BVA9505320 
DOCKET NO.  93-09 180     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Buffalo, New
York

THE ISSUES

1.  Whether the rating decision of March 12, 1946, which assigned
a noncompensable rating for corneal scarring of the right eye,
was clearly and unmistakably erroneous.

2.  Entitlement to an effective date earlier than March 21, 1991,
for the assignment of a 30 percent disability rating for corneal
scarring of the right eye.

REPRESENTATION

Appellant represented by: New York Division of Veterans'
Affairs

ATTORNEY FOR THE BOARD

R. M. Yonemoto, Counsel

INTRODUCTION

The veteran had active service from April 1943 to December 1945.

In a statement of January 1992, the veteran's representative
raised the issue of entitlement to service connection for shell
fragment wound residuals of the right and left legs and for skin
grafts associated with these injuries.  Since these issues have
not been developed or certified for appeal, they will not be
addressed herein, but are referred to the Regional Office (RO)
for appropriate action.

REMAND

The veteran's claim for an increased rating for corneal scarring
of the right eye, received on March 21, 1991, is silent with
respect to postservice eye treatment.  In a statement of April
1991, the veteran's representative requested that all medical
reports including those from the Department of Veterans Affairs
(VA) Medical Center in Syracuse, New York, be obtained for the
record.

In an undated statement, received in May 1991,
Dr. W. L. Petersen, reported that he had last seen the veteran in
September 1989, and that the veteran's vision was 20/400 in the
right eye and 20/30 plus 3 in the nonservice-connected left eye.
On a VA eye examination in June 1991, it was noted that the
veteran had had cataract extraction with intraocular lens in the
left eye by Dr. Petersen two years before.  Currently, the claims
folder contains no clinical records from Dr. Petersen.

In a rating action of August 1991, the RO increased the
disability rating assigned for the veteran's service-connected
corneal scarring of the right eye from noncompensable to
30 percent, effective from March 21, 1991, the date of receipt of
his claim.  The veteran's representative stated in February 1992
that the veteran indicated that the right eye condition had
become worse much earlier than the date of receipt of his claim.
In a statement of September 1992, the representative raised the
issue of entitlement to an effective date earlier than March 21,
1991, for the assignment of a 30 percent disability rating for
corneal scarring of the right eye.  Although that issue has not
been certified for appeal, the Board is of the opinion that it is
inextricably intertwined with the issue of whether the rating
decision of March 12, 1946, denying a compensable disability
rating for corneal scarring of the right eye, was clearly and
unmistakably erroneous.

In the context of the earlier effective date claim at issue, it
is significant that the controlling regulation (38 C.F.R. § 3.400
(0)(2)) provides that the effective date of disability
compensation is the earliest date as of which it is factually
ascertainable that an increase in disability had occurred, if
claim is received within one year from such date.

In view of the foregoing and in an effort to afford the veteran
every administrative consideration of his claim, the Board is of
the opinion that the case be REMANDED to the RO for the following
actions:

1.  The RO should attempt to obtain and
associate with the claims folder copies of
reports of all eye treatment the veteran
received prior to March 1991.  The complete
clinical records of Dr. W. L. Petersen
pertaining to the veteran should also be
obtained and associated with the claims
folder.  The veteran should be requested to
assist in this matter.

2.  The RO should then consider the issues
of entitlement to an effective date earlier
than March 21, 1991, for the assignment of
a 30 percent disability rating for corneal
scarring of the right eye and whether there
was clear and unmistakable error in the
March 1946 rating.  If the decisions remain
adverse to the veteran, a supplemental
statement of the case, containing a
discussion of the evidence as applied to 38
C.F.R § 3.400(o)(2), should be furnished to
the veteran and his representative.

When the above development is completed, the veteran and his
representative should be afforded an opportunity to respond to
the supplemental statement of the case.  The case should then be
returned to the Board for further appellate consideration.  No
action is required of the veteran until he receives further
notice.  The purpose of this REMAND is to procure clarifying data
and to satisfy due process requirements.

          GEORGE R. SENYK
          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) (1994).