Citation Nr: 1310194 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 01-03 638A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for pharyngitis. 2. Entitlement to service connection for chronic disabilities of multiple joints, to include as due to an undiagnosed illness. 3. Entitlement to an increased rating for chronic fatigue syndrome (CFS), rated as 10 percent disabling prior to January 5, 2012 and 40 percent disabling thereafter. 4. Entitlement to an effective date earlier than July 22, 1999 for the award of a 60 percent rating for ankylosing spondylitis. 5. Whether a November 1992 rating decision contained clear and unmistakable error (CUE) in the assignment of a 20 percent initial rating for a low back disability diagnosed as lumbar strain with degenerative joint disease and bilateral leg pain. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran has certified active duty for training (ACDUTRA) service from March 1985 to June 1985 with additional active service from December 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2004, July 2007, and May 2011, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. When the appeal was previously before the Board, the claims for entitlement to service connection for pharyngitis and disabilities of multiple joints were treated as a single issue. The Veteran's claims for service connection for pharyngitis and joint disabilities were filed at different times and pertain to different areas of the body with independent and distinct symptoms. Thus, the Board has determined that the claims are separate and will proceed accordingly. The Board also previously characterized the Veteran's claim for service connection for chronic multiple joint disabilities as a specific claim for "multiple joint degenerative joint disease." After review of the medical and lay evidence of record, the Board finds that the Veteran is actually claiming service connection for nonspecified disorders of various joints, to include arthritis, arthralgias, and myalgias. The Court of Appeals for Veterans Claims (Court) has held that a claim for service connection encompasses all related symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of Clemons, the Board finds that the claim for service connection for multiple degenerative joint disease is more properly characterized as entitlement to service connection for chronic disabilities of multiple joints, to include as due to undiagnosed illness. In an April 2000 rating decision, the RO determined that the Veteran's service-connected lumbar strain with degenerative joint disease and bilateral leg pain was more properly rated as ankylosing spondylitis. The characterization of the disability was changed and an increased 60 percent evaluation was assigned effective July 22, 1999. In a January 2012 statement, the Veteran appears to argue that the April 2000 rating decision committed CUE by improperly severing service connection for the lumbar strain. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for chronic disabilities of multiple joints is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a chronic throat disability other than chronic nonexudative pharyngitis associated with service-connected CFS. 2. The Veteran's CFS manifests signs and symptoms that restrict routine daily activities to 50 to 75 percent of the pre-illness level without periods of incapacitation. 3. The Veteran's ankylosing spondylitis was assigned a 60 percent disability rating effective July 22, 1999; it is not factually ascertainable that the increase in disability occurred prior to October 7, 1999. 4. The November 1992 rating decision's assignment of an initial 20 percent evaluation for a service-connected low back disability was adequately supported by the evidence then of record, considered the correct facts as they then existed, correctly applied statutory or regulatory provisions extant at that time, and did not contain an undebatable error that was outcome determinative. CONCLUSIONS OF LAW 1. A chronic throat disability other than nonexudative pharyngitis was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. For the period prior to January 5, 2012, the criteria for a 40 percent evaluation, but not higher, for service-connected CFS are met. 38 C.F.R. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.88b, Diagnostic Code 6354. 3. For the period beginning January 5, 2012, the criteria for a rating in excess of 40 percent for service-connected CFS are not met. 38 C.F.R. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.88b, Diagnostic Code 6354. 4. The criteria for an effective date earlier than July 22, 1999 for the grant of a 60 percent rating for ankylosing spondylitis have not been met. 38 U.S.C.A. §§ 5110, 7105; 38 C.F.R. § 3.400. 5. The November 1992 rating decision did not contain CUE in the assignment of an initial 20 percent evaluation for a service-connected low back disability diagnosed as a lumbar strain with degenerative joint disease and bilateral leg pain. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.303, 4.73, Diagnostic Codes 5286, 5295 (1992); 38 C.F.R. § 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Pharyngitis The Veteran contends that service connection is warranted for chronic pharyngitis. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). After review of the evidence, the Board finds that the Veteran is already in receipt of service connection for pharyngitis as a manifestation of service-connected CFS and the record does not establish the existence of any other chronic throat disability. The Veteran was awarded service connection for fatigue due to an undiagnosed illness in a September 1997 rating decision with an initial 10 percent evaluation assigned effective November 2, 1994. The disability was recharacterized as CFS in a February 2012 rating decision when the assigned evaluation was increased to 40 percent, effective January 5, 2012. VA's regulations provide for specific criteria for the diagnosis of CFS and specifically include nonexudative pharyngitis as one of the symptoms of the condition. Under 38 C.F.R. § 4.88a, CFS requires the new onset of debilitating fatigue, the exclusion of all other clinical conditions that may produce similar symptoms, and six or more of the following: acute onset of the condition, low grade fever, nonexudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pains, neuropsychological symptoms, or sleep disturbance. In its February 2012 rating decision, the RO noted that the Veteran manifested many of the symptoms associated with CFS, including nonexudative pharyngitis. This condition was considered in the assignment of the current 40 percent evaluation for CFS. In addition, a January 2012 VA examiner specifically found that the Veteran's pharyngitis (characterized by a persistent sore throat) was one of the criteria used to diagnose the condition. Thus, the Board concludes that service connection is already in effect for chronic exudative pharyngitis as a manifestation of CFS. The Board has considered whether service connection is warranted for any other chronic throat disability, but finds that the evidence does not establish the presence of a throat disorders other than pharyngitis. Post-service records document a diagnosis of chronic sore throat in June 1992 and the Veteran was diagnosed with chronic nonexudative pharyngitis upon VA examination in July 1999. The record does not contain any medical evidence of an additional throat disability and the Veteran has not alleged the presence of symptoms other than a chronic sore throat. The medical and lay evidence is therefore against the finding of a chronic throat disability other than exudative pharyngitis. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. Increased Rating CFS Service connection for fatigue due to an undiagnosed illness was granted in a September 1997 rating decision with an initial 10 percent evaluation assigned effective November 2, 1994. In a February 2012 rating decision, the disability was recharacterized as CFS and an increased 40 percent evaluation was assigned effective January 5, 2012. The Veteran contends that an increased rating is warranted for his CFS throughout the claims period as the disability manifests symptoms such as debilitating fatigue that have severely limited his ability to function. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability is rated under Diagnostic Code 6354 for evaluation of CFS. Under this diagnostic code, CFS is rated based on debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent rating is assigned for signs and symptoms of CFS that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms are controlled by continuous medication. A 20 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for signs and symptoms of CFS that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A Note to Diagnostic Code 6354 provides that for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2012). After review of the evidence, the Board finds that a 40 percent evaluation is warranted for the Veteran's CFS throughout the entire claims period. The Veteran has consistently reported experiencing a waxing and waning of symptoms due to CFS and a decrease in activities due to fatigue and other symptoms including fevers, muscle cramps, headaches, and memory and concentration difficulties. He also reported at the July 1999 VA examination that he could not participate in athletics or competitive sports due to fatigue. The Veteran reported that his activities were limited by fatigue, in excess of 50 percent. The examiner did not indicate the level of restriction. Upon VA examination in January 2012, the Veteran was found to experience restriction of his routine daily activities from 50 to 75 percent of the pre-illness level. These reports and findings are consistent with a 40 percent evaluation under Diagnostic Code 6354. The Board has also considered whether a rating in excess of 40 percent is warranted at anytime during the claims period. The January 2012 VA examiner noted that the Veteran did not require continuous medication for CFS and had not experienced any periods of incapacitation. In fact, there is no evidence that the Veteran has required any periods of bedrest and treatment by a physician in response to his CFS. An October 1999 letter from the Veteran's employer indicated that the Veteran had missed two weeks of work due to symptoms associated with CFS, but periods of incapacitation of at least two but less than four weeks total duration per year are contemplated by a 20 percent evaluation, lower than the current 40 percent evaluation assigned the disability. Furthermore, a May 2001 letter from the Veteran's private physician characterized the Veteran's fatigue as well-controlled with diet and exercise with significant fatigue only from time to time. The February 2008 VA examiner also provided an addendum opinion in August 2008 finding that the Veteran's CFS did not impose any limitation of the Veteran's activities. Although the other VA examiners identified some restriction due to CFS, it is clear that the Veteran's disability has not manifested to the severity contemplated by a 60 evaluation as the clinical evidence is of greater probative weight than the lay evidence regarding activity restriction and he doesn't have incapacitating periods. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a rating in excess of 40 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's CFS. The disability is manifested by symptoms such as fatigue, fevers, muscle cramps, headaches, and memory and concentration difficulties that have decreased the Veteran's ability to perform and participate in the activities of daily living. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's CFS and referral for consideration of extraschedular rating is not warranted. Earlier Effective Date Claim Service connection for a lumbar strain with degenerative joint disease and bilateral leg pain was granted in a November 1992 rating decision. An initial 20 percent evaluation was assigned effective May 12, 1991. In April 2000, the RO recharacterized the service-connected disability as ankylosing spondylitis involving the spine and both hips and assigned an increased 60 percent rating effective July 22, 1999. The Veteran contends that an earlier effective date is warranted for the assignment of an increased 60 percent evaluation as ankylosing spondylitis has been present since active duty service and was misdiagnosed by his physicians until 1999. As a preliminary matter, the Board notes that the Veteran has argued that the assignment of the July 22, 1999 effective date for the award of a 60 percent evaluation in the April 2000 rating decision constitutes CUE. The Board finds that this rating decision is not final and therefore cannot be reviewed for CUE. Under 38 C.F.R. § 3.105(a), previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). CUE is a special type of error; it is an error that the claimant alleges was made in a prior rating decision that the claimant did not appeal within the one-year time limit for filing an appeal to the Board. 38 U.S.C.A. §§ 5109A, 7105(b)(1), (c); 38 C.F.R. § 3.105(a). In this case, the Veteran filed a timely appeal of the April 2000 rating decision that awarded an increased 60 percent evaluation for the service-connected lumbar spine disability and assigned the initial effective date which is the subject of this appeal. Hence, the April 2000 rating decision is not a final decision and is not subject to a CUE determination. See Best v. Brown, 10 Vet. App. 322 (1997). The Board will now determine whether an effective date earlier than July 22, 1999 is warranted for the assignment of a 60 percent evaluation for the Veteran's service-connected ankylosis spondylitis. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The Board must first determine the date the Veteran's claim for an increased rating was received. The April 2000 rating decision on appeal determined that the claim for an increased rating for the service-connected low back disability was received on July 22, 1999. A communication from the Veteran was received on this date; however, the Board finds that it does not constitute a claim for an increased rating. VA regulations provide that any communication or action from a claimant indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2012). The July 1999 statement from the Veteran specifically initiated a claim for service connection for degenerative joint disease of multiple joints, but did not indicate intent to apply for increased benefits for an already service-connected disability. Instead, the Veteran only stated, "I am currently rated at 20% service connected for a lumbar spine condition with degenerative joint disease." There is no other mention of the service-connected disability and the Veteran did not include any discussion of the symptoms associated with the disability and whether they had worsened. As the Veteran did not indicate intent to apply for increased VA benefits for his low back disability, the July 1999 communication does not constitute an informal or formal claim. Instead, the Board finds that an October 1999 statement from the Veteran constitutes an informal claim for increased benefits and forms the basis for the April 2000 rating decision. The October 1999 statement includes an in-depth description of the Veteran's service-connected disability, including the recent diagnosis of ankylosis spondylitis, and a discussion of the symptoms associated with the condition. The Veteran also indicated that the current 20 percent evaluation was not sufficient to compensate the disability which resulted in severe pain of the low back, hips, and legs and affected his ability to work. The Board therefore finds that the October 1999 communication from the Veteran is an informal claim for increased benefits. Although the October 1999 statement is not date-stamped by VA to indicate the date it was received, the Veteran dated it October 7, 1999. The Board will accept this date as the date of receipt. As noted above, the effective date for an award of an increased rating is based on the date of receipt of the claim and when the increase in disability occurred. In this case, an effective date earlier than July 22, 1999 is only possible if it is factually ascertainable that the Veteran's disability increased in severity to the level contemplated by a 60 percent evaluation within one year prior to the date of claim, i.e., one year prior to October 1999. 38 C.F.R. § 3.400(o). The April 2000 rating decision assigned a 60 percent evaluation for the Veteran's ankylosing spondylitis under Diagnostic Code 5286 (1999) pertaining to complete bony fixation (ankylosis) of the spine. Under this diagnostic code, a 60 percent evaluation is warranted for ankylosis at a favorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5286. After review of the evidence, the Board finds that the Veteran's disability did not worsen to the level contemplated by a 60 percent rating under Diagnostic Code 5286 in the year prior to October 1999. In fact, the medical and lay evidence does not establish ankylosis of the spine until the VA examination conducted on October 7, 1999. In July 1999, the Veteran was admitted to the Chicago VAMC with complaints of worsening pain in the hips, sacroiliac area, and back. Examination of the spine indicated scoliosis and at discharge the Veteran had some painful internal rotation of the bilateral hips. There were no findings of ankylosis and the Veteran did not report an inability to bend his spine. A VA examination in May 1997 also demonstrated some decreased range of motion of the thoracolumbar spine, but the Veteran clearly retained some useful motion of his back. Furthermore, VA examinations dated in December 1995 and March 1994 demonstrated no limitation to lumbar motion. The first finding of ankylosis in the record dates from the VA examination conducted on October 7, 1999. At that time, the Veteran manifested pain with any bending of the spine. Physical examination showed that no extension was possible and the Veteran's hips demonstrated marked resistance to any motion. The diagnosis was ankylosis spondylitis involving the spine and hips with significant disability. In a March 2000 addendum opinion, the VA examiner noted that ankylosing spondylitis is difficult to diagnosis in the early stages, and the Veteran's low back disorder was mostly likely as not misdiagnosed during active service as a lumbar strain. Therefore, the condition had been present since military service. The Veteran contends that an effective date of May 1991 (the initial effective date for service connection for a low back disability) is appropriate in this case as ankylosing spondylitis was present since active duty service. In support of this argument, he relies on the March 2000 VA addendum opinion noting that the service-connected low back disorder was misdiagnosed as a lumbar strain and ankylosing spondylitis was present during active duty service. Although the record does contain medical evidence indicating that ankylosis spondylitis was present since service, as noted above, there is no medical or lay evidence establishing the presence of fixation of the spine prior to October 1999. Actual fixation of the spine is required for a 60 percent evaluation under Diagnostic Code 5286, and it is therefore clear that the Veteran's disability, no matter the diagnosis, did not most nearly approximate the criteria associated with an increased 60 percent rating prior to the October 1999 VA examination. Accordingly, it is not factually ascertainable that the Veteran's service-connected disability increased to the severity contemplated by a 60 percent rating under Diagnostic Code 5286 until October 7, 1999, the date the Veteran and a medical professional first identified ankylosis of the back. As October 7, 1999 is also the date the Veteran's claim for an increased rating was received, an effective date earlier than July 22, 1999 is not possible. Based on the foregoing, the Board finds that the preponderance of the evidence is against the grant of an earlier effective date for the award of a 60 percent evaluation for ankylosing spondylitis. In fact, the appropriate effective date for the increased rating is October 7, 1999, after the currently assigned effective date of July 22, 1999. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CUE Claim The Veteran contends that the assignment of a 20 percent initial rating for his service-connected low back disability in a November 1992 rating decision was CUE. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The Court has propounded the following three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts as they were known at the time were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 which existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet App. 310, 313- 14 (1992) (en banc). The Court has further stated that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The November 1992 rating decision granted service connection for a low back disability, diagnosed as a lumbar strain with degenerative joint disease and bilateral leg pain, and awarded a 20 percent initial evaluation effective May 12, 1991. The Veteran contends that the RO committed CUE by not assigning an initial 60 percent evaluation for fixation of the spine associated with ankylosing spondylitis. After review of the record, the Board finds the assignment of an initial 20 percent evaluation for the Veteran's low back disability in the November 1992 rating decision was not CUE. In November 1992, the record clearly established a diagnosis of a lumbar strain with degenerative joint disease to account for the Veteran's low back symptoms. Although the Veteran was later diagnosed with ankylosing spondylitis and there is evidence the condition existed since service and was previously misdiagnosed, ankylosing spondylitis was not demonstrated at the time of the November 1992 rating decision. There was also no lay or medical evidence of fixation of the spine of record in November 1992. Thus, the failure of the RO to rate the Veteran's disability as ankylosis is not CUE. Service treatment records document complaints of low back pain beginning during the Veteran's active duty service in Saudi Arabia in April 1991. A December 1991 lumbar spine CT was interpreted by a radiologist as normal, but the Veteran's orthopedist disagreed and diagnosed a herniated lumbar disc. The orthopedist concluded that the Veteran was unfit for military duty and he was sent by air evacuation to Walter Reed Army Medical Center in March 1992. He was admitted for complaints of back and hip pain and examined by the orthopedic, neurology, and rheumatology departments. The Veteran received conservative treatment for mechanical low back pain without a neurological component and was provided physical therapy and pain management. A rheumatology consultation was performed in April 1992 in response to the Veteran's decreased lumbar motion, but there was no evidence of inflammatory spondyloarthropathy. In fact, the examining rheumatologist specifically found that ankylosing spondylitis was unlikely given the Veteran's X-ray results. The Veteran tested positive for HLAB-27 (a gene marker associated with rheumatic disease), but this was characterized as a coincidental finding. The Veteran was discharged from Walter Reed at the end of April 1992 with a diagnosis of mechanical low back pain and was able to pass the requirements for an Army physical fitness test. The post-service medical records dated prior to November 1992 are also negative for findings of ankylosing spondylitis. The Veteran was examined by a VA examiner in February 1992 and the only diagnoses were lumbar muscle spasms, a lumbar sprain, and degenerative changes. Therefore, the record at the time of the November 1992 rating decision did not demonstrate the presence of ankylosing spondylitis. Although a rheumatic condition was suspected during the Veteran's treatment at Walter Reed in April 1992, a rheumatology consultation effectively ruled out the diagnosis of any inflammatory spondyloarthropathy. The Veteran tested positive for HLAB-27, but his health care providers found that this was a coincidental finding only. Furthermore, the February 1992 VA examination did not reveal any findings indicative of ankylosing spondylitis. The Veteran's contentions in this case are based on a March 2000 VA medical opinion noting that ankylosis spondylitis began while he was on active duty and was misdiagnosed as a lumbar strain. However, claims for CUE must be based on the record and law which existed at the time of the prior decision. See Damrel v. Brown, 6 Vet App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet App. 310, 313- 14 (1992) (en banc). Thus, the Board cannot consider the March 2000 VA medical opinion in the current analysis. Accordingly, the November 1992 characterization of the Veteran's lumbar spine disability as a lumbar strain with degenerative joint disease was based on the correct facts as they were known at the time. The Board also finds that the November 1992 rating decision correctly applied the law. An initial 20 percent evaluation was assigned under Diagnostic Code 5295 pertaining to a lumbosacral strain. Under this diagnostic code, a 20 percent rating is assigned with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.73, Diagnostic Code 5295 (1992). Upon VA examination in February 1992, the Veteran demonstrated a full range of lumbar motion, but the examiner also observed pulling of the lumbar muscles and complaints of pain. The RO assigned an initial 20 percent rating, presumably finding that the Veteran's complaints of pain during motion testing and pulling muscles most nearly approximated muscle spasm and a loss of lateral spine motion. The Veteran contends that the RO committed CUE in the November 1992 rating decision by not rating the service-connected low back disability as 60 percent disabling under Diagnostic Code 5286 pertaining to complete bony fixation (ankylosis) of the spine. Under this diagnostic code, a 60 percent evaluation is warranted for ankylosis at a favorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5286. As discussed above, the evidence in November 1992 clearly did not indicate a diagnosis of ankylosing spondylitis. Similarly, there were no findings of ankylosis in the Veteran's service treatment records or in the November 1992 VA examination report. There were also no lay complaints or reports of lumbar ankylosis at the time of the November 1992 rating decision. The Veteran may now disagree with how the evidence was weighed and evaluated by the RO, but an attack on how the facts were weighed at the time of the previous rating decision cannot constitute a valid claim of CUE. See Luallen v. Brown, 8 Vet. App. 92, 96 (1995) (mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process). Given the law in effect during the November 1992 rating decision, there is no showing that the RO committed CUE in the assignment of an initial 20 percent evaluation for the service-connected lumbar strain with degenerative joint disease and bilateral leg pain. The correct facts were before the adjudicators and the law was correctly applied. Therefore, the claim for whether the November 1992 rating decision contained CUE must fail. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the Veteran's claim for CUE in the November 1992 rating decision, the notice and duty to assist provisions of the VCAA are inapplicable to cases involving CUE in prior decisions. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Livesay v. Principi, 15 Vet. App. 165 (2001). The Veteran has also initiated an appeal regarding the effective date assigned to the increased 60 percent rating for his service-connected ankylosing spondylitis in an April 2000 rating decision. The April 2000 rating decision was decided and appealed prior to the enactment of the current § 5103(a) requirements. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), the Court acknowledged that the Veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini II, 18 Vet. App. at 120. The Veteran was given notice in January 2004 that complied with section 5103(a) with respect to the increased rating claim. The claim for an increased rating decided in the April 2000 rating decision is substantiated and the filing of a notice of disagreement does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the assignment of the effective date triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction (AOJ) must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The March 2000 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations used to determine the proper effective date for the Veteran's service-connected ankylosing spondylitis. The appellant was thus informed of what was needed to achieve an earlier effective date. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the assignment of a 60 percent evaluation for ankylosing spondylitis. Regarding the claims for entitlement to service connection for pharyngitis and an increased rating for CFS, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in the January 2004 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in October 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the April 2000 rating decision on appeal was decided prior to the enactment of the VCAA in November 2000. However, the Veteran was eventually "provided the content-complying notice to which he [was] entitled." Pelegrini II, 18 Vet. App. at 122. In addition, the Veteran's claims were readjudicated in February 2012 following the receipt of complete VCAA notice, to include the Dingess elements. The timing deficiency was therefore remedied in light of the readjudication of the claims in the February 2012 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records, and records from the SSA. Additionally, the Veteran was provided proper VA examinations in response to his claims for service connection for pharyngitis and an increased rating for CFS. The Board also finds that VA has complied with the January 2004, July 2007, and May 2011 remand orders of the Board. In response to the Board's remands, the Veteran was provided notice in compliance with the VCAA and VA examinations were conducted in February 2008 and January 2012 to determine the current severity of his CFS. The Veteran's SSA records were also obtained and added to the claims file and his active service was verified by the National Personnel Records Center (NPRC) in October 2007. The AOJ then issued a July 2009 SOC addressing the issues of increased ratings for the service-connected low back disability and dyspnea (with no response from the Veteran) and a July 2009 SSOC addressing the Veteran's contentions related to CUE in the November 1992 rating decision. The case was then readjudicated in a February 2012 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a chronic throat disability other than pharyngitis is denied. Entitlement to an increased rating of 40 percent, but not higher, for service-connected CFS for the period prior to January 5, 2012 is granted. Entitlement to a rating in excess of 40 percent for service-connected CFS for the period beginning January 5, 2012 is denied. Entitlement to an effective date earlier than July 22, 1999 for the award of a 60 percent rating for ankylosing spondylitis is denied. The claim for whether a November 1992 rating decision contained CUE in the assignment of a 20 percent initial rating for a low back disability diagnosed as lumbar strain with degenerative joint disease and bilateral leg pain is denied. REMAND The Veteran contends that service connection is warranted for disabilities of the shoulders, elbows, wrists, hips, knee, and ankles, as they were incurred due to active service in Southwest Asia during the Persian Gulf War. The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for chronic disabilities of multiple joints, to include as due to an undiagnosed illness. Specifically, a remand is required to comply with the Board's previous May 2011 remand orders regarding a VA examination and medical opinion. In May 2011, the Board remanded the claim for service connection for chronic disabilities of multiple joints and ordered that the Veteran should be provided a VA examination and medical opinion addressing the nature and etiology of the claimed joint disorders. In January 2012, the Veteran was provided a VA general medical examination and referred for additional fibromyalgia, CFS, and rheumatology examinations. Although all three examinations were conducted (and identified the presence of multi-joint pain and trigger points), none of the examining physicians provided a medical opinion as requested by the Board's May 2011 remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). The claim must be remanded to allow for an examination and medical opinion that discusses the nature and etiology of the claimed chronic disability of multiple joints, to include whether it is due to an undiagnosed illness. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination with an appropriate examiner to determine the nature and etiology of the claimed chronic disability of multiple joints. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. After physically examining the Veteran and reviewing the claims file, the examiner should address the following questions: a) Are the Veteran's complaints of joint pain in the shoulders, elbows, wrists, hips, knee, and ankles symptoms of a chronic orthopedic disability such as degenerative joint disease? The Board notes that the Veteran was diagnosed with degenerative joint disease of the hips in July 1997 and X-rays throughout the claims file have continued to note the presence of bilateral hip arthritis. b) If a chronic orthopedic disability is diagnosed (to include bilateral hip arthritis), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the disability is etiologically related to any incident of the Veteran's active duty service, to include service in Southwest Asia? c) If a chronic orthopedic disability is diagnosed (to include bilateral hip arthritis), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the disability was caused or aggravated by the Veteran's service-connected ankylosing spondylitis? d) If a chronic orthopedic disability is not identified by the examiner, are the Veteran's complaints of joint pain in the shoulders, elbows, wrists, hips, knee, and ankles manifestations of a service-connected disability, to include fibromyalgia and CFS? e) Finally, if a chronic orthopedic disability is not identified by the examiner, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's arthralgias of the shoulders, elbows, wrists, hips, knee, and ankles are objective indications of an undiagnosed illness other than service-connected fibromyalgia and CFS? The examination report should include a full rationale (i.e. explanation of the examiner's conclusions) with specific reference to evidence in the claims file. 2. Readjudicate the claim on appeal. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs