[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 90-1540 [ACTIVITY:]{.underline} RATING

[NAME:]{.underline} Chisem v. Brown

[ISSUE(S)]{.underline}: Evaluation of evidence; reasons and bases;
reasonable doubt; \"Treating Physician Rule\"; clear and unmistakable
error

[ACTION BY COURT]{.underline}: Reversal/Remand [DECISION
DATE]{.underline}: 2/9/93

[Held]{.underline}: 1) The BVA\'s factual findings are clearly erroneous
and there is no plausible basis for its factual conclusions.

2\) The conclusion of any treating or examining physician is a medical
conclusion, one which the BVA is not free to ignore or disregard.

3\) The Court declines to adopt a rule that gives the opinions of
treating physicians greater weight in evaluating claims made by
veterans. 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.

4\) Because the BVA must review all issues reasonably raised in
appellant\'s substantive appeal, the issues of clear and unmistakable
error in the 1947 rating action and obvious error in the 1953 BVA
decision must be adjudicated.

5\) While the BVA may have discretion to [correct]{.underline} an
obvious error, when one is found, it does not have discretion to
determine whether it will [consider]{.underline} such a claim.

[Reviewer\'s Comment]{.underline}: An opinion in this case was initially
issued on 10/7/92. The Secretary filed a motion for reconsideration
contending that there is no authority to direct the BVA to adjudicate
the issue of obvious error as this authority resides exclusively in the
sound discretion of the Board itself. Motion for reconsideration was
granted, and the 10/7/92, decision was vacated and replaced by this
decision.

[Facts]{.underline}: Appellant served in the US Army from November 1942
to September 1943. Throughout the service medical records, he is
described as having a mental deficiency and an IQ of 59%. Service
medical records also note complaint of weakness and nervousness with an
impression of psychoneurosis. He was discharged from service for mental
deficiency. The initial claim for service connection was denied on
October 10, 1947. In February 1952, appellant submitted several
affidavits in support of his claim. Again the claim was denied on
February 29, 1952. A private physician subsequently submitted letters
giving a diagnosis of psychoneurosis, mixed type, with elements of
neurasthenic features and depression.

The physician stated the illness began and was aggravated during
service. The BVA issued a decision denying service connection on
February 19, 1953. The veteran reopened his claim in 1963 by submitting
a statement explaining his ailments and frustrations while in the Army.
He also supplied a list of doctors who had treated him since service.
Doctors\' statements were received documenting treatment from 1947 on
for anxiety and neurogenic complaints. An examination diagnosed anxiety
state. In 1979, a doctor submitted a letter stating he had been treating
the veteran. He stated the veteran had been classified in service as
having mental deficiency. This was invalid and was probably due to
prejudice or lack of education rather than to any intellectual
impediment. A reopened claim was again filed in March 1990. A medical
statement was deemed not new and material and the denial was continued.
A personal hearing was held and appellant submitted a service medical
record showing he was reclassified for duty by reason of his anxiety
state. The Hearing Officer determined the evidence submitted since 1953
not to be new and material and that the prior rating decision was not
found to be in error. In the appeal, appellant alleged obvious error in
the 1953 decision and racial prejudice. The BVA denied service
connection on November 19, 1990, stating that evidence received since
the 1953 decision was new, but did not alter the basis upon which the
prior decision was predicated.

[Court Analysis]{.underline}: The decision of the BVA on February 19,
1953, is a final decision and not subject to review by the Court. The
Secretary filed a motion for remand, but the Court determined reversal
to be the appropriate remedy. The Court found that all the evidence in
the record clearly supported the claim for service connection. The
evidence submitted prior to the 1953 decision included service medical
records showing onset of a psychoneurotic disorder and private medical
records showing treatment for a mental disorder shortly after discharge
from service. The Court determined that this evidence was not considered
with evidence submitted since the 1953 decision. Included with this
evidence were evaluations noting that the inservice diagnosis was the
result of racism or lack of formal education. These expert opinions
linking the veteran\'s current psychiatric disorder to his military
service stand unrebutted and are supported by the evidence of record.
The only conclusion that can be drawn is that the psychiatric disorder
was present and misdiagnosed during service.

Appellant urged the Court to adopt the \"Treating Physician Rule\" and
require VA to give opinions of treating physicians greater weight in
evaluating claims made by veterans. The Court declined to do this as in
the consideration of any evidence submitted in support of a claim, the
BVA must provide reasons or bases for the acceptance or rejection of the
opinions and for the relative weight and probability given to such
evidence.

Appellant argued that due to blatant racism, the 1953 BVA decision
contains obvious error and that there was clear and unmistakable error
since the first rating decision. The Court was urged to award service
connection retroactive to the date of separation from service, September
6, 1943. The Court noted that; \"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.\" The initial claim was not filed until June 26, 1947, and
compensation could not be awarded prior to that date. Additionally,
since the October 10, 1947, rating decision was never appealed, it was a
final decision and is not subject to review by the Court. The Court
stated that it had recently held that it has limited jurisdiction to
review cases for \"clear and unmistakable error.\" [Russell v.
Principi]{.underline}, No. 90-396, and [Collins v.
Principi]{.underline}, No. 90-416. The issue of clear and unmistakable
error cannot be raised for the first time before the Court. It must have
first been adjudicated by the BVA. Because the BVA must review all
issues which are reasonably raised from a liberal reading of
appellant\'s substantive appeal, appellant\'s claim must be remanded to
adjudicate the issue of clear and unmistakable error in the rating
decisions below.

The Court also held that appellant\'s claim must also be remanded for
adjudication of the issue of \"obvious error\" in the 1953 BVA decision.
38 C.F.R. 20.1000 permits appellant to raise a claim for \"obvious\"
error. Appellant specifically raised this issue, and, as the Court has
noted repeatedly, the BVA [must]{.underline} consider [all]{.underline}
issues raised in appellant\'s substantive appeal. The law does not grant
the BVA discretion to determine if it will [consider]{.underline} a
claim of \"obvious error\". Once the Board resolves these issues, it
must determine the effective date of the award for the service-connected
psychiatric disorder.

[RECOMMENDED VBA ACTION(S)]{.underline}: Provide a copy of this
assessment document to regional offices with instructions to discard
Chisem I and replace it with this decision.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[3/10/93]{.underline}

Yes No J. Gary Hickman Date