Citation Nr: 1323674 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-23 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an undiagnosed illness manifested by sleep disturbance, fatigue, and generalized muscle and joint aches. 2. Entitlement to an effective date earlier than October 31, 2005, for the grant of service connection and the assignment of a 30 percent rating for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1971 to July 1971 and from October 1990 to May 1991, with service in the Southwest Asia Theater of operations during the Persian Gulf War from November 1990 to April 1991. He also served in the Louisiana Army National Guard for an unspecified period prior to his first period of active service, between his two periods of active service, and subsequent to his second period of active service until July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and October 2008 decisions rendered by the Gretna, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2012, the Veteran testified during a Board hearing before the undersigned at the RO. The record was held open for 60 days following the hearing to provide the Veteran with additional time and opportunity to submit medical evidence. However, no records have been received. The first issue is recharacterized by the Board from the issues of entitlement to service connection for fibromyalgia and chronic fatigue syndrome to service connection for an undiagnosed illness manifested by sleep disturbance, fatigue, sleep disturbance, and generalized muscle and joint aches at this time in light of the evidence of record. See, November 2009 VA examinations. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the Persian Gulf War. 2. The Veteran does not have a disability manifested by fibromyalgia. 3. The Veteran does not have a disability manifested by chronic fatigue syndrome. 4. The Veteran exhibits objective indications of sleep disturbance, fatigue, and generalized muscle and joint aches, which have been identified as signs and symptoms of an undiagnosed illness. 5. On July 12, 1999, the RO received the Veteran's claim for entitlement to service connection for diarrhea. 6. In an August 2000 rating decision, the RO denied service connection for diarrhea. 7. The Veteran did not file a notice of disagreement or submit additional relevant evidence within one year of the letter notifying him of the August 2000 rating decision; and the effective date became final. 8. On March 1, 2002, 38 C.F.R. § 3.317 was revised to include irritable bowel syndrome as a qualifying chronic disability subject to presumptive service connection for Persian Gulf War veterans. 9. On October 31, 2005, the RO received the Veteran's claim for entitlement to service connection for IBS. 10. In a July 2008 rating decision, the RO granted service connection for IBS on a presumptive basis, effective October 31, 2005, the date of receipt of his service connection claim. CONCLUSIONS OF LAW 1. The criteria for establishment of service connection for an undiagnosed illness manifested by sleep disturbance, fatigue, and generalized muscle and joint aches have been met. 38 U.S.C.A. § 1117 (2002); 38 C.F.R. § 3.317 (2012). 2. The criteria for entitlement to an effective date of October 31, 2004, but no earlier, for the grant of service connection and the assignment of a 30 percent rating for IBS, have been met. 38 U.S.C.A. §§ 5107, 5109A, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.114(a)(3), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claims are rendered moot. Service Connection Claims It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active 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 December 31, 2011. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met. See 38 C.F.R. § 3.317(c) (2012); Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia Theater of operations. The Veteran in this case has been awarded a medal based on such service, according to his DD214. For purposes of § 3.317, there are 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 determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2) (2012). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. Further, laypersons are competent to report objective signs of illness. See Gutierrez v. Principi, 19 Vet. App. 1 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C) (2012). "Objective indications of chronic disability" include 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 be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are 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). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Veteran contends that he has fibromyalgia and chronic fatigue syndrome as a result of his service in the Persian Gulf and exposure to environmental hazards. The Veteran STRs do not show a chronic disability manifested by fibromyalgia or joint pains or chronic fatigue syndrome. An April 1991 demobilization examination report which is negative for any reports of fibromyalgia symptoms or physical examination findings. An April 1991 report of medical history shows that the Veteran again reported that he was in good health. On VA general medical examination in October 1999, the Veteran presented with a history of intermittent vague pain and stiffness mainly in his knees and left wrist for the past four or five years without known precipitating factors. The examiner diagnosed intermittent vague arthralgia in the knees and left wrist and intermittent fatigue without chronic fatigue syndrome. VA treatment records include a July 2000 report which reflects the Veteran's complaint of back and knee pain and fatigue since his Gulf War service. However, he was not diagnosed with fibromyalgia or chronic fatigue syndrome at that time. In statements received in August 2006, the Veteran's wife and son stated that since his discharge from service he had suffered from chronic joint pain and fatigue. On VA fibromyalgia examination in November 2009, the Veteran presented with a history of a vague recollection of joint pains since 1991. In general, he complained of pain in his shoulders, knees, elbows, hip and back. The examiner observed that the Veteran had a history of IBS with diarrhea and poor sleep pattern. However, the examiner diagnosed chronic lumbar strain and stated that the Veteran's history and "PX" did not support a diagnosis of fibromyalgia. The examiner further stated that per the examination, the Veteran did not have a diagnosis of fibromyalgia. On VA chronic fatigue syndrome examination in November 2009, the Veteran presented with a complaint of chronic fatigue syndrome since 1992. He explained that he realized that he was tired all the time and wanted to sit down and went to sleep when he did. He also complained of an occasional sore throat, migratory joint pains, and headaches; constant sleep disturbance; and frequent generalized muscle aches, generalized weakness, and forgetfulness. The examiner diagnosed fatigue of an unknown etiology and explained that sleep deprivation could be the etiology of the Veteran's muscular aches and chronic fatigue. The examiner concluded that the Veteran did not meet criteria for a diagnosis of chronic fatigue syndrome. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013). There is no medical evidence showing that fibromyalgia or chronic fatigue syndrome has been present at any time during the pendency of the claims or even contemporaneous to when the Veteran filed his claims. The report of a current VA examinations shows the Veteran does not have fibromyalgia or chronic fatigue syndrome; and, as noted above, his STRs are negative for any documented symptoms or diagnoses of fibromyalgia or chronic fatigue syndrome. He has accordingly not shown a current disorder for which service connection can be granted, whether on a direct basis or a presumptive basis, including as a medically unexplained chronic multisymptom illness or undiagnosed illness. The Veteran has not presented any competent medical evidence to the contrary. Given such, and as the preponderance of the evidence is against the claims for service connection for fibromyalgia and chronic fatigue syndrome, the claims must be denied. However, the Veteran exhibits objective indications of sleep disturbance, fatigue, and generalized muscle and joint aches, which in this case have been identified as signs and symptoms of an undiagnosed illness pursuant to 38 C.F.R. § 3.317(b). On VA examinations in November 2009, these symptoms, despite physical examinations and laboratory tests, could not be attributed to a known clinical diagnosis. There Board reiterates that the competent and credible lay and medical evidence of record show there are objective indications that sleep disturbance, fatigue, and generalized muscle and joint aches have continued, albeit intermittently, since service discharge. This is buttressed by the November 2009 examination, which specifically diagnosed fatigue of an unknown etiology and explained that sleep deprivation could be the etiology of the Veteran's muscular aches and chronic fatigue. All of this tends to support the notion that the Veteran suffers from a cluster of signs and symptoms, possible related but of unknown etiology, which taken together, manifests an undiagnosed illness as a qualifying chronic disability under 38 U.S.C.A. § 1117 (2002) and 38 C.F.R. § 3.317 (2012). While the evidence is not unequivocal, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Because there are objective indications of qualifying chronic disability (i.e., undiagnosed illness) following the Veteran's service in Southwest Asia, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection for undiagnosed illness manifested by sleep disturbance, fatigue, and generalized muscle and joint aches. 38 C.F.R. § 3.317. As such, the appeal is granted. Earlier Effective Date Claim In the absence of clear and unmistakable error (CUE), a final RO decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 7105, 7111 (West 2002). If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A . There is no such procedure as a freestanding challenge to the finality of a VA decision. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). Further, after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Except as otherwise provided, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2012). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2012). In cases involving new and material evidence, where the evidence is received more than a year after the final disallowance of a claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.156 (b); 3.400(q)(2) (2012). A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Rudd, 20 Vet. App. at 299. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The intent of these provisions was to compensate claimants who might have been unaware or less diligent in filing a claim for benefits that they were otherwise entitled to by enactment of liberalizing legislation. See McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997). The Veteran seeks an effective date of July 12, 1999 for the grant of service connection for IBS. Historically, the Veteran filed an initial claim for service connection for diarrhea which was received by VA on July 12, 1999. An August 2000 rating decision denied service connection for diarrhea. That same month, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision or it would become final. As the Veteran did not appeal the decision and new and material evidence pertinent to the Veteran's claim was not received by VA or constructively in its possession within one year of the August 2000 rating decision, it became final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. Nearly two years after the Veteran's claim was finally denied by VA, the law affecting compensation for disabilities occurring in Persian Gulf War veterans was amended, effective March 1, 2002. 38 U.S.C.A. §§ 1117, 1118 (West 2002). Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, including irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002); 38 C.F.R. § 3.317 (2012). Due to this change in law, service connection may be established for a veteran of the Persian Gulf War who exhibits objective indications of a qualifying "chronic disability" that became manifest either during active 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 December 31, 2011. 38 C.F.R. § 3.317(a)(1) (2002). The Veteran filed a claim for service connection for IBS that was received by VA on October 31, 2005. A March 2006 rating decision denied service connection for IBS. That same month, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision or it would become final. The Veteran filed a notice of disagreement in August 2006. The RO granted the Veteran's service connection claim in a July 2008 rating decision, on a presumptive basis under 38 C.F.R. § 3.317, based on the Veteran's service in the Southwest Asia Theater of operations during the Gulf War, and assigned a 30 percent rating for IBS, effective October 31, 2005. At his March 2012 hearing before the Board, the Veteran's representative stated that IBS was made a presumptive condition in 2002 and noted that the Veteran testified that the Veteran had symptoms of IBS prior to October 2005 effective date. He stated that the effective date should be one year prior to the liberalizing law in 2002. Parenthetically, post-service VA treatment records reflect complaints of diarrhea in October 1999 and a diagnosis of IBS in 2002. The Board observes that in his September 2009 substantive appeal, the Veteran argued that diarrhea is a "major symptom" of IBS and in March 2012 testified that he had diarrhea in 1999 and therefore should be assigned an earlier effective date of July 12, 1999, the date of his initial claim of service connection for diarrhea. The Veteran argues that his effective date should be based on the date that his original claim for service connection was received. However, even if his claim for service connection for IBS had been treated as a request to reopen his previously denied claim for diarrhea, the Veteran's original claim for service connection for diarrhea (filed on July 12, 1999) was denied in a August 2000 rating decision which became final in August 2001. The date of receipt of the Veteran's claim for service connection for IBS is October 31, 2005. There is no evidence or correspondence in the record that was received between the August 2000 rating decision and the October 31, 2005 claim. Therefore, even given these facts, October 31, 2005 would be the appropriate effective date for the grant of service connection for IBS, in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400. In a March 2010 Form 646, the Veteran's representative argued that the VA/RO failed to satisfy the duty to assist in developing the original claim for service connection for diarrhea by not affording the Veteran a VA examination that "would have undoubtedly given him a definitive diagnosis of IBS back in 1999." However, a review of the record shows that the Veteran was in fact provided a VA intestines examination in October 1999 in connection with his claim for benefits which reflects a diagnosis of chronic diarrhea and is negative for any diagnosis of IBS. As such, this argument lacks merit. In addition, the Board finds that there is no basis to extend the effective date for the Veteran's award of service connection for IBS back to the effective date of the underlying regulation upon which service connection was ultimately granted. The record clearly shows that his claim for service connection for IBS was received at the RO on October 31, 2005, more than three years after the effective of the relevant regulation, and there is no evidence of record to show that the Veteran filed any informal or formal claim for service connection for IBS prior to October 2005. However, the Board finds that pursuant to 38 C.F.R. § 3.114(a)(3) (2012), an effective date of October 31, 2004 (one year prior to the date of receipt of his service connection claim), but no earlier, is warranted since the October 31, 2005 claim for service connection for IBS was reviewed at the Veteran's request more than one year after the effective date of the March 2002 regulation upon which service connection was ultimately allowed. Accordingly, given the facts noted above, the Board finds that the criteria for an effective date of October 31, 2004, but no earlier, for the grant of service connection and the assignment of a 30 percent rating for IBS are met. ORDER An effective date of October 31, 2004, but not earlier, for the grant of service connection and the assignment of a 30 percent rating for IBS is granted, subject to the laws and regulations controlling the award of monetary benefits. Service connection for an undiagnosed illness manifested by fatigue, sleep disturbance, and generalized muscle aches and joint pain is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs