Citation Nr: 18147769 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-43 271 DATE: November 6, 2018 ORDER Entitlement to an effective date prior to June 22, 2010 for the grant of entitlement to service connection for fibromyalgia is denied. FINDINGS OF FACT 1. A final June 1996 rating decision denied the claim for entitlement to service connection for back, neck, and knee disorders. 2. Following the final June 1996 rating decision, no claim was received for entitlement to service connection for fibromyalgia until June 22, 2010. CONCLUSION OF LAW The criteria for an effective date prior to June 22, 2010 for the grant of entitlement to service connection for fibromyalgia are not met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018); 38 C.F.R. §§ 3.1(p), 3.155(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1990 to June 1991, including service in Southwest Asia, with additional service in the Army Reserve. Earlier Effective Dates 38 U.S.C. § 5110(a) states that “[u]nless specifically provided otherwise…the effective date of an award based on…a claim reopened after final adjudication…shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 C.F.R. § 3.400 states that “[e]xcept as otherwise provided, the effective date of an evaluation and award of…compensation…based on…a claim reopened after final disallowance…will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400(r) states regarding the effective date for reopened claims “[d]ate of receipt of claim or the date entitlement arose, whichever is later.” The regulation in effect as applicable in this case (the regulation was subsequently amended effective in March 2015) defined a “claim” as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2010). With regard to informal claims, the regulation in effect as applicable in this case (the regulation was also subsequently amended effective in March 2015) stated that “[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the [VA]...may be considered an informal claim. Such informal claim must identify the benefit sought.” See 38 C.F.R. § 3.155(a) (2010). Entitlement to an Effective Date Prior to June 22, 2010 for the Grant of Entitlement to Service Connection for Fibromyalgia In a June 1996 rating decision, the RO denied the claim of service connection for neck, back, and knee muscle pain and provided the Veteran with notice of the decision and his appeal rights. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a). The record does not indicate that the Veteran submitted a timely notice of disagreement or other indication of disagreement with the June 1996 denial. The Veteran does not claim otherwise. Thus, the June 1996 rating decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. The effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2) and (q)(2). VA received the Veteran’s application to reopen the claim for what is now classified as fibromyalgia on June 22, 2010. In a February 2016 rating decision, the RO granted entitlement to service connection for fibromyalgia and assigned a 40 percent disability rating, effective June 22, 2010. The Veteran asserts the effective date for the grant of service connection should date back to March 1996, the date the Veteran was diagnosed with fibromyalgia. See December 2016 Notice of Disagreement, and March 2017 correspondence. While sympathetic to the Veteran’s contentions, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. There are only two exceptions to the rule of finality of VA decisions, that is, challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). The Board has considered the Veteran’s general contentions that service connection should be effective the date of his fibromyalgia diagnosis. It is noteworthy, that the Veteran’s arguments do not amount to an allegation of CUE. In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be “some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error.” Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity. Id. The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. Here, it is clear the Veteran never with any specificity alleged CUE with the past rating decision, but has only contended that he is entitled to an earlier effective date because he was diagnosed with fibromyalgia prior to his current effective date of June 22, 2010. As noted above, the effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, June 22, 2010, is the earliest effective date possible under the relevant laws and regulations for the Veteran’s fibromyalgia claim and the claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel