Citation Nr: 0902787 Decision Date: 01/27/09 Archive Date: 02/09/09 DOCKET NO. 07-16 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a July 17, 1987, rating decision was clearly and unmistakably erroneous (CUE) regarding the evaluation of service connected hemorrhoids based on its failure to consider the veterans symptoms of Crohn's disease or colitis when assigning a noncompensable disability rating. ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The veteran served on active duty from July 1976 to July 1981. This matter is on appeal from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the veteran requested a Travel Board hearing. The veteran, however, in September 2007 withdrew his request for this hearing. FINDINGS OF FACT 1. In September 2003, the veteran alleged CUE in RO's July 1987 rating decision which denied a compensable rating for his service-connected hemorrhoids and which did not consider a claim or symptoms referable to Crohn's disease or colitis. 2. At the time of the July 1987 RO decision there was no formal or informal claim of Crohn's disease or colitis filed. 3. The RO's July 1987 decision denying a compensable rating for the service-connected hemorrhoids and its failure to consider a claim or symptoms referable to Crohn's disease or colitis was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied. CONCLUSION OF LAW A July 1987 rating decision which denied a compensable rating for hemorrhoids and which did not address a claim or symptoms for Crohn's disease/colitis is not considered CUE. 38 U.S.C.A. §§ 5103(a), 5103A, 5109A (West 2002); 38 C.F.R. §§ 3.105, 3.303, 20.1403. (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has been service connected for hemorrhoids with a 0 percent disability rating since November 1984. In May 1987, he submitted a claim for an increased rating, which was denied by the RO in July 1987. This decision went unappealed and, in July 1988, became final. In April 2003, he submitted a claim for service connection for Crohn's disease and for an increased rating for his service-connected hemorrhoids. In June 2003, the RO merged the two claims into a single service-connected disability and assigned a 30 percent disability rating, effective April 18, 2003. In a September 2003 Notice of Disagreement (NOD), the veteran asserted that he was entitled to an earlier effective date because the VA examiner failed to diagnose Crohn's disease at his June 1987 VA examination, thus improperly denying him additional benefits. This earlier effective date claim was ultimately denied by the Board in July 2006. However, in that decision, the Board construed his statements in the September 2003 NOD as a claim that the RO's July 17, 1987 decision denying his increased rating claim for his service connected hemorrhoids was CUE. Previous determinations that are final and binding, including decisions of increased ratings and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). The determination as to whether CUE is shown in the July 17, 1987, rating decision must be based only on consideration of the evidence of record at the time of the decision in question, and with consideration of the laws extant at that time. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (CAVC) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). As an initial procedural matter, the Board finds that the July 1987 rating action is final. There is no indication that the letter was undeliverable, nor has the veteran so claimed. The letter to the veteran, with the associated decision attached, clearly notified him that the claim was being denied and the reasons why. Therefore, the Board concludes that the veteran received proper notice of the decision and, when he did not timely appeal, the claim became final in July 1988. Turning to the merits of the veteran's contention, the evidence before the RO at the time included a June 1987 VA examination. There, the examining physician observed a small, non-tender internal hemorrhoid, and that his stool did not contain blood. While the examining physician recognized a history of hemorrhoids, they were asymptomatic. The veteran also submitted VA treatment records from March 1986 to May 1987, which relate mostly to his service- connected respiratory disorder. While the records indicate some instances of diarrhea, these episodes were characterized by adverse reactions to medications, rather than Crohn's disease or hemorrhoids. An earlier VA examination was also conducted in July 1986. However, that particular examination was limited to his service-connected respiratory disorder. The veteran also submitted a collection of documents from June to December 1984, which were duplicative of documents he had submitted as part of his original May 1984 claim. These records predate the claim under appeal and, in any event, would not have been probative of the veteran's disability level at the time of his May 1987 claim. Additionally, the veteran has submitted statements from February and July 1987. However, both of these statements pertain to his service-connected respiratory disorder. In fact, nowhere during the course of his original claim did he assert that his hemorrhoid disability had become worse. In its July 1987 decision, the RO noted the VA examination findings of the presence of a "small, non-tender palpable internal hemorrhoid," but declined to grant a compensable rating for this service-connected disability. Based on the evidence submitted, the Board concludes that it was not unreasonable for the RO to determine that the veteran had not met the criteria for a compensable rating. In 1987, diagnostic code 7336, provided that a noncompensable rating was assigned for internal or external hemorrhoids which were mild or moderate. A 10 percent rating was assigned for internal or external hemorrhoids which were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The highest 20 percent rating required hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. The Board observes that the RO, at the time of the July 1987, considered all relevant facts and applied the appropriate laws and regulations in denying a compensable rating for hemorrhoids. In weighing the facts which were before them at the time of the 1987 decision, they determined that a compensable rating for hemorrhoids was not warranted under the diagnostic criteria for hemorrhoids. A discussion on whether the RO appropriately weighed the facts at the time of the 1987 decision would be futile as a claim for CUE could never been substantiated based on how the RO weight the facts. The veteran's primary claim here is that the RO, and more specifically the VA examiner, failed to identify his Crohn's disease which, he argues, would have allowed him an increased rating based on this disorder. In support of his contention, he has submitted copies of his service treatment records, which indicate that he was treated for an intestinal disorder (identified there as colitis) in June 1981. The Board observes that the veteran, in essence, is arguing that VA failed in its duty to assist him in developing a claim of Crohn's' disease which could have in turn provided a basis for a higher rating for his service-connected hemorrhoids. The Court has held that the failure to fulfill the duty to assist cannot constitute clear and unmistakable error. Crippen v. Brown, 9 Vet. App. 412 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). Specifically, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Moreover, a review of the evidence at the time of the July 1987 decision does not show that the RO failed to adjudicate a claim, formal or informal, for Crohn's disease. In this regard, the Board notes that the veteran had not filed a claim of service connection for Crohn's disease at the time of the July 1987 RO decision. Thus, it cannot be said that on this basis there was CUE in the July 1987 decision. In sum, the July 1987 rating decision neither ignored the facts or the law; the RO committed no undebateable error, which would have provided a manifestly different result. Accordingly, the Board concludes that the July 1987 rating decision was not clearly and unmistakably erroneous in it failure to grant a compensable rating for hemorrhoids and in not taking into consideration Colitis/Crohn's disease, as no formal or informal claim for service connection was ever filed concerning that disability at the time of the July 1987 decision. Finally, the Board notes that while it has considered the application of the Veterans Claims Assistance Act and the regulations promulgated with respect thereto, the CAVC held in Parker v. Principi, 15 Vet. App. 407 (2002), that the VCAA is not applicable to claims for CUE in an RO decision. See also Livesay v. Principi, 15 Vet. App. 165 (2001) (VCAA does not apply to motions for CUE). As the regulations do not provide any rights other than those provided by the Act itself, the Board finds that further development is not warranted in this matter under either the VCAA or the regulations that have been promulgated to implement the VCAA. ORDER A claim for CUE in a July 1987 rating decision which denied a compensable rating for hemorrhoids and which did not considered a claim or symptoms of Crohn's disease/ colitis is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs