Citation Nr: 1009751	
Decision Date: 03/15/10    Archive Date: 03/24/10

DOCKET NO.  09-29 600	)	DATE
	)
	)


THE ISSUES

1.  Whether a July 15, 2005, decision of the Board of 
Veterans' Appeals (Board), which denied entitlement to 
service connection for weakness and lack of energy, claimed 
as a qualifying chronic disability under 38 C.F.R. § 3.317, 
should be reversed on the grounds of clear and unmistakable 
error (CUE).

2.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for memory loss, 
claimed as a qualifying chronic disability under 38 C.F.R. § 
3.317, should be reversed on the grounds of CUE.

3.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for insomnia, 
claimed as a qualifying chronic disability under 38 C.F.R. § 
3.317, should be reversed on the grounds of CUE.

4.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for sore muscles, 
claimed as a qualifying chronic disability under 38 C.F.R. § 
3.317, should be reversed on the grounds of CUE.

5.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for joint aches, 
claimed as a qualifying chronic disability under 38 C.F.R. § 
3.317, should be reversed on the grounds of CUE.

6.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for a skin 
disability, claimed as intertrigo and tinea cruris, should be 
reversed on the grounds of CUE.

7.  Whether a July 15, 2005, decision of the Board, which 
denied entitlement to service connection for a psychiatric 
disability, to include depression and anxiety, should be 
reversed on the grounds of CUE.


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1951 to April 
1958 and from September 1990 to May 1991, including service 
in the Southwest Asia theater of operations from November 
1990 to April 1991.

This matter is before the Board as an original action on the 
motion of the Veteran in which he alleges CUE in a July 15, 
2005, Board decision that denied entitlement to service 
connection for weakness and lack of energy, memory loss, 
insomnia, sore muscles, joint aches, a skin disability, and a 
psychiatric disability.  

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In a July 15, 2005, decision, the Board denied service 
connection for weakness and lack of energy; however, the 
correct facts, as they were known at the time of the July 15, 
2005, decision were before the Board, and the statutory or 
regulatory provisions extant at the time were correctly 
applied.

2.  In a July 15, 2005, decision, the Board denied service 
connection for memory loss; however, the correct facts, as 
they were known at the time of the July 15, 2005, decision 
were before the Board, and the statutory or regulatory 
provisions extant at the time were correctly applied.

3.  In a July 15, 2005, decision, the Board denied service 
connection for insomnia; however, the correct facts, as they 
were known at the time of the July 15, 2005, decision were 
before the Board, and the statutory or regulatory provisions 
extant at the time were correctly applied.

4.  In a July 15, 2005, decision, the Board denied service 
connection for sore muscles; however, the correct facts, as 
they were known at the time of the July 15, 2005, decision 
were before the Board, and the statutory or regulatory 
provisions extant at the time were correctly applied.

5.  In a July 15, 2005, decision, the Board denied service 
connection for joint aches; however, the correct facts, as 
they were known at the time of the July 15, 2005, decision 
were before the Board, and the statutory or regulatory 
provisions extant at the time were correctly applied.

6.  In a July 15, 2005, decision, the Board denied service 
connection for a skin disability; however, the correct facts, 
as they were known at the time of the July 15, 2005, decision 
were before the Board, and the statutory or regulatory 
provisions extant at the time were correctly applied.

7.  In a July 15, 2005, decision, the Board denied service 
connection for a psychiatric disability; however, the correct 
facts, as they were known at the time of the July 15, 2005, 
decision were before the Board, and the statutory or 
regulatory provisions extant at the time were correctly 
applied.


CONCLUSIONS OF LAW

1.  The July 15, 2005, Board decision denying entitlement to 
service connection for weakness and lack of energy was not 
clearly and unmistakably erroneous.  38 U.S.C.A. § 7111 (West 
2002); 38 C.F.R. §§ 20.1400, 20.1403 (2009).

2.  The July 15, 2005, Board decision denying entitlement to 
service connection for memory loss was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 
38 C.F.R. §§ 20.1400, 20.1403 (2009).

3.  The July 15, 2005, Board decision denying entitlement to 
service connection for insomnia was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 
38 C.F.R. §§ 20.1400, 20.1403 (2009).

4.  The July 15, 2005, Board decision denying entitlement to 
service connection for sore muscles was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 
38 C.F.R. §§ 20.1400, 20.1403 (2009).

5.  The July 15, 2005, Board decision denying entitlement to 
service connection for joint aches was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 
38 C.F.R. §§ 20.1400, 20.1403 (2009).

6.  The July 15, 2005, Board decision denying entitlement to 
service connection for a skin disability was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 
38 C.F.R. §§ 20.1400, 20.1403 (2009).

7.  The July 15, 2005, Board decision denying entitlement to 
service connection for a psychiatric disability was not 
clearly and unmistakably erroneous.  38 U.S.C.A. § 7111 (West 
2002); 38 C.F.R. §§ 20.1400, 20.1403 (2009).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  
However, VA's duties to notify and assist are not applicable 
to CUE claims.  See Livesay v. Principi, 15 Vet. App. 165, 
178-79 (2001) (en banc).  

As noted above, the Veteran served on active duty from 
January 1951 to April 1958 and from September 1990 to May 
1991.  The service treatment records, which were associated 
with the claims folder and considered by the Board in its 
July 15, 2005, decision, reveal no complaints of, treatment 
for, or diagnosis of weakness or lack of energy, memory loss, 
insomnia, sore muscles, joint aches, skin symptomatology, or 
psychiatric symptomatology.

Following separation from service, the Veteran was afforded a 
VA Persian Gulf Examination in May 1994.  The Veteran 
indicated that he was stationed in Saudi Arabia during his 
service in the Southwest Asia theater of operations and was 
exposed to heavy smoke from the oil and gas fires.  He 
reported that his left big toe had become intermittently 
painful and swollen since his time in Saudi Arabia, and that 
he occasionally experienced numbness in his left second and 
third toes.  He also noted occasional pain in the muscles of 
his forearms, legs, and neck.  He further reported 
occasional, short-lived bouts of anxiety and depression.  The 
Veteran's spouse indicated that his memory was not as good as 
it used to be.  

In May 1996, the Veteran filed claims for service connection 
for "rashes, sore muscles, weakness, no energy, and memory 
loss," which he believed were caused by exposure to "nerve 
chemicals and oil well smoke."

The Veteran was afforded a VA general examination in 
September 1996, at which time his skin rash was diagnosed as 
mild intertrigo and his toe pain was diagnosed as 
osteoarthritis possibly secondary to an old injury.  He was 
also diagnosed with "anxiety and forgetfulness."

The Veteran was also afforded a VA mental disorders 
examination in September 1996, at which time the examiner 
noted that the Veteran related that his psychiatric symptoms 
and physical symptoms appeared to be most compatible with 
what is known as "Gulf War Syndrome."  The examiner noted 
that there was no reason to doubt the Veteran's reported 
history, but failed to provide any diagnosis of his own.  

The Veteran was afforded a VA mental disorders examination in 
January 1997, at which time he was diagnosed with cognitive 
disorder and dyssomnia.  VA treatment records from this time 
revealed ongoing treatment for depression and hypertension.  

The RO denied all of the Veteran's claims in a September 2001 
rating decision.  Specifically, the RO denied his claim for a 
skin rash because the disability resulted from a known 
clinical diagnosis of intertrigo which neither occurred in 
nor was caused or aggravated by service.  His claims for 
weakness and lack of energy, memory loss, insomnia, and sore 
muscles were denied because no evidence was found of chronic, 
compensable disabilities.  His claim for a psychiatric 
disorder was denied because the disability resulted from a 
known clinical diagnosis of dysthymic disorder which neither 
occurred in nor was caused or aggravated by service.  His 
claim for joint aches was denied because his left big toe 
pain and swelling resulted from a known clinical diagnosis of 
osteoarthritis which neither occurred in nor was caused or 
aggravated by service, and there was no additional evidence 
of chronic, compensable disabilities manifested by joint 
aches.  

The Veteran perfected an appeal to the Board and gave 
testimony at a December 2002 Travel Board hearing.  He 
testified that all of his medical disorders began 
approximately "a year or two" after returning from Saudi 
Arabia.  

In July 2003, the Board remanded the case to the RO so that 
the Veteran could be afforded an appropriate VA examination 
to determine the nature and etiology of his claimed fatigue, 
skin disorder, muscle pain, joint pain, neurologic disorder, 
neuropsychological disorder, and sleep disturbances, as well 
as a VA psychiatric examination to determine the nature and 
etiology of any psychiatric disorder. 

The Veteran was afforded a VA mental disorders examination in 
December 2003, at which time he was diagnosed with major 
depressive disorder and some impairment of his memory for 
remote and recent events.  The examiner opined that the 
etiology of the major depressive disorder was most probably 
biological in nature in the form of decreased 
neurotransmitters, particularly serotonin, epinephrine, and 
dopamine.  Furthermore, the examiner elaborated that the 
Veteran's symptomatology, to include depression, poor 
appetite, sleep disturbances, difficulty concentrating, and 
low energy level, began in 1996.  He noted that people with 
depression also suffer from memory and concentration 
problems.  

The Veteran was afforded a VA general examination in January 
2004, at which time he was diagnosed with type II diabetes 
mellitus, bilateral hammer toe deformity and mild hallus 
valgus with mild functional impairment secondary to the 
deformity, intermittent pain of the cervical spine with 
degenerative spondylosis, muscle spasms, and bilateral 
neuroforaminal encroachment, osteoarthritis of the bilateral 
knees, and chronic intermittent tinea cruris.  

Private treatment records dating from 1996 to 2004 were also 
received during this period, showing treatment for low back 
and hip pain, high blood pressure, diabetes, and cataracts.  

Considering all of the aforementioned evidence, the Board 
denied service connection for the conditions listed on the 
title page in a July 15, 2005, decision.  Citing the December 
2003 VA mental disorders examination report, the Board found 
that the Veteran's fatigue, weakness, memory loss, insomnia, 
and lack of energy were attributed the Veteran's clinically 
diagnosed major depressive disorder, which was unrelated to 
service.  With respect to his claims for sore muscles and 
joint aches, the Board found that these disorders were 
attributed to the Veteran's clinically diagnosed 
osteoarthritis, degenerative spondylosis, and arthritis in 
his bilateral feet and knees, which were unrelated to 
service.  With respect to his claim for a skin condition, the 
Board found that this disorder was attributed to the 
Veteran's clinically diagnosed intertrigo and tinea cruris, 
which were unrelated to service.  With respect to his claim 
for a psychiatric condition, the Board found that this 
disorder was attributed to the Veteran's clinically diagnosed 
major depressive disorder, which was unrelated to service.  

In January 2009, the Veteran filed to reopen his previously-
denied service connection claims, which were again denied in 
an October 2009 rating decision that the Veteran has not yet 
appealed.  

The Veteran now alleges CUE in the Board's July 15, 2005, 
decision, on the basis that his former Veterans' service 
organization representatives failed to pursue his due process 
rights.  Specifically, he asserts that the documents from the 
Department of Defense in July 1997 and December 2000 as well 
as his own lay statements should have provided all the 
evidence needed to show that he was exposed to sarin and 
cyclosarin in service and grant his claims.  

Under 38 U.S.C.A. § 7111, a prior Board decision may be 
reversed or revised on the grounds of CUE.  Motions for 
review of prior Board decisions on the grounds of CUE are 
adjudicated pursuant to the Board's Rules of Practice at 38 
C.F.R. §§ 20.1400-1411.  The motion alleging CUE in a prior 
Board decision must set forth clearly and specifically the 
alleged CUE, or errors of fact or law in the Board decision, 
the legal or factual basis for such allegations, and why the 
result would have been different but for the alleged error.  
38 C.F.R. § 20.1404(b).

The determination of whether a prior Board decision was based 
on CUE must be based on the record and the law that existed 
when that decision was made.  38 C.F.R. § 20.1403(b)(1).  CUE 
is a very specific and rare kind of error.  It is the kind of 
error, of fact or 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.  Generally, either 
the correct facts, as they were known at the time, were not 
before the Board, or the statutory and regulatory provisions 
extant at the time were incorrectly applied.  38 C.F.R. 
§ 20.1403(a); see also Fugo v. Brown, 6 Vet. App. 40, 43 
(1993).

To warrant revision of a Board decision on the grounds of 
CUE, there must have been an error in the Board's 
adjudication of the appeal that, had it not been made, would 
have manifestly changed the outcome when it was made.  If it 
is not absolutely clear that a different result would have 
ensued, the error complained of cannot be CUE.  38 C.F.R. § 
20.1403(c); see also Bustos v. West, 179 F.3d 1378, 1380-81 
(Fed. Cir.) (expressly holding that in order to prove the 
existence of CUE, a claimant must show that an error occurred 
that was outcome-determinative, that is, an error that would 
manifestly have changed the outcome of the prior decision).

Examples of situations that are not CUE include a new medical 
diagnosis that "corrects" an earlier diagnosis considered 
in a Board decision; the Secretary's failure to fulfill the 
duty to assist; and disagreement as to how the facts were 
weighed or evaluated.  38 C.F.R. § 20.1403(d).  CUE does not 
include the otherwise correct application of a statute or 
regulation where, subsequent to the Board decision, there has 
been a change in the interpretation of the statute or 
regulation.  38 C.F.R. § 20.1403(e).  

Here, as a threshold matter, the Board finds that the 
arguments advanced by the Veteran allege CUE with the 
requisite specificity.  See 38 C.F.R. § 20.1404(b).  

At the time of the July 15, 2005, Board decision, the laws 
and regulations concerning the issue of entitlement to 
service connection were essentially the same as now.  Service 
connection could be established for disability resulting from 
personal injury suffered or disease contracted in line of 
duty, or for aggravation of a pre-existing injury suffered or 
disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 
1131 (West 2002); 38 C.F.R. § 3.303 (2004).  Regulations also 
provided that service connection could be granted for any 
disease diagnosed after discharge when all the evidence, 
including that pertinent to service, established that the 
disease was incurred in service.  38 C.F.R. § 3.303 (2004).  
If the disorder was a specified chronic disease, such as a 
psychosis, service connection could have been granted if it 
were manifest to a degree of 10 percent within the 
presumptive period; the presumptive period for a psychosis 
was one year from the date of service separation.  38 C.F.R. 
§ 3.307 (2004).

In addition, because the Veteran served in the Southwest Asia 
theater of operations during the Persian Gulf War, service 
connection may have also been established under 38 C.F.R. § 
3.317.  Under that section, service connection was warranted 
for a Persian Gulf Veteran who exhibited objective 
indications of a qualifying chronic disability that became 
manifest during active military, naval or air service in the 
Southwest Asia theater of operations during the Persian Gulf 
War, or to a degree of 10 percent or more not later than not 
later than December 31, 2006.  See 38 C.F.R. § 3.317(a)(1) 
(2004).  

For purposes of 38 C.F.R. § 3.317, there were three types of 
qualifying chronic disabilities:  (1) an undiagnosed illness; 
(2) a medically unexplained chronic multi symptom illness; 
and (3) a diagnosed illness that the Secretary determined in 
regulations prescribed under 38 U.S.C.A 1117(d) warranted a 
presumption of service connection.

An undiagnosed illness was defined as a condition that by 
history, physical examination and laboratory tests could not 
be attributed to a known clinical diagnosis.  In the case of 
claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 
38 C.F.R. § 3.117, unlike those for "direct service 
connection," there was no requirement that there be 
competent evidence of a nexus between the claimed illness and 
service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.  
Further, lay persons were competent to report objective signs 
of illness.  Id.  To determine whether the undiagnosed 
illness manifested to a degree of 10 percent or more the 
condition must have been rated by analogy to a disease or 
injury in which the functions affected, anatomical location 
or symptomatology were similar.  See 38 C.F.R. § 3.317(a)(5) 
(2004).

A medically unexplained chronic multi symptom illnesses was 
one defined by a cluster of signs or symptoms, and 
specifically included chronic fatigue syndrome, fibromyalgia, 
and irritable bowel syndrome, as well as any other illness 
that the Secretary determined met the criteria in paragraph 
(a)(2)(ii) of this section for a medically unexplained 
chronic multi symptom illness.

A "medically unexplained chronic multi symptom illness" 
meant a diagnosed illness without conclusive pathophysiology 
or etiology that was characterized by overlapping symptoms 
and signs and had features such as fatigue, pain, disability 
out of proportion to physical findings, and inconsistent 
demonstration of laboratory abnormalities.  Chronic 
multisymptom illnesses of partially understood etiology and 
pathophysiology were not considered medically unexplained.  
38 C.F.R. § 3.317(a)(2)(ii) (2004).

There were no diagnosed illnesses determined by the Secretary 
to warrant a presumption of service connection under 38 
C.F.R. § 3.317(a)(2)(C) (2004).

"Objective indications of chronic disability" included both 
"signs," in the medical sense of objective evidence 
perceptible to an examining physician, and other, non-medical 
indicators that are capable of independent verification.  38 
C.F.R. § 3.317(a)(3).  Signs or symptoms that may have been 
manifestations of undiagnosed illness or medically 
unexplained chronic multi symptom illness included, but were 
not limited to, the following:  (1) fatigue; (2) signs or 
symptoms involving skin; (3) headache; (4) muscle pain; (5) 
joint pain; (6) neurologic signs or symptoms; (7) 
neuropsychological signs or symptoms; (8) signs or symptoms 
involving the respiratory system (upper or lower); (9) sleep 
disturbances; (10) gastrointestinal signs or symptoms; (11) 
cardiovascular signs or symptoms; (12) abnormal weight loss; 
and (13) menstrual disorders.  38 C.F.R. § 3.317(b) (2004).  

For purposes of section 3.317, disabilities that existed for 
six months or more and disabilities that exhibited 
intermittent episodes of improvement and worsening over a 
six-month period were considered chronic.  The six-month 
period of chronicity was measured from the earliest date on 
which the pertinent evidence established that the signs or 
symptoms of the disability first became manifest.  38 C.F.R. 
§ 3.317(a)(4) (2004).

After a careful review of the record before VA on July 15, 
2005, the Board concludes that that there was a tenable basis 
for the July 15, 2005, decision.  Therefore, because there 
was no 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 be manifestly different but for such error, the 
decision was not clearly and unmistakably erroneous.  In 
reaching this conclusion, the Board observes that the 
evidence of record at the time of the July 15, 2005, decision 
was correctly reported.  In addition, the pertinent statutory 
and regulatory provisions extant at that time were correctly 
applied.

As discussed above, the Veteran's service treatment records 
were negative for complaints of, treatment for, or diagnoses 
of weakness or lack of energy, memory loss, insomnia, sore 
muscles, joint aches, skin symptomatology, or psychiatric 
symptomatology.  There was no evidence of toe pain and 
numbness; occasional pain in the muscles of his forearms, 
legs, and neck; short-lived bouts of anxiety and depression; 
or memory loss until his May 1994 VA Persian Gulf 
Examination.  By the time of the July 15, 2005, Board 
decision, all of the Veteran's claimed disabilities were 
attributed to known clinical diagnoses such as major 
depressive disorder, osteoarthritis, degenerative 
spondylosis, intertrigo, and tinea cruris.  Furthermore, none 
of these disabilities were shown to have been incurred in or 
resulting from service.  To the contrary, the Veteran 
testified that they began "a year or two" after service.  

As such, the medical evidence of record supports the Board's 
findings that the Veteran's weakness and lack of energy, 
memory loss, insomnia, sore muscles, joint aches, skin 
disability, and psychiatric disability are unrelated to 
service and are not qualifying chronic disabilities under 38 
C.F.R. § 3.317.  Moreover, there was no medical evidence of 
record contradicting either the clinical findings discussed 
above or the Board's conclusion.

In addition, notwithstanding the Veteran's contentions to the 
contrary, the Board cited and applied the pertinent laws and 
regulations extant at the time.  Thus, there was clearly a 
sound basis for the Board's July 2005 decision, and 
accordingly, it could not be clearly and unmistakably 
erroneous.

In sum, there is no indication that the correct facts, as 
they were known at the time, were not before the Board, or 
that the statutory or regulatory provisions extant at the 
time were incorrectly applied.  38 C.F.R. § 20.1403(a); see 
also Russell.  As such, the Board's July 15, 2005, decision 
was not clearly and unmistakably erroneous.


ORDER

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for weakness and lack of energy is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for memory loss is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for insomnia is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for sore muscles is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for joint aches is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for a skin disability is denied.

The Veteran's motion to revise or reverse the July 15, 2005, 
Board decision that denied his claim of service connection 
for a psychiatric disability is denied.



                       
____________________________________________
	STEVEN D. REISS
	Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs