Citation Nr: 1817702 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-31 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an earlier effective date for the grant of service connection for irritable bowel syndrome (IBS). 2. Entitlement to an earlier effective date for the grant of service connection for coronary artery disease (CAD). 3. Entitlement to an earlier effective date for the grant of service connection for a left knee disability. 4. Entitlement to service connection for chronic fatigue syndrome (CFS). 5. Entitlement to service connection for shortness of breath. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for a left elbow disability. 8. Entitlement to service connection for a right elbow disability. 9. Entitlement to service connection for a low back disability. 10. Entitlement to service connection for a right knee disability. 11. Entitlement to service connection for a neck disability. 12. Entitlement to service connection for chromosomal damage sterility. 13. Entitlement to an increased rating for colon syndrome. 14. Entitlement to an increased rating for a cardiac disability. 15. Entitlement to an increased rating for a left knee disability. 16. Entitlement to an increased rating for hypertension. 17. Propriety of the reduction from 70 percent to 50 percent from September 18, 2015 to May 20, 2016 for posttraumatic stress disorder (PTSD). 18. Entitlement to a rating in excess of 70 percent for PTSD. 19. Whether there was clear and unmistakable error (CUE) in the determination of the effective date for the Veteran's grant of service connection for PTSD. REPRESENTATION Veteran represented by: Polly Murphy, Attorney WITNESS AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1988 to September 1992. These matters come before the Board of Veterans' Appeals (Board) from a rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. On November 2016, the Veteran's attorney submitted a notice of disagreement (NOD) with the effective date of the award related to PTSD. This NOD was timely for an October 2016 rating decision that provided an increased 70 percent rating for PTSD from May 20, 2016. However, on the November 2016 NOD, the Veteran's attorney noted that the Veteran "filed for anxiety and PTSD in 1999" and the RO "erroneously denied the claim, addressing only anxiety and did not address the issue of PTSD...[service connection] for PTSD should be effective 1999, date of original claim." She additionally argued that the Veteran should be in receipt of a 70 percent rating from 1999 due to the findings of a January 2000 VA examination. She also argued for an "EED" (earlier effective date" for PTSD. The Agency of Original Jurisdiction (AOJ) informed the attorney that a simple earlier effective date claim for the grant of service connection for PTSD based on the October 2016 rating decision was unavailable as it was considered a "free-standing" earlier effective date claim, and was untimely to the 2009 rating decision that granted service connection. However, the AOJ also determined that November 2016 statement could be considered a claim for a finding of CUE for a prior determination, and denied a claim of CUE for an earlier effective date for PTSD in an appealed May 2017 rating decision. The Veteran and his daughter testified before the undersigned Veterans Law Judge (VLJ) in November 2017. Although at the time of the hearing it appears that the paperwork related to the CUE claim had not caught up the electronic record, the VLJ took testimony regarding that issue. The CUE claim was certified to the Board in November 2017. As such, it is addressed in this decision, in the REMAND section. The issues of whether there was CUE in the determination of the effective date for the Veteran's grant of service connection for PTSD, and entitlement to a rating in excess of 70 percent for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the November 2017 Board hearing, the Veteran withdrew the following claims on appeal (numbered 1 through 16 above): entitlement to earlier effective dates for IBS, CAD, and a left knee disability, entitlement to service connection for CFS, shortness of breath, a left elbow disability, a right elbow disability, a low back disability, a right knee disability, a neck disability, and chromosome-damaged sterility, and entitlement to increased ratings for IBS, CAD, a left knee disability, and hypertension. 2. The RO failed to issue a notice of a proposed reduction or notice of the Veteran's procedural rights under 38 C.F.R. § 3.105 (e) to dispute the reduction for PTSD from 70 percent to 50 percent. 3. In a rating decision dated September 30, 2015, and notice provided September 30, 2015, the RO implemented a reduction of the disability rating for PTSD from 70 percent to 50 percent, effective, September 18, 2015. The reduction resulted in a combined rating reduction from 90 percent to 80 percent, effective September 18, 2015. Although the Veteran was subsequently awarded total disability based on individual unemployability (TDIU) effective May 22, 2014, this did not occur until an October 2016 rating decision. 4. As the September 2015 rating decision failed to follow the due process provisions of 38 C.F.R. § 3.105 (e) prior to reducing the rating, the rating reduction is void ab initio. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an earlier effective date for the grant of service connection for IBS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for an earlier effective date for the grant of service connection for a cardiac disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for an earlier effective date for the grant of service connection for a left knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal of entitlement to service connection for CFS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal of entitlement to service connection for shortness of breath have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal of entitlement to service connection for headaches have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the appeal of entitlement to service connection for a left elbow disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for withdrawal of the appeal of entitlement to service connection for a right elbow disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for withdrawal of the appeal of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 10. The criteria for withdrawal of the appeal of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 11. The criteria for withdrawal of the appeal of entitlement to service connection for a neck disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 12. The criteria for withdrawal of the appeal of entitlement to service connection for chromosome damage sterility have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 13. The criteria for withdrawal of the appeal of entitlement to an increased rating for IBS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 14. The criteria for withdrawal of the appeal of entitlement to an increased rating for CAD disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 15. The criteria for withdrawal of the appeal of entitlement to an increased rating for a left knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 16. The criteria for withdrawal of the appeal of entitlement to an increased rating for hypertension have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 17. The criteria for restoration of a 70 percent rating for PTSD, effective September 18, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Appeals Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the November 2017 Board hearing, the Veteran and his attorney indicated his wish to withdraw his appeals for: entitlement to earlier effective dates for IBS, CAD, and a left knee disability, entitlement to service connection for CFS, shortness of breath, a left elbow disability, a right elbow disability, a low back disability, a right knee disability, a neck disability, and chromosome-damaged sterility, and entitlement to increased ratings for IBS, CAD, a left knee disability, and hypertension. Hence, there remain no allegations of errors of fact or law concerning this these issues for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. This withdrawal is permissible under the Board's rules of practice. See 38 C.F.R. § 20.204. Given the appellant's clear intent to withdraw his appeals, further action by the Board in these matters would not be appropriate. 38 U.S.C.A. § 7105. Reduction As the Board's decision to restore the 70 percent rating for service-connected PTSD is completely favorable, no further action is required to comply with VA's duties to notify and assist. By a rating action in September 2015, the AOJ reduced the disability rating for service-connected PTSD from 70 percent to 50 percent, effective September 18, 2015. These service-connected disability was rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Any change in evaluation based upon any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). The preliminary matter in this case is whether the AOJ followed the procedural protections for reducing the Veteran's service-connected PTSD from 70 percent to 50 percent, as set forth in 38 C.F.R. § 3.105 (e). VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary must be notified at his or her latest address of record, of the contemplated action and furnished detailed reasons. The beneficiary must be given 60 days for the presentation of additional evidence. 38 C.F.R. § 3.105 (e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29- 97. It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. There is no evidence that the reduction was first proposed, or that notice regarding the process of how to dispute the proposed reduction was provided to the Veteran. Here, the Veteran requested an increased rating for his PTSD in August 2015. He underwent a VA examination in September 2015. The AOJ reduced his PTSD rating to 50 percent in a September 2015 rating decision, based almost entirely on the September 2015 examination. Notably, the reduction of his PTSD rating to 50 percent, effective September 18, 2015, also resulted in his overall combined rating being reduced from 90 percent to 80 percent. Although, the Veteran was later granted entitlement to TDIU, effective May 22, 2014, this did not occur until October 2016. Therefore, there was a reduction in the amount of compensation he would receive as a result of this reduction in his PTSD rating. The Board finds that the RO did not satisfy a critical due process requirement under 38 C.F.R. § 3.105 (e). A reduction must first be proposed and the beneficiary must be notified at his or her latest address of record, and must be given 60 days for the presentation of additional evidence. See 38 C.F.R. § 3.105 (e). As there was no initial proposal and the Veteran did not receive notice of the proposed reduction, the September 2015 rating reduction violated the due process requirements of 38 C.F.R. § 3.105 (e), established to serve as a procedural protection against improper reductions of disability ratings. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when an AOJ reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In September 2014, the Veteran's daughter called his VA providers and noted that his "PTSD is out of control." She tried to get him to call the crisis line, but he would not. She felt he was abusing his prescription medications and possibly street drugs. She reported that the Veteran had hit her and she was afraid that he would become violent towards his elderly mother. The VA care provider called the local police and requested that the "check out the situation." An April 2015 psychology note included that the Veteran was having trouble sleeping, and that a few months prior he had an "episode (anger outburst)" and he lashed out at his brother. The psychologist noted that no criminal charges were filed. The Veteran stated he wanted to get control of his anger, and that he was trying to "get[] away from situation[s]" that cause anger, with some improvement. The psychology session focused on "life stress" and noted the Veteran was having irritability along with frustration when dealing with "people/public places," but that the Veteran was learning to "walk away." He noted that his sleep impairment was impacted his daytime mood. He noted he would wake up with intrusive images, dreams, sometimes frightened remembering dreams, and he would find himself sweating and with racing thoughts. A September 16, 2015 VA psychology note included that the Veteran was being seen via Telemed for individual therapy. His uncle had recently died, and the Veteran was disappointed that his siblings had not attended the funeral. He had recently regained contact with men that he deployed with during Desert Storm, and they had reminded him of several traumatic instances he had forgotten. The Veteran described one of the incidents, which involved the mercy-killing of an Iraqi Lieutenant who was terribly wounded. The Veteran described his devastation at being confronted with the extreme poverty in Iraq, and noted that his 1st Sergeant had to warn him not to become too emotionally attached to the civilians. The psychologist noted the Veteran's mood and affect were dysphoric. His speech was normal. He continued "to struggle with PTSD" and the session included working with him on the his emotions related to the death of the Iraqi Lieutenant. On September 18, 2015, the Veteran was afforded a fee-basis VA PTSD examination. The evaluator selected that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, irritability, hypervigilance, easy startle response, and "very anxious whenever around crowds of people in public places." An October 2015 psychology note included that the Veteran felt he was doing "better" and he was learning to walk away from stressful situations. He had recently attended a wedding where several of the men he served with in Iraq were also guests. He stated it was "difficult" because they all tended to gravitate to the traumas. He attempted to get his friends to remember the good times. The Veteran again discussed a couple traumatic events, including the death of the Iraqi Lieutenant, and an instance where the tank he was in was hit by an antitank mine. He noted that all of the men thought the Veteran and those in the tank were dead, but "he almost laughs now because he says the four in the tank had no idea it was as bad as it was." His mood and affect were euthymic. The psychologist noted the Veteran continued to "struggle" with PTSD. He was becoming more comfortable discussing traumatic events. The psychologist noted the Veteran continued to struggle with depression and anxiety related to his PTSD. A February 2016 psychology note included that the Veteran was upset over having to cut ties with some of his military friends, but whenever they got together, the friends only wanted to "re-hash traumatic events" no matter how many times the Veteran requested that they not talk about the events. His mood and affect were euthymic. In September 2016, the Veteran was afforded another fee-basis VA examination. The Veteran "estimated he was last evaluated the year prior." The evaluator noted that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, suicidal ideation, obsessional rituals, and impaired impulse control with unprovoked irritability with periods of violence. The Veteran was notably anxious during the evaluation. The Board notes that during the November 2017 hearing, the VLJ asked the Veteran if he felt his PTSD symptoms lessened, or he felt "better" around the time of September 2015 when his rating was decreased. He denied improvement in his PTSD. The VLJ asked the Veteran's daughter if she witnessed any improvement in her father's PTSD during that period and she stated "absolutely not." She stated instead, that he was "probably worse." An October 13, 2016 rating decision increased the Veteran's rating from 50 percent to 70 percent, effective May 20, 2016. As such, the reduction in rating for the Veteran's PTSD was only in effect from September 18, 2015 to May 20, 2016. Psychiatric symptoms tend to wax and wane. Given the above medical records, and the short period of time that the AOJ felt the Veteran's PTSD warranted a reduced 50 percent, it appears he simply had a period of waning symptoms without any sustained improvement. ORDER The appeal of entitlement to an earlier effective date for the grant of service connection for IBS is dismissed. The appeal of entitlement to an earlier effective date for the grant of service connection for CAD is dismissed. The appeal of entitlement to an earlier effective date for the grant of service connection for a left knee disability is dismissed. The appeal of entitlement to service connection for CFS is dismissed. The appeal of entitlement to service connection for shortness of breath is dismissed. The appeal of entitlement to service connection for headaches is dismissed. The appeal of entitlement to service connection for a left elbow disability is dismissed. The appeal of entitlement to service connection for a right elbow disability is dismissed. The appeal of entitlement to service connection for a low back disability is dismissed. The appeal of entitlement to service connection for a right knee disability is dismissed. The appeal of entitlement to service connection for a neck disability is dismissed. The appeal of entitlement to service connection for chromosomal damage sterility is dismissed. The appeal of entitlement to an increased rating for colon syndrome is dismissed. The appeal of entitlement to an increased rating for a cardiac disability is dismissed. The appeal of entitlement to an increased rating for a left knee disability is dismissed. The appeal of entitlement to an increased rating for hypertension is dismissed. Entitlement to restoration of a 70 percent rating for PTSD, effective September 18, 2015, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Increased Rating An October 2016 rating decision increased the Veteran's PTSD rating from 50 percent to 70 percent, effective May 20, 2016. The May 2017 rating decision was worded as: "entitlement to an earlier effective date of service connection for [PTSD] to include sleep disturbances is not shown due to a clear and unmistakable error. The 50 percent evaluation is continued from November 24, 2008." The timely July 2017 notice of disagreement (NOD) indicated a disagreement with the effective date and rating assigned for PTSD. This NOD was considered a disagreement with the denial of CUE. However, the AOJ did not interpret it as a claim for an increased rating for PTSD stemming from the October 2016 rating decision, although it is timely for that rating decision as well. A statement of the case has not been issued by the AOJ, and the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). CUE The Board is remanding the Veteran's CUE claim for clarification. CUE is a very specific and rare kind of error. 38 C.F.R. § 20.1403 (a). It is the kind of error of fact or law which, 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. 38 C.F.R. § 20.1403 (a); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. See 38 C.F.R. § 20.1403 (b), (c). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity and, unless it is the kind of error, that if true, would be CUE on its face, must provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Id. at 43-44. By way of history, on a June 1999 claim, the Veteran indicated he was seeking service connection for lumps in his legs. Also, on the claim form under the section related to medical treatment, the Veteran indicated he was being treated for hypertension and anxiety. A March 2000 rating decision denied entitlement to service connection for anxiety. In August 2000, the Veteran provided a timely NOD for the denial of service connection for anxiety, and stated that he considered his anxiety to be a part of his PTSD. As such, this NOD was considered a claim of entitlement to service connection for PTSD. An August 2000 SOC addressed the issue of entitlement to service connection for anxiety. The Veteran substantively appealed the March 2000 rating decision denial in February 2001. Although the substantive appeal was not timely, VA continued with the appeal. VA had difficulty keeping track of the Veteran as he was frequently changing addresses at this time. In a May 2003 rating decision, the AOJ denied entitlement to service connection for PTSD. The denial included that the Veteran failed to report for a scheduled VA examination, and, that, although he had a diagnosis of PTSD, the evidence did not establish that his described stressful experience occurred. In April 2004, the Board denied the Veteran's claim of entitlement to service connection for anxiety. The Board additionally remanded the issue of entitlement to service connection for PTSD for the issuance of a SOC, finding that a September 2003 VA Form 646 completed by the Veteran's prior representation, was a sufficient NOD for the May 2003 rating decision denial. The SOC for entitlement to service connection for PTSD was issued in May 2004. Unfortunately, the Veteran had moved again, and the mail containing the SOC was returned. The Veteran next contacted VA regarding disability claims in November 2008, when he submitted a claim to reopen his PTSD claim. The November 24, 2008 claim to reopen is the effective date of the grant of service connection for the Veteran's PTSD. The Veteran's attorney, in November 2016, argued that the Veteran "first filed for anxiety and PTSD in 1999." And that the AOJ only addressed anxiety in the March 2000 rating decision, instead of addressing both anxiety and PTSD. The attorney argues that the Veteran's grant of service connection for PTSD "should be effective 1999, date of original claim." During the November 2017 Board hearing, the Veteran's attorney argued that VA committed CUE by failing to attempt to verify stressors, failing to properly read the Veteran's DD 214, or that VA failed to review the Veteran's personnel record. She felt that the Veteran's DD 214/personnel record showed that had combat service, and that it should have been sufficient to acknowledge his reported stressors. She additionally submitted medical records she obtained from a hospital in Fort Worth, Texas, which showed the Veteran had in-patient treatment in 1992. In December 2017, the Veteran's attorney submitted additional argument related to his CUE claim. The argument includes the heading "May 8, 2017 RATING DECISION CONTENDS PTSD EFFECTIVE DATE 6/21/2011 IS NOT CUE." The May 2017 rating decision does include the sentence "the decision to grant compensation from June 21, 2011 for" PTSD is not considered to have been CUE. However, a November 2009 rating decision granted entitlement to service connection for PTSD effective November 24, 2008. The May 2017 rating decision used the wrong effective date for the award of service connection for PTSD. In the May 2017 rating decision on appeal, the AOJ addressed the CUE claim as one of CUE in the November 2009 rating decision, and specifically the effective date chosen in the November 2009 rating decision. Although the Veteran is seeking an earlier effective date for PTSD, his attorney has primarily argued CUE as related to prior denials of service connection. Here, however, the Board notes that it is not clear if the attorney is arguing CUE was committed in the March 2000 rating decision or in the May 2003 rating decision. If she is alleging CUE in the March 2000 rating decision, then the claim must be addressed as an allegation of CUE in the April 2004 Board decision. The March 2000 rating decision was subsumed by the April 2004 Board decision that upheld it. It is possible the attorney is alleging CUE in multiple decisions. It appears that some of the confusion is the attorney's indication that the Veteran applied for service connection for anxiety and PTSD in 1999. The June 1999 claim form indicated anxiety, only. Regarding how psychiatric claims are now addressed, Clemons was not issued until 2009. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (provided that a veteran could not be held to a medical level of understanding of difference between psychiatric disorders, so that his claim for service connection for one must also be considered a claim for any other psychiatric disability whose presence is supported by the record). A determination of CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. On remand, request that the Veteran/his attorney specify the decision or decisions upon which they are claiming CUE was committed. The Veteran and his attorney should note that an allegation of CUE in the March 2000 rating decision must be addressed as an allegation of CUE in the April 2004 Board decision (the March 2000 rating decision was subsumed by the April 2004 Board decision and may not be collaterally attacked. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998)). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his attorney for clarification of their CUE claim. Request that they provide a statement regarding which AOJ or Board decision they are alleging contained clear and unmistakable error. Is the Veteran alleging CUE in the April 2004 Board decision denying entitlement to service connection for anxiety? The March 2003 rating decision denying entitlement to service connection for PTSD? Or the November 2009 rating decision which granted entitlement to service connection for PTSD, effective November 24, 3008? The Veteran and his attorney should be informed that claims for CUE must be described with some degree of specificity. In this instance, that includes specifying which decision included CUE. 2. Issue a statement of the case (SOC) regarding the Veteran's claim of entitlement to a rating in excess of 70 percent for PTSD. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 3. Then, readjudicate the Veteran's CUE claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case. Allow an appropriate period of time for response. The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs