BVA9505422 DOCKET NO. 92-24 507 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES To be clarified. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from September 1965 to April 1969. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Chicago, Illinois. The North Carolina Division of Veterans Affairs initially represented the veteran while he resided in that state. During the appellate process, he moved to Illinois and was no longer eligible for assistance by the North Carolina Division of Veterans Affairs. The veteran was contacted in January 1995 in an attempt to clarify whether he desired representation by an accredited service organization. The veteran did not respond to our inquiries, and we have determined that he did not wish further assistance from a service representative. REMAND Upon the veteran's discharge from service, he applied for and received service connection benefits for hemorrhoids, post- operative residuals anorectal, with anal fissure and cryptitis. VA Form 21-6796, Rating Decision, January 16, 1970. These disabilities were rated under Diagnostic Code 733F (sic)-7335, of 38 C.F.R. Part 4 (1970), and a 10 percent disability evaluation was assigned. This disability percentage was based upon the veteran's service medical records and a September 1969 VA Compensation and Pension Examination which disclosed the residuals of previous rectal surgical procedures, no external hemorrhoids, a small posterior fissure, mild cryptitis, and several small internal hemorrhoids. The rating action was by the Philadelphia RO. After moving to North Carolina, the veteran requested an increase in his VA benefits in 1974. The Winston-Salem RO, denied the request on the grounds that the service connected disability had not increased in severity. VA Form 6789, Deferred or Confirmed Rating Decision, undated. That next year, based on a request from the veteran, he having moved again, the Wilmington RO denied his request for an increased rating. VA Form 21-6796, Rating Decision, May 5, 1975. In its decision, the RO stated "[a]s a rule the slight proctitis following excised hemorrhoid and infect crypt resolve the slight proctitis and the entire rectal disability." The description of the disability was changed to: postoperative hemorrhoid, external, and cryptectomy with slight proctitis. The veteran appealed the rating decision to this Board where, on August 17, 1976, a claim for "entitlement to an increased rating for a rectal condition" was denied. The veteran was subsequently hospitalized for treatment of the service connected condition. In the rating decision granting Paragraph 29 benefits, the Philadelphia RO, for rating purposes, bifurcated the nomenclature of the veteran's disability; i.e., he was rated for the postoperative residuals of a fistula under Diagnostic Code 7335-7332, and he received a separate rating for prostatitis with hemorrhoidectomy and cryptectomy under Diagnostic Code 7336. 38 C.F.R. Part 4 (1977). Nearly ten years later, and following another move, the veteran requested an increased rating for his service-connected disabilities, along with Paragraph 29 or 30 benefits. The Winston-Salem RO granted his request for an increased rating. VA Form 21-6796, Rating Decision, June 16, 1986. However, the RO found "[d]ue to the overlapping symptomatology of the vet's multiple SC rectal area problems, evaluation under one entity code is indicated." Thus, the disorder was rated under Diagnostic Code 7399-7332 (postoperative fistula in ano with hemorrhoids and proctitis). 38 C.F.R. Part 4 (1986). The rating under Diagnostic Code 7336 was discontinued as of January 13, 1986. 38 C.F.R. Part 4 (1986). The veteran appealed the June 1986 decision and proffered evidence before a hearing officer at the RO. He requested a greater disability percentage, and asked that the 30 percent disability be retroactively assigned. The Winston-Salem RO denied the claim in December 1986 on the grounds that the available evidence failed to show a more disabling disability. It also noted that error had not been committed and that a retroactive payment of benefits was not in order. Most recently, after still another move, the veteran applied to the Chicago RO for increased disability benefits. In his testimony before the RO hearing officer, the veteran, through his accredited representative, requested an increased rating for his rectal condition. He also requested that a determination be made as to whether the initial rating decision and the June 1986 contained clear and unmistakable error. That is, based on the medical evidence presented, either a 30 or 60 percent disability evaluation should have been assigned to the veteran's condition. The veteran also implied that the various regional offices erred when they combined his rectal, intestinal, and hemorrhoidal condition together instead of assigning a separated disability code to each disorder. RO Hearing Transcript, pages 1-5, February 20, 1992. The Chicago RO issued a decision in March 1992. VA Form 21-0584, Confirmed Rating Decision, March 18, 1992. The RO identified the issue as follows: Whether or not new & material evidence has been presented warranting reconsideration of prior decision denying the vet a retroactive increase in his S/C rectal condition back to 1969 based upon clear and unmistakable error 38 C.F.R. 3.105(a). The RO found that the veteran's testimony before the RO was new evidence, but it was insufficient to refute the evidence of record already considered, and thus his claim concerning clear and unmistakable error was denied. Additionally, the RO found that the evidence did not support an increased rating evaluation. Upon receipt of this latest decision, the veteran provided testimony at the RO. The hearing officer confirmed the March 1992 rating action, and the veteran has appealed to the Board. The Board finds that the record is inadequate for it to make an informed appellate decision. We conclude that the issue before us on appeal does not adequately represent the issues raised by the veteran during his testimony before two different hearing officers. At those hearings the veteran has requested decisions concerning the following: 1. Entitlement to an increased rating for a rectal condition, currently evaluated as 30 percent disabling. 2. Whether the January 16, 1970, rating decision of the agency of original jurisdiction contained clear and unmistakable error. 3. Whether the December 8, 1986, rating decision of the agency of original jurisdiction contained clear and unmistakable error. 4. Entitlement to an effective date earlier than January 14, 1986, for the granting of a 30 percent evaluation for the post-operative residuals of an anal fistula with hemorrhoids and proctitis. The veteran has claimed that the initial rating decision was deficient in that the RO combined all of his intestinal, rectal, and hemorrhoidal disorders into one. He implies that the symptomatology for these conditions are not duplicative or overlapping, and should be rated separately. He contends that to do so would not be pyramiding as prohibited by 38 U.S.C.A. § 1155 (West 1991), and 38 C.F.R. Part 4, § 4.14 (1994). In conjunction with the above, he further argues that the various regional offices which evaluated his disabilities did not examine all of the medical evidence prior to the issuance of the rating evaluations. He therefore avers that the RO committed clear and unmistakable error when they failed to do this. Additionally, he has requested an increased rating and a retroactive benefits. Despite the veteran's assertions, the RO treated the veteran's claim as request to reopen his 1986 claim as to whether the RO previously committed error in evaluating his disabilities. The Board, after reviewing the testimony provided by the veteran in October 1986, finds no mention of "clear and unmistakable error" by the veteran. It appears that the issues raised in 1986 were for an increased rating and for an earlier effective date. For the veteran to reasonably raise the issue of clear and unmistakable error there must be some degree of specificity as to what the actual error is. The veteran must provide persuasive reasons as to what error has been committed and what the outcome of the decision would have been had not the error been made. See Fugo v. Brown, 6 Vet.App. 40 (1993); Russell v. Principi, 3 Vet.App. 310 (1992); Olson v. Brown, 5 Vet.App. 430 (1993). We find that the veteran did not make these assertions, and therefore, the issue of whether clear and unmistakable error had been made was not before the RO. The Board also notes that even if the December 1986 Rating Decision is considered a determination on whether clear and unmistakable error has been committed, the RO could not, in its most recent decision, review that issue. The Court of Veterans Appeals has stated that ". . . [a] claim for CUE cannot be endlessly reviewed. Once there is a final decision on a particular claim of CUE, that particular claim of CUE may not be raised again; it is res judicata." Olson v. Brown, 5 Vet.App. 430, 433 (1993). This means that the RO, and subsequently, the hearing officer, could not legally have revisited the issue. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO will provide the veteran with the opportunity to review his claims folder so that he may determine what evidence was of record at the time each decision was made. If the veteran opines that certain evidence was not of record, and should have been, he may solicit the help of the RO in obtaining such evidence. 2. After the veteran has reviewed the claims folder, the veteran should specify the error alleged to have been made. He must do more than express disagreement as to how the facts were weighed. If he is unclear as to what this means, the following United States Court of Veterans Appeals cases will provide guidance: Caffrey v. Brown, 6 Vet.App. 377 (1994); Damrel v. Brown, 6 Vet.App. 242 (1994); Fugo v. Brown, 6 Vet.App. 40 (1993); Olson v. Brown, 5 Vet.App. 430 (1993); Porter v. Brown, 5 Vet.App. 233 (1993); Russell v. Principi, 3 Vet.App. 310 (1992). 3. The veteran should be examined by a gastroenterologist and dermatologist to determine the nature and extent of his hemorrhoidal, intestinal, and rectal disorders. These examinations should include the obtaining of full history for each of the disorders. Additionally, each of the disorders should be separately evaluated, and the examiners should offer a detailed opinion as to whether any of them are etiologically related to one another. All indicated special studies should be accomplished and the examiners should set forth reasoning underlying the final diagnoses. The claims folder and this Remand are to be made available to the examiner for review prior to the examination. Following completion of the requested development, the veteran's claim should be readjudicated. Included in this readjudication process should be a determination by the RO as to whether the veteran's disabilities should be separately or jointly rated, and whether each rating board properly adjudicated the issues before it. If any aspect of the decision remains unfavorable to the veteran, he should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. JACK W. BLASINGAME 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).