indicated on the form NA 13075, with attachments, of August 3, 1989. Specifically request clinical records pertaining to a June 1987 motor vehicle accident from Wurzburg Army Hospital, Wurzburg, West Germany, see VA Manual M21-1, part III, 4.02(b), 4.04(c) (Nov. 8, 1991), and any available accident reports. 3. Obtain any available outpatient or inpatient records as follows: (1) from VAMC Des Moines, reports of psychiatric treatment from June 1991 to the present and all other treatment from March 1992 to the present; (2) from VAMC Iowa City, reports of treatment during November and December 1991 and from March 28, 1992 to the present; (3) reports of electrodiagnostic testing done at University of Iowa Hospitals and Clinics from March 25 to 28, 1992, (identified as such on the documents). 4. Readjudicate any claims not explicitly withdrawn; as to the claim for a temporary total rating for hospitalization or for convalescence, specifically consider the period from September 15, 1991, to January 1, 1992. If any claim not withdrawn remains denied, provide the appellant with an appropriate supplemental statement of the case, indicating that he has a reasonable time to respond, and return the case to the Board for further appellate consideration, if appropriate. This REMAND is to develop evidence and to afford the appellant due process of law. Appellate review of all certified issues is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR. 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).