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March 21, 2009

CUE, liberal reading, Chisem v. Principi, No. 90-1540

Filed under: CUE; Chisem; Liberal reading; — veteranclaims @ 6:13 pm

See Chisem v. Principi, __ Vet.App. __, __ , No. 90-1540, slip op. at 12 (U.S. Vet.App. Feb. 9, 1993) (requirement of liberal reading of all documents submitted prior to BVA decision extends to determining whether CUE claim was raised to BVA (citing Azurin v. Derwinski, 2 Vet.App. 489 (1992) (BVA must review all issues which are reasonably raised from a liberal reading of appellant’s substantive appeal ), and, where appellant raises CUE before BVA, BVA must review the issue).
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U.S. Court of Appeals for Veterans Claims
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. 90-1540
CHISEM.540
Search Terms: CHISEM UNITED STATES COURT OF VETERANS APPEALS

No. 90-1540

Aldosie Previous DocumentChisemNext Hit, Appellant,

v.

Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appellee’s Motion for Reconsideration

(Decided February 9, 1993 )

William G. Smith was on the brief for appellant.

James A. Endicott, General Counsel, Barry M. Tapp, Assistant General
Counsel, Andrew J. Mullen, Deputy Assistant General Counsel, and
Jacqueline E. Monroe were on the pleadings for appellee.

Before NEBEKER, Chief Judge, and FARLEY and MANKIN, Associate Judges.

MANKIN, Associate Judge: On October 7, 1992, the Court issued an
opinion in this case which reversed and remanded the November 20, 1990,
Board of Veterans’ Appeals (BVA or Board) decision with instructions that
the Board adjudicate the issue of obvious error raised by appellant. The
Secretary of Veterans Affairs (Secretary) filed a motion for
reconsideration of the October 7, 1992, opinion. The Secretary contends
that there is no authority to direct the BVA to adjudicate the issue of
obvious error; “the authority to review the record for ‘obvious error’
resides exclusively in the sound discretion of the Board itself.” Motion
for Reconsideration at 6-7. The Court grants the Secretary’s motion for
reconsideration of the October 7, 1992, decision in this case, vacates
that decision, and issues this decision in its place.
Appellant, Aldosie Previous HitChisemNext Hit, seeks reversal of a November 19, 1990, BVA
decision that denied entitlement to service connection for a psychiatric
disorder. The Secretary filed
a motion for remand. The Court has jurisdiction pursuant to 38 U.S.C.A.
ù 7252(a) (West 1991). The Court denies the Secretary’s motion, and the
November 21, 1991, BVA decision is reversed and the matter is remanded
pursuant to 38 U.S.C.A. ù 7261(a)(4) (West 1991). The Secretary is
directed to grant service connection for the veteran’s psychiatric
condition and to take the appropriate steps to ensure that he receives a
prompt rating consistent with this opinion.

I. Background
Aldosie Previous HitChisemNext Hit served on active duty in the U.S. Army from November 4,
1942, to September 6, 1943. At the time of induction, he was found to be
physically and mentally qualified. While in service, he was treated for
hemorrhoids, and had a hemorrhoidectomy on December 24, 1942. It appears
that medical malpractice was committed when the veteran was given an oral
dose of silver nitrate instead of a laxative during his recovery from the
hemorrhoid surgery. Throughout his service medical records, the veteran
is described as having a mental deficiency (mental age 9 years, 6 months)
and an intelligence quota (I.Q.) of 59%. One service medical record (
undated) notes that: “One B unknown thinks he may be crazy,” and that the
veteran complained of weakness and nervousness, which it says the veteran
attributed to “excessive intercourse over a period of the last 6 years.”
A physical examination conducted on July 7, 1943 noted “weakness-
nervousness” and a working diagnosis or impression of “[p]sychoneurosis.”
A service record of July 7, 1943, in reference to the veteran, stated: “
Soldier is either a true psychoneurotic or a plenty cagey coon. Believe a
psychiatrist should decide which. I find no organic disease.” In July
and August 1943, it was recommended that the veteran be discharged from
duty for mental deficiency. The “Reason and authority for separation [was
for] Convenience of the Government.”
The veteran first applied for compensation and pension with the
Veterans’ Administration (now Department of Veterans Affairs) (VA) on June
26, 1947. The VA Regional Office (VARO) in Seattle, Washington, issued a
rating decision on October 10, 1947, granting service connection for the
hemorrhoidectomy scar rated as 0% disabling and
denying service connection for mental deficiency as it was not a
disability within the meaning of the law.
In an attempt to reopen his claim for service connection in February
1952, he submitted several affidavits, including doctors’, fellow
servicemen’s, and his own, in support of his claim. Again on February 29,
1952, the VARO denied service connection for a nervous or mental
disability. On August 5, 1952, and September 11, 1952, Dr. Myron Kass
sent letters to the VA expressing his diagnosis of the veteran as
psychoneurosis-mixed type with elements of neurasthenic features and
depression. Dr. Kass also noted that this illness began and was
aggravated during the veteran’s service. Apparently, the veteran appealed
to the BVA, because it issued a decision denying service connection for a
neuropsychiatric disorder on February 19, 1953. The BVA found that a “
medical study of the basic disorder is not considered necessary for a
proper disposition of the issue under consideration.” The 1953 BVA
decision denied the veteran’s appeal because the “condition” existed prior
to service and was not a disease or disability within the meaning of the
law.
On July 15, 1963, the veteran attempted to reopen his claim by filing
a statement which explained his ailments and frustrations in the Army and
with the VA. He also supplied a list of all the doctors who had treated
him since service. The VA sent a letter to the veteran on July 29, 1963,
explaining that he needed new evidence to reopen his claim. Dr. Arthur P.
O’Leary sent a letter verifying treatment of the veteran at intervals from
1950 through 1953 for neurogenic complaints. Dr. William Mattson, Jr.,
provided a current examination in 1963 diagnosing “anxiety state” and
verified that the veteran had seen his father, Dr. William Mattson, Sr.,
for anxiety from March 7, 1947, to December 15, 1947. The VA provided the
veteran with a medical examination for the first time on April 16, 1965.
The special medical examination noted that in describing his symptoms, the
veteran “seem[ed] to be honest and truthful and not attempting to
exaggerate.”
On May 24, 1979, Dr. Julius Mosley, Jr. sent a letter to the VA
stating that he had been treating the veteran for various enumerated
ailments and stated:
Mr. Previous HitChisemNext Hit apparently was classified while in the military
service as haveing [sic] “Mental deficiency; mental age 9 6/12
years, I.Q. 59% epti.” My contact with the patient and
physical examinations lead me to reject the aforementioned
declaration
as invalid. It is probably better adjudicate [sic] his so-
called “Mental deficiency” to prejudice or to the lack of
education, but not to any intellectual impediment.
On March 10, 1990, the veteran filed a claim to reopen his previously
denied claim based upon newly discovered evidence, namely an extensive 13-
page psychiatric report from Dr. Roland S. Jefferson, dated February 15,
1990. The rating decision of March 23, 1990, concluded: “The opinion of
Dr. Jefferson is not considered new or material but only an expression of
what he feels based upon the vet’s comments & his review of copies of
evidence furnished him.” A personal hearing was held on July 2, 1990,
subsequent to appellant’s Notice of Disagreement and request for a hearing
on April 14, 1990. At this hearing, the veteran submitted a service
medical record from November 5, 1942, indicating that he was being
reclassified from general duty to light duty by reason of his anxiety
state. The hearing officer concluded that the evidence submitted
subsequent to the 1953 Board decision was not considered new and material,
and that the prior rating decision was “not found to be in error.” In his
appeal to the BVA, the veteran alleged “obvious error” in the 1953 BVA
decision and racial prejudice. The November 19, 1990, BVA decision denied
service connection for a psychiatric disorder as the evidence received
subsequent to the February 1953 BVA decision was new, but did not alter
the basis upon which the prior decision was predicated. Aldosie Previous HitChisemNext Hit,
BVA 90-39702, at 6 (Nov. 19, 1990).

II. Analysis
Appellant argues that he was the victim of extreme and blatant racial
prejudice while in the Armed Forces of the United States and that this
racism and a misdiagnosis in service have been ignored by the VA in
denying service connection for a psychiatric disorder. The Secretary
filed a motion for remand addressing most of the issues raised by
appellant’s brief. Appellant, however, filed in opposition to the
Secretary’s motion and requests that the Court reverse the BVA decision.

A.
On February 19, 1953, the BVA denied service connection for a
neuropsychiatric disorder. That decision became a final decision and is
not subject to review by this Court. 38 U.S.C.A. ù 7105 (West 1991); 38
C.F.R. ùù 3.104(a), 20.302, 20.1104 (1992). The exception to the rule
of finality is 38 U.S.C.A. ù 5108 (West 1991) which states:
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of the
claim.
Both the Secretary and appellant agree that in its November 19, 1990,
decision the BVA failed to perform the “two-step analysis” required by
section 5108 and Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
Additionally, the Secretary, in his motion for remand, correctly noted:
The decision, however, contains no specific discussion of other
medical and lay evidence received subsequent to the BVA’s 1953
decision, including statements and hearing testimony provided
by the veteran. The BVA’s cursory discussion and evaluation of
a portion of the evidence submitted in support of the veteran’s
claim appears to fall far short of statutory and judicial
directives with respect to consideration of reopened claims, as
well as the requirement that a BVA decision contain sufficient
reasons or bases for the denial of a veteran’s claim. See 38
U.S.C. ù 7104(d)(1) (formerly ù 4004(d)(1)).
Motion of Appellee at 4. The Secretary further noted “that the [BVA]
decision contains no genuine discussion of the applicability of the
benefit of the doubt/reasonable doubt principle, contained at 38 U.S.C. ù
7107(b) (formerly ù 3007(b)) and 38 C.F.R. ù 3.102, although the record
contains some evidence submitted in support of the veteran’s claim.”
Motion of Appellee at 7.
In addition to recognizing the Board’s failure to consider all the
evidence of record, this portion of the Secretary’s motion essentially
conceded the error as argued by appellant in his brief: that the BVA
failed to consider the sworn testimony given by appellant at a personal
hearing as evidence and to assess its credibility; that the BVA decision
failed to give a full and complete explanation of its decision as
required by Gilbert v. Derwinski,
1 Vet.App. 49, 53 (1990), and 38 U.S.C.A. ù 7104(d)(1) (West 1991); and
that the Board failed to apply the reasonable doubt standard correctly to
his case. The Court agrees with the parties and holds that the BVA
committed error.
B.
The issue of whether “new and material” evidence was submitted is a
legal question that this Court reviews de novo, without deference to the
BVA’s findings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). New
evidence is “not that which is merely cumulative of other evidence on the
record.” Id. Material evidence “is relevant and probative of the issue
at hand.” Id. The Court finds as a matter of law that appellant
submitted new and material evidence, as there was “a reasonable
possibility that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome.” Colvin, 1 Vet.App
at 174.
On the foregoing analysis, therefore, the case would normally be
remanded to the Board for a proper evaluation of all the evidence
submitted, for consideration of appellant’s testimony as evidence and an
assessment of its credibility, and for a clear statement of its decision,
with articulation of the reasons or bases therefor. The decision of the
BVA need not be remanded for correction of the aforementioned error,
however, as reversal is the appropriate remedy in this case, as is
concluded in part D, below. See Schafrath v. Derwinski, 1 Vet.App. 589,
593 (1991); Hanson v. Derwinski, 1 Vet.App. 512 (1991); Willis v.
Derwinski, 1 Vet.App. 66 (1991).
C.
Service connection is to be granted to a veteran who served “in the
active military, naval, or air service, during a period of war” and
developed a “disability resulting from personal injury suffered or disease
contracted in the line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in line of duty.” 38 U.S.C.A. ù 1110 (
West 1991). “Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service.” 38 C.F.R.
ù 3.303(d) (1992).
When reviewing factual determinations made by the BVA, the Court will “
hold unlawful and set aside such finding if the finding is clearly
erroneous.” 38 U.S.C.A. ù 7261(a)(4); Gilbert, 1 Vet.App. at 52. A
factual finding “is `clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Brannon v.
Derwinski, 1 Vet.App. 314, 317 (1990); Spencer v. Derwinski, 1 Vet.App.
125, 126-27 (1991); Gilbert, 1 Vet.App. at 52-53. In determining whether
a finding is clearly erroneous, “this Court is not permitted to substitute
its judgment for that of the BVA on issues of material fact; if there is a
`plausible’ basis in the record for the factual determinations of the BVA
, . . . we cannot overturn them.” Gilbert, 1 Vet.App. at 53; see
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). The Court
must now determine, under the standard announced by the Supreme Court and
in Gilbert, whether the BVA’s factual findings are clearly erroneous.
D.
All of the evidence in the record clearly supports the veteran’s
claim for a service- connected psychiatric disorder. The Court finds no “
plausible basis” in the record for the Board’s factual conclusions, and
thus, the decision must be reversed. The evidence submitted prior to the
1953 Board decision included the following evidence. Aside from the
racial comment in one medical record, the service medical records indicate
the onset of a psychiatric disorder: a “psychoneurosis”; “Provisional
diagnosis- 1. Psychoneurosis”; “a true psychoneurotic”; “One unknown B
thinks he may be crazy”; and “nervousness.” Private medical records were
submitted to show treatment for a mental condition shortly after service.
Dr. George Kunz treated the veteran “through all of 1948 and early 1949
for a variety of nervous symptoms.” Dr. Arthur P. O’Leary administered “
treatment for a nervous disorder since 11-26-51″ and noted that he would
need “treatment to continue for an indefinite period of time.” Since
August 1952, Dr. Myron Kass diagnosed appellant with psychoneurosis, mixed
type with neurasthenic features and depression and found that the
veteran’s history “definitely establishes the onset of this illness while
in the service . . . [T]he service was a marked aggravating factor in the
onset of his illness.” The veteran also
submitted statements in his own behalf and from fellow servicemen who
indicated that the veteran suffered from a nervous condition in service.
It is apparent from the Board’s noncompliance with Manio that this
evidence was not weighed with evidence submitted since the 1953 decision.
After the Board’s 1953 decision, appellant submitted several written
statements on his behalf and sworn testimony at a hearing, in addition to
compelling medical evidence to support his claim. A newly discovered
service medical record, dated November 1942, revealed that the veteran was
reclassified from general duty to light duty for “reasons of anxiety state
.” Dr. Arthur P. O’Leary submitted a statement stating that he treated
the veteran for neurogenic complaints at intervals from 1950 through 1953.
In 1963, Dr. William Mattson, Jr. noted that his father had treated the
veteran for anxiety from March 1947 to December 1947 and that his own
diagnostic impression of the veteran was that he was in “anxiety state.”
In 1979, Dr. Mosley noted that the in-service diagnosis of “mental
deficiency” could be attributed to prejudice or lack of education. The
most comprehensive and persuasive evidence was Dr. Jefferson’s 13-page
medical evaluation.
After a meticulous review of all the evidence of record, Dr.
Jefferson noted and explained the misdiagnosis of “mental deficiency”:
The patient was labeled as mentally deficient by military
authorities. Nothing could be further from the truth. Mr.
Previous HitChisemNext Hit was never mentally deficient. He certainly lacked a
formal education but this poor fund of knowledge has nothing to
do with the diagnosis of mental retardation. . . . Instead,
what the military completely missed in it’s [sic] assessment of
Mr. Previous HitChisemNext Hit, much of which no doubt because of their own racism,
was the fact that his behavior changes that surfaced so soon
after his induction represented what we now call a “somatiform
disorder”. His total preoccupation with his “organs” is at the
core of this disorder and grew out of several things, all of
which were precipitated by his military service.
(emphasis in original). Dr. Jefferson also noted: “Because he was deemed
to be mentally retarded, even once discharged from the Army, he was not
able to get the established medical community to take his complaints
seriously. . . . [I]t becomes clear that the U.S. Army bears the brunt of
responsibility for this man’s emotional disorder. . . .”
The BVA dismissed the evidence submitted since the 1953 Board
decision as “cumulative and repetitive in nature. It merely shows that
the veteran continues to suffer from psychiatric symptoms which did not
originate in service.” Previous HitChisemNext Hit, BVA 90-39702, at 5. While the BVA
acknowledged that Dr. Jefferson’s evaluation “specifically shows that his
report was based on a review of the records on file” and that “[h]is
report . . . suggest[ed] another classification to be applied to the
veteran’s nervous symptoms,” the Board found, “however, [the records] do
not in and of themselves show incurrence or aggravation of a chronic
psychiatric disability in service.” Previous HitChisemNext Hit, BVA 90-39702, at 5. The
Board similarly discarded the newly discovered service medical record by
stating:
An anxiety state, in and of itself, would not be consistent
with onset or aggravation of a psychiatric disability for VA
compensation purposes. It would merely be reflective of an
acute nervous symptom which resolved without residual
disability as no chronic psychiatric disorder was demonstrated
in service.
Previous HitChisemNext Hit, BVA 90-39702, at 5.
There is not a scintilla of documentation to support either of the
BVA’s conclusions which repudiate germane evidence supporting appellant’s
claim. This Court has “approved of the use of a medical expert to offer
an opinion as to whether a veteran’s current disability had its origins
in the service.” Hanson, 1 Vet.App. at 516 (embracing the holding of
Willis, 1 Vet.App. 66). The Court has further held that “the conclusion
of an examining psychiatrist is a medical conclusion, one which the BVA
is not free to ignore or disregard.” Hanson, 1 Vet.App. at 516 (quoting
Willis, 1 Vet.App. at 70). “Nor may the Board substitute its own medical
judgment.” Willis, 1 Vet.App. at 70 (citing Colvin v. Derwinski, 1 Vet.
App. at 175 (Board cannot provide its own medical judgment; rather, it
must consider only independent medical evidence)). In this case, the
Board could have obtained an additional medical expert to review the
records and offer an opinion as to the origins of the veteran’s current
disability. Colvin, 1 Vet.App. at 175. In fact, the Board is required to
remand a claim to the VARO for further development where it finds the
record inadequate. 38 C.F.R. ù 19.9 (1992). See Hanson, 1 Vet.App. at
517; Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). Here, the Board
failed to do so.
Both Dr. Mosley’s and Dr. Jefferson’s expert opinions linking the
veteran’s current psychiatric disorders to his military service stand
unrebutted and are supported by the evidence of record. Therefore, all of
the evidence establishes under 38 C.F.R. ù 3.303(d) that the veteran’s
psychiatric disorder was incurred in service. On this record, the Court
is left with the “definite and firm conviction that a mistake has been
committed.” United States Gypsum Co., 333 U.S. at 395. We hold,
pursuant to 38 U.S.C.A. ù 7261(a)(4), that the Board was clearly
erroneous in concluding: “The evidence received subsequent to the
February 1953 Board of Veterans Appeals decision is new, but does not
alter the basis upon which the prior decision was predicated.” Previous HitChisemNext Document,
BVA 90-39702, at 6. The only conclusion that can be drawn from the record
is that the veteran’s psychiatric disorder was present and misdiagnosed
during service.
E.
Appellant urges the Court to “adopt the `Treating Physician Rule’ and
require the VA to give the opinions of treating physicians greater weight
in evaluating claims made by veterans.” Br. of Appellant at 18. The
Secretary gave no response to this argument. As the BVA gave no weight to
the records of the veteran’s treating physicians, this case must be
reversed as clearly erroneous since there is no plausible basis for the
BVA’s factual conclusions. The Court has reviewed all the evidence in
favor of the veteran’s claim of service connection, including the records
of the veteran’s treating physicians.
This Court has consistently held: “The conclusion of the examining VA
psychiatrist is a medical conclusion, one which the BVA is not free to
ignore or disregard.” Willis, 1 Vet.App. at 70. The Court extended this
principle to the medical conclusion of any examining psychiatrist.
Gleicher v. Derwinski, 2 Vet.App. 26, 29 (1991); Hanson, 1 Vet.App at 516;
Caldwell v. Derwinski, 1 Vet.App. 466, 470 (1991). Recently, the Court
expanded this principle to the opinions of treating physicians in general.
Smith v. Derwinski, 2 Vet.App. 137, 141 (1992) (“the BVA is not free to
ignore the opinion of a treating physician.”). The Court declines,
however, to adopt a rule that gives the opinions of treating physicians
greater weight in evaluating claims made by veterans. As in the
consideration of any evidence submitted in support of a veteran’s claim,
the BVA must provide the
reasons or bases for the acceptance or rejection of the medical opinions
of treating physicians and reasons or bases for the relative weight and
probability given to such evidence. 38 U.S.C.A. ù 7104(d)(1); see
Sammarco v. Derwinski, 1 Vet.App. 111, 112-13 (1991); Gilbert, 1 Vet.App.
at 56.
F.
Appellant argues that due to blatant racism, there was clear and
unmistakable error since the first rating decision under 38 U.S.C.A. ù
7103(c) and ù 503(a) (West 1991). Appellant urges the Court to award
service connection for his mental disease to the date of his separation
from service, September 6, 1943. While the Court is appalled by the
racist comment in the veteran’s service medical record and the treatment
that he has received by the VA, we cannot do this for several reasons.
First, the veteran did not apply for compensation and pension benefits
until June 26, 1947, and if benefits could be awarded, this would be the
earliest date possible. Second, the October 10, 1947, rating decision was
never appealed, and thus, became a final decision and is not subject to
review by this Court. 38 U.S.C.A. ù 7105; 38 C.F.R. ùù 3.104(a), 20.
302, 20.1103 (1992).
The Court has recently held that it has limited jurisdiction to
review cases for “clear and unmistakable error.” Russell v. Principi, 3
Vet.App. 310, 314-15 (1992) (consolidated with Collins v. Principi, No.
90-416) (en banc). The BVA must have adjudicated the issue; it cannot be
raised before this Court for the first time. See id. at 315. In this
case, appellant raised this issue in his latest attempt to reopen; however,
the BVA never adjudicated the issue of whether there was “clear and
unmistakable” error in the rating decisions below. Without a final
adjudication by the BVA on this issue, the Court does not have
jurisdiction to review it at this time.
The BVA “must review all issues which are reasonably raised from a
liberal reading of the appellant’s substantive appeal.” Azurin v.
Derwinski, 2 Vet.App. 489 (1992); Mingo v. Derwinski, 2 Vet.App. 51, 54 (
1992) (citing Myers v. Derwinski, 1 Vet.App. 127, 129 (1991)). The VA’s
statutory “duty to assist” the veteran under 38 U.S.C.A. ù 5107(a) (West
1991) to develop the facts pertinent to his claim must extend the liberal
reading given to a veteran’s substantive appeal “to include issues raised
in all documents or oral testimony submitted
prior to the BVA decision.” EF v. Derwinski, 1 Vet.App. 324, 326 (1991
). Appellant raised the claim that “clear and unmistakable” error was
present in the rating decisions below, and this claim must be remanded for
adjudication.
G.
Appellant’s claim must also be remanded for the Board to adjudicate
the issue of “obvious” error in the 1953 BVA decision. The VA regulations
permit appellant to raise a claim for “obvious” error, as follows:
Reconsideration of an appellate decision may be accorded at
any time by the Board of Veterans’ Appeals on motion by the
appellant or his or her representative or on the Board’s own
motion: (a) Upon allegation of obvious error of fact or law
. . .

38 C.F.R. ù 20.1000 (1992) (emphasis added). Appellant specifically
raised the issue of “obvious” error before the Board, but it did not
consider this claim. As this Court has repeatedly held, and as stated
above, the BVA must consider all issues raised in appellant’s substantive
appeal. See Azurin, supra; Mingo, supra; Myers, supra; EF, supra. In
Myers, the Court found this holding to be derived directly from the VA’s
own regulation set out in 38 C.F.R. ù 19.123 (now appearing in part at 38
C.F.R. ù 20.202 (1992)). 1 Vet.App. at 129-30. The statutory authority
for this regulation appears at 38 U.S.C.A. ù 7105.
In his motion for reconsideration, the Secretary asserts that the
authority to review the record for “obvious error” resides exclusively in
the discretion of the Board. We disagree. While the BVA may have
discretion to correct an “obvious” error, when one is found, it does not
have discretion to determine whether it will consider such a claim. See
38 U.S.C.A. ù 7103(c); Azurin, supra; Mingo, supra; Myers, supra; EF,
supra.
Based on this regulatory and statutory authority, as well as our
precedential opinions, we remand the issue of “obvious” error to the Board
for adjudication. Once the Board resolves the issue of “obvious” error,
as well as the issue of “clear and unmistakable” error, it must determine
the effective date of the award for the service-connected psychiatric
disorder.

III. Conclusion
The November 21, 1990, BVA decision is reversed, and the matter
remanded pursuant to 38 U.S.C.A. ù 7252(a). The Secretary is directed to
grant service connection for the veteran’s psychiatric condition and to
take the appropriate steps to ensure that he receives a prompt rating
consistent with this opinion.

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