Citation Nr: 1602131 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 15-36 599 ) DATE ) ) THE ISSUE Whether the February 2007 Board decision denying entitlement to service connection for fibromyalgia contains clear and unmistakable error (CUE). (The issues of entitlement to service connection for a bilateral hip disorder, a bilateral shoulder disorder, a neck disorder, an upper back disorder, a liver disorder, and whether new and material evidence has been presented to reopen the claim for entitlement to service connection for fibromyalgia are addressed in a separate Board decision). REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1998 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 written statement alleging CUE in the February 2007 decision of the Board which denied entitlement to service connection for fibromyalgia. In an October 2015 letter, the Veteran was advised that the CUE motion was placed on the Board's docket and that the rules relating to CUE motions could be found at 38 U.S.C.A. § 7111 and 38 C.F.R. §§ 20.1400-1411. To date no response from the Veteran or her representative has been received. FINDINGS OF FACT 1. In a final February 2007 decision, the Board denied the issue of service connection for fibromyalgia. 2. At the time of the February 2007 decision, the correct facts as they were known at the time were before the Board and there is no showing that the Board misapplied the existing statutory or regulatory provisions. CONCLUSION OF LAW The criteria for CUE in the Board's February 2007 decision, that denied service connection for fibromyalgia, have not been met. 38 U.S.C.A. §§ 5107, 5110, 7105, 7111 (West 2014); 38 C.F.R. §§ 20.1400-1411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party alleges CUE in a February 2007 Board decision that denied entitlement to service connection for fibromyalgia. VA regulations provide that a motion for revision of a Board decision based on CUE must include the name and file number of the Veteran, the date of the Board decision, and must set forth clearly and specifically the alleged error of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Furthermore, the Federal Circuit has held that filings from veterans must be read liberally. Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (discussing pro se filings). Therefore, although the Veteran's June 2015 CUE motion does not clearly specify the error of fact or law, reading her claim liberally the Board finds the procedural requirements for filing of a CUE Motion have been met. 38 C.F.R. § 20.1404(a),(b). A final decision by the Board is subject to revision on the grounds of CUE. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. There is a three-prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Russell, 3 Vet. App. at 313-14. Therefore, the doctrine of resolving reasonable doubt in favor of the Veteran does not apply to allegations of CUE. 38 C.F.R. § 3.105(a); Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). As will be discussed below, the Board finds no evidence of CUE in the prior February 2007 Board decision. At the time of the February 2007 Board decision, the evidence of record included the Veteran's application for benefits, service treatment records, VA and private medical treatment records, and written statements from the Veteran. The Veteran has not alleged any additional evidence existed at the time which should have been considered by the Board. Instead, in a May 2013 written statement the Veteran asserted the August 2002 letter from Dr. P.S. diagnosing her with fibromyalgia was overlooked by the Board in the February 2007 decision. Review of the record reflects this letter was not specifically addressed in the February 2007 denial. However, the Board is not required to specifically address all evidence of record. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007). Moreover, the Board finds this evidence was specifically addressed in the January 2006 remand, and in fact served as one of the primary reasons the Board remanded the issue for a VA examination at that time. Therefore, although this piece of evidence was not specifically addressed in the February 2007 decision, this letter was included in the evidence before the Board and has been considered by the Board. Furthermore, even if the August 2002 letter from Dr. P.S. was not considered by the Board in the February 2007 decision, this error would not have manifestly changed the outcome. This letter from Dr. P.S. diagnosing the Veteran with fibromyalgia is dated six months after her active duty service, and does not provide any opinion relating her diagnosed fibromyalgia to her active duty service. Therefore, this letter alone does not establish the elements of service connection had been met. Accordingly, the evidence does not establish the outcome of the February 2007 would have been manifestly different if this August 2002 letter had been explicitly addressed by the Board, and therefore does not constitute CUE. Additionally, in her June 2015 written statement the Veteran alleged she was clearly diagnosed with fibromyalgia when she initially filed her previous claim in 2003. The Board agrees; the evidence establishes the Veteran was diagnosed with fibromyalgia by 2003. Indeed, in the prior February 2007 decision, the Board also specifically found the Veteran was diagnosed with fibromyalgia. Therefore, the prior February 2007 decision directly considered the Veteran's current diagnosis of fibromyalgia. To the extent that the prior February 2007 decision did not explicitly state the Veteran was diagnosed with fibromyalgia as early as 2003, again the evidence does not establish such an error would have manifestly changed the outcome. The Veteran was already separated from active duty service by 2003, and therefore any diagnosis that year would not have established an in-service diagnosis. Accordingly, any failure to specifically address a diagnosis as early as 2003 in the prior February 2007 Board decision does not constitute CUE. Based on the foregoing, the Board does not find any CUE in the February 2007 Board decision which denied entitlement to service connection for fibromyalgia. Accordingly, the Veteran's motion is denied. 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. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the Court has held that the VCAA does not apply to CUE actions. Baldwin v. Principi, 15 Vet. App. 302 (2001). Accordingly, the duties to notify and assist need not be discussed. ORDER The motion to revise the February 2007 Board decision on the basis of CUE is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs