Citation Nr: 20023052 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 14-22 652 DATE: April 2, 2020 ORDER Service connection for a psychiatric disorder, currently manifested by obsessive compulsive disorder (OCD) and somatic disorder, is granted. Service connection for a respiratory disorder, to include asthma, bronchitis, upper respiratory infections, and pneumonia, is granted. Service connection for right wrist pain, diagnosed as carpal tunnel syndrome, is granted. Service connection for left wrist pain, diagnosed as carpal tunnel syndrome, is granted. Service connection for arthritis of the left ankle (also claimed as left ankle pain) is granted. Service connection for arthritis of the right ankle (also claimed as right ankle pain) is granted. Service connection for left elbow strain (also claimed as left elbow pain) is granted. Service connection for right elbow strain (also claimed as right elbow pain) is granted. Service connection for left hip arthritis (also claimed as left hip pain) is granted. Service connection for right hip strain (also claimed as right hip pain) is granted. Service connection for arthritis of the left knee (also claimed as left knee pain) is granted. Service connection for arthritis of the right knee (also claimed as right knee pain) is granted. Service connection for arthritis of the left hand (also claimed as swelling and pain of all fingers), including degenerative joint disease of the fifth finger, is granted. Service connection for arthritis of the right hand (also claimed as swelling and pain of all fingers), including degenerative joint disease of the fifth finger, is granted. Service connection for plantar fasciitis of the left foot (also claimed as swelling and foot pain) is granted. Service connection for plantar fasciitis of the right foot (also claimed as swelling and foot pain) is granted. Service connection for T7 anterior compression with intervertebral disc syndrome, lumbar spine, with radiculopathy (also claimed as thoracolumbar pain of spine and lumbago), is granted. Service connection for a cervical spine disorder, diagnosed as arthritis, is granted. Service connection for fibromyalgia is granted. Service connection for irritable bowel syndrome (IBS) is granted. The motion to revise or reverse on the basis of clear and unmistakable error (CUE) a February 1990 rating decision denying service connection for obsessive compulsive neurosis, multiple arthritis, and fibromyalgia of the upper and lower extremities, is denied. FINDINGS OF FACT 1. A current psychiatric condition manifested by OCD and somatic disorder, which was not noted at service entrance, preexisted service but is not shown by clear and unmistakable evidence to have not been aggravated during service. 2. A current respiratory disorder, to include asthma, bronchitis, upper respiratory infections, and pneumonia, which was not noted at service entrance, preexisted service but is not shown by clear and unmistakable evidence to have not been aggravated during service. 3. The Veteran’s current conditions involving right wrist pain; left wrist pain; the left ankle (also claimed as left ankle pain); the right ankle (also claimed as right ankle pain); left elbow strain (also claimed as left elbow pain); right elbow strain (also claimed as right elbow pain); left hip arthritis (also claimed as left hip pain); right hip strain (also claimed as right hip pain); the left knee (also claimed as left knee pain); the right knee (also claimed as right knee pain); the left hand (also claimed as swelling and pain of all fingers); arthritis of the right hand (also claimed as swelling and pain of all fingers); the left foot (also claimed as swelling and foot pain); plantar fasciitis of the right foot (also claimed as swelling and foot pain); the lumbar spine with radiculopathy (also claimed as thoracolumbar pain of spine and lumbago); and the cervical spine, began during service. 4. The Veteran’s fibromyalgia is related to service. 5. The Veteran’s current IBS, which did not clearly and unmistakably preexist service, manifested during service and is related to his current condition. 6. Although the Veteran’s complete service treatment records and service personnel records were not in the claims file, it is not clear that the correct facts, as known at the time, were not before the VA adjudicators in February 1990, or that the statutory and regulatory provisions extant at the time were incorrectly applied. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, currently manifested by OCD and somatic disorder, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a respiratory disorder, to include asthma, bronchitis, upper respiratory infections, and pneumonia, have been met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for right wrist pain, diagnosed as carpal tunnel syndrome, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left wrist pain, diagnosed as carpal tunnel syndrome, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for arthritis of the left ankle (also claimed as left ankle pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for arthritis of the right ankle (also claimed as right ankle pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for left elbow strain (also claimed as left elbow pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for right elbow strain (also claimed as right elbow pain), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for left hip arthritis (also claimed as left hip pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for right hip strain (also claimed as right hip pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for service connection for arthritis of the left knee (also claimed as left knee pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for service connection for arthritis of the right knee (also claimed as right knee pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 13. The criteria for service connection for arthritis of the left hand (also claimed as swelling and pain of all fingers), including degenerative joint disease of the fifth finger, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 14. The criteria for service connection for arthritis of the right hand (also claimed as swelling and pain of all fingers), including degenerative joint disease of the fifth finger, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 15. The criteria for service connection for plantar fasciitis of the left foot (also claimed as swelling and foot pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 16. The criteria for service connection for plantar fasciitis of the right foot (also claimed as swelling and foot pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 17. The criteria for service connection for T7 anterior compression with intervertebral disc syndrome, lumbar spine, with radiculopathy (also claimed as thoracolumbar pain of spine and lumbago), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 18. The criteria for service connection for a cervical spine disorder, diagnosed as arthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 19. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 20. The criteria for service connection for IBS have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 21. The February 1990 RO rating decision denying service connection for obsessive compulsive neurosis, multiple arthritis, and fibromyalgia of the upper and lower extremities was not clearly and unmistakably erroneous. 38 U.S.C. § 5110; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A rating decision was previously issued in February 1990 denying claims of service connection for a psychiatric condition, fibromyalgia, and arthritis of multiple joints. The earlier claim is being reconsidered pursuant to 38 C.F.R. § 3.156(c) in light of service personnel records received in September 2012. The claims of service connection for a respiratory disorder and psychiatric disorder have been recharacterized on the title page of this decision to best reflect the broad scope of the issues. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). In December 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in June 2015. A transcript of the hearing has been associated with the claims file. Following the last adjudication of the case by the agency of original jurisdiction (AOJ) in a January 2015 supplemental statement of the case (SSOC), the Veteran submitted additional pertinent evidence in support of his appeal. The Veteran filed his substantive appeal in June 2014. The Veteran did not request in writing that the AOJ initially review such evidence. Therefore, under the law in effect at that time, this new evidence is subject to initial review by the Board. See 38 U.S.C. § 7105(e)(1); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law No. 112-154, 126 Stat. 1165. The Board also obtained two medical expert opinions from the Veterans Health Administration (VHA) in October 2018. Later in October 2018, the Veteran responded that he did not waive RO consideration of this evidence and requested the case to be remanded to the RO for initial consideration. The Board recognizes his request, but finds no prejudice in proceeding in light of the favorable disposition on all relevant issues herein below. See 38 C.F.R. § 20.1304(c); see also 38 C.F.R. § 20.903(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231 (2012). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for a psychiatric disorder, to include depressive disorder, not otherwise specified (NOS) with anxiety disorder NOS, obsessive compulsive disorder (OCD), and panic disorder (also claimed as depression, OCD, anxiety disorder and panic disorder), Regarding the claim of service connection for a psychiatric disorder, the question for the Board is whether the Veteran has a current disability that, even though preexisting service, was not aggravated therein and is therefore at least as likely as not related to in-service symptomatology. The Board concludes that the Veteran has a current disability that is related to symptoms manifesting prior to and during service. 38 U.S.C. §§ 1111, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A VA examination in September 2013 confirmed current diagnoses of depressive disorder, NOS; anxiety disorder NOS; panic disorder; and OCD. Thus, the question becomes whether the current disability is related to service. On this question the evidence indicates a preexisting condition. At service entrance, the Veteran’s history was noted to include “history of coun[s]eling 1981, twice, no problem found.” The examiner found that the medical records disclosed a diagnosis of obsessive compulsive neurosis, but it was determined that “in the absence of any further trouble of this kind, I feel this man should now be qualified.” The examiner marked the clinical psychiatric assessment as “normal.” Noting only a history of a condition at the time of the entrance examination, such as here, does not constitute a notation of a preexisting condition. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). Accordingly, this Veteran is presumed sound as to a psychiatric condition at service entrance. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096. However, there is clear and unmistakable evidence that the obsessive compulsive disorder existed prior to service. The Veteran’s STRs undebatably show that he was hospitalized prior to service for symptoms diagnosed as obsessive compulsive neurosis. Pre-service medical records show that he was hospitalized in November 1974 at age 14 for symptoms diagnosed as a “fairly severe obsessive compulsive disorder.” He was found to be “deeply troubled” with symptoms including “blind staggers” and recurrent syncopal episodes for one year. He also was found to be preoccupied with his bodily symptoms, with multiple physical complaints including dysuria and frequency, and constipation and rectal bleeding. He also voiced complaints regarding school problems. The Board obtained an expert medical opinion in July 2018. The expert concluded that it was most likely that a psychiatric condition remained at the time the Veteran entered active service in August 1986. Accordingly, there is clear and unmistakable evidence of a preexisting condition. Because it is clear and unmistakable that the condition preexisted service entrance, the question becomes whether there is clear and unmistakable evidence that the condition was not aggravated during service. On this question, the STRs show treatment in August 1986 for joint complaints, but it was also noted that he had a “chronic obsession with all organ systems/bodily functions with possible/sensible through disorder.” He had a bone scan in December 1988 where it was commented that the Veteran had “deep psychological problems I feel.” This evidence indicates symptoms during service. Relevant to whether this represented an aggravation during service, the Veteran was seen during his first month of service in August 1986 for complaints related to multiple joints. His prior history of obsessive-compulsive neurosis was noted at that time, plus a chronic obsession with all organ systems/bodily functions with possible “seasible” thought disorder (the handwritten notation is difficult to read). Later during service, the Veteran was seen for ongoing complaints related to multiple joints, and a doctor in December 1988 remarked that the Veteran had “deep psychological problems I feel.” An undated private (civilian) consultation in the STRs also reflects an assessment of “obsessive compulsive neuritis (controlled).” These STRs indicate ongoing symptoms during service. The Veteran underwent a VA examination in September 2013. The VA examiner concluded that it was clear and unmistakable that the condition existed prior to service, but was “less likely as not aggravated beyond its natural progression during service and/or by his complaints of and treatment he received for this condition during service.” Here, the examiner’s conclusion is not legally adequate to find that the condition was clearly and unmistakably not aggravated because VA has the burden of proof in establishing by “affirmative evidence” that there was no aggravation. The VA examiner’s assessment that aggravation during service was “less likely as not” does not meet this burden of proof. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The July 2018 VHA expert concluded that if the Veteran’s condition worsened during service, “the exacerbation is well within what would be expected for the natural trajectory of these conditions.” However, the expert clarified that “[i]t is unlikely that his mental condition worsened beyond the natural progress of the disease, but it cannot be said that the condition was clearly and unmistakably not aggravated during service.” According to the expert, “[t]he lack of medical documentation speaking specifically to poor mental health is interpreted as evidence that it is very unlikely that his condition worsened during service.” Overall, this evidence indicates very strongly that there was not any worsening or that any worsening during service was due to the natural progress of the disease. But, it is not clear and unmistakable evidence. See Horn, 25 Vet. App. at 235. Accordingly, the presumption of soundness is not rebutted. Consequently, the disease that manifested during service is presumed to have been incurred during service, satisfying the second element of service connection. See Simmons v. Wilkie, 30 Vet. App. 267, 275 (2018). The remaining question is whether any current diagnosis is related to the in-service symptoms. See Gilbert, 26 Vet. App. at 53-54. On this question, the July 2018 VHA expert opined that it is less likely as not that the Veteran’s depressive disorder NOD or unspecified depressive disorder had its onset during service. The expert explained that “no such concerns appeared on the Veteran’s 1989 MEB assessments and there are no records indicating depression during service.” The expert reasoned that “[g]iven this Veteran’s pre-military psychiatric history and its acknowledgement in several military progress notes, it is likely that mental health conditions would have been addressed during the MEB process.” Therefore, the VHA expert explained, “silence on the issue of mental health disorders is interpreted in the negative.” Moreover, the expert opined, the Veteran’s depressive disorder “is not necessarily a manifestation of the Veteran’s obsessive-compulsive disorder and somatic disorder, as depression can come about from many causes, including job loss, divorce, genetics, etc.” The expert gave a similar opinion and rationale for panic disorder. With regard to OCD and somatic symptom disorder, the VHA expert opined that these “conditions in their current form represent the present manifestations of the same conditions as described in 1974.” The expert’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VHA expert did not specifically address anxiety disorder, but his response to this question states that the September 2013 VA examination diagnosed three disorders: depressive disorder, panic disorder, and OCD. Thus, based on an overall reading the opinion, it is assumed that the examiner intended to include anxiety disorder together with the negative nexus opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (A VA examination report “must be read as a whole” to determine the examiner’s rationale.) Likewise, the VHA expert relied on an absence of evidence in the STRs to reach the negative opinion regarding the depressive disorder and panic disorder. The expert laid a proper foundation in doing so by explaining that any such symptomatology would have been addressed during the MEB process if it had existed at that time. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); see also AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7) As such, the most probative evidence of record establishes a nexus between service and the diagnosed OCD and somatic disorder, but not any of the remaining diagnoses. Accordingly, service connection is warranted to this extent. 2. Service connection for a respiratory disorder, to include asthma, bronchitis, upper respiratory infections, and pneumonia, Regarding the claim of service connection for a respiratory disorder, the question for the Board is whether the Veteran has a current disability that, even though preexisting service, was not aggravated therein and is at least as likely as not related to in-service symptomatology. The VA medical records show treatment for various respiratory conditions, including bronchitis (for example, in March 2005, December 2009), pneumonia (September 2004); mild reactive airway disease (August 2005), asthma (July 2014), and upper respiratory infections (March 2010). During treatment in January 2013, the Veteran reported that he got bronchitis or pneumonia once or twice a year. The Veteran’s service treatment records (STRs) do not note a respiratory disorder at service entrance in December 1985. He gave a history of pneumonia prior to service in 1976, but this was noted to have “no sequelae.” Noting only a history of a condition at the time of the entrance examination does not constitute a notation of a preexisting condition. McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). As such, the Veteran is presumed sound at service entrance. This presumption of sound condition is not rebutted. Although there is clear and unmistakable evidence that a condition preexisted service, there is not clear and unmistakable evidence that the preexisting condition was not aggravated during service. More specifically, in October 1986, approximately two months into his service, the Veteran presented for unrelated complaints, but reported shortness of breath and difficulty breathing, feeling faint, and tightness in his chest with a history prior to service, which the Veteran felt might be related to the last job he held prior to service. As a matter of law, the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of an appellant’s own admissions during clinical evaluations of a preservice history of symptoms. Thus, in the absence of any contention that the Veteran never made the statements attributed to him (reporting preexisting symptoms), those statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012) (citing Doran v. Brown, 6 Vet. App. 283, 286 (1994)). Accordingly, the Board finds the Veteran’s complaints in October 1986 to be clear and unmistakable evidence that a condition preexisted service. With regard to aggravation during service, the Veteran complained during service in October 1986 of shortness of breath and difficulty breathing, feeling faint, and tightness in his chest. More recently, in April 1996, the Veteran reported experiencing exertional wheezing following vigorous exercise when he was in the military. A VA examiner in September 2013 opined that “[s]hortness of breath and difficulty breathing are non-specific symptoms that could be caused by a number of other conditions not only asthma, ie. allergies, deconditioning, recent illness, etc.” The VA examiner’s opinion indicates that the Veteran’s in-service symptoms might not have been related to a respiratory condition. However, the VA examiner’s opinion was not absolute and indubitable. Thus, it does not constitute clear and unmistakable evidence that the in-service symptoms were not respiratory symptoms. Likewise, the two indications of symptoms during service are not direct evidence of aggravation. However, they are sufficient evidence to establish that there was not clear and unmistakable evidence that asthma was not aggravated during service. As such, the presumption of soundness is not rebutted. The Veteran is therefore entitled to a finding of in-service aggravation of the preexisting respiratory condition. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The question thus becomes whether the current disability is related to the in-service symptoms. See id. at 53-54. On this question, the September 2013 VA examiner found that the Veteran had a history of asthma diagnosed in January 2005 with a reported onset in October 1986. The VA examiner concluded that the Veteran’s current asthma was less likely than not related to the complaints during service. The examiner explained that the complaints of shortness of breath and difficulty breathing, as shown in the STRs, “are non-specific symptoms that could be caused by a number of other conditions not only asthma, ie. allergies, deconditioning, recent illness, etc.” Conflicting with the VA examiner’s conclusions, the evidence indicates ongoing symptoms after service. He was treated in February 1992 for a history of adult bronchitis/pneumonia. This was less than three years after his separation from service in August 1989, which is some indication that his symptoms continued after service. Likewise, he then had treatment in April 1996 where he reported exertional wheezing during service with no symptoms “for years,” but “has had recurrent bronchitis.” The remaining medical records also support ongoing symptoms after service. He had treatment in March 1997, June 1997, February 2000, November 2000, and ongoing treatment once or twice per year up to present. Overall, when resolving all reasonable doubt in the Veteran’s favor, the Board finds this evidence to indicate a nexus between the symptoms during and after service. Accordingly, the evidence is in equipoise on all material elements of the claim, and service connection is warranted. 3. Service connection for right wrist pain 4. Service connection for left wrist pain 5. Service connection for arthritis of the left ankle (also claimed as left ankle pain) 6. Service connection for arthritis of the right ankle (also claimed as right ankle pain) 7. Service connection for left elbow strain (also claimed as left elbow pain) 8. Service connection for right elbow strain (also claimed as right elbow pain) 9. Service connection for left hip arthritis (also claimed as left hip pain) 10. Service connection for right hip strain (also claimed as right hip pain) 11. Service connection for arthritis of the left knee (also claimed as left knee pain) 12. Service connection for arthritis of the right knee (also claimed as right knee pain) 13. Service connection for arthritis of the left hand (also claimed as swelling and pain of all fingers) 14. Service connection for arthritis of the right hand (also claimed as swelling and pain of all fingers) 15. Service connection for plantar fasciitis of the left foot (also claimed as swelling and foot pain) 16. Service connection for plantar fasciitis of the right foot (also claimed as swelling and foot pain) 17. Service connection for T7 anterior compression with intervertebral disc syndrome, lumbar spine, with radiculopathy (also claimed as thoracolumbar pain of spine and lumbago) 18. Service connection for cervical arthralgia and cervical strain (also claimed as cervical spine pain/neck pain and cervicalgia) As issues 3-18 are related, the Board will address them together. The Veteran contends that his multiple joint conditions first started during service. See Board Hr’g Tr. 4-9, 16. Alternatively, a secondary theory of entitlement is reasonably raised by the record. The VA and private (non-VA) medical records show the Veteran has a current disability in each of the claimed joints. Regarding the cervical spine, a March 2013 VA examination diagnosed arthritis of the cervical spine. Regarding the wrists, the Veteran was diagnosed with bilateral carpal tunnel syndrome at the March 2013 VA examination. Regarding the hands, the March 2013 VA examiner diagnosed diffuse arthritis in the hands. An October 2013 VA examiner added bilateral degenerative joint disease (DJD) of the fifth fingers. Regarding the elbows, the March 2013 VA examination diagnosed bilateral elbow strain. Regarding the lumbar spine, the March 2013 VA examination diagnosed T7 anterior compression diagnosed 1989, degenerative disc disease, and intervertebral disc syndrome (IVDS) of the lumbar spine with radiculopathy. Regarding the hips, the March 2013 VA examination diagnosed left hip arthritis and right hip strain. Regarding the knees, the March 2013 VA examination diagnosed arthritis of the bilateral knees. Regarding the ankles, the March 2013 VA examination diagnosed arthritis. In August 2014, a diagnosis of Achilles tendon insertion enthesopathy was also made. Regarding the feet, the March 2013 VA examination diagnosed bilateral plantar fasciitis. Thus, current diagnoses are established for each of the claimed joints. With regard to a nexus, an October 2013 VA examiner gave negative opinions for each of the diagnoses. However, the July 2018 VHA expert reviewed the October 2013 examiner’s opinion that the Veteran’s mental health issues “appear to continue to be driving force behind his medical issues.” The expert felt that even though this opinion applied to fibromyalgia, “the same reasoning can be applied to his joint/ankle complaints.” The expert concluded that “the Veteran’s joint/orthopedic complaints, in the absence of objective findings, are conceptualized as just some of a long progression of manifestations of the Veteran’s somatic symptom disorder and [OCD].” The examiner stated that “these symptomatic complaints (joint/orthopedic discomfort with bilateral wrists, bilateral elbows, bilateral ankles, bilateral hips, bilateral knees, bilateral hands, bilateral feet, lumbar spine, and cervical spine) are at least as likely as not caused by or the result of his diagnosed somatic symptom disorder and [OCD.]” The examiner indicated that these conditions were not clearly and unmistakably not aggravated by service. The examiner then reiterated that the conditions “are most likely symptoms of his somatic symptom disorder and [OCD].” The examiner clarified that this conclusion was based on an assumption that “there is insufficient medical basis to account for the Veteran’s reported symptomatology with respect to his joint/orthopedic discomfort.” At present, the evidence of record does not include a sufficient medical basis to account for the Veteran’s symptomatology. As such, the VHA expert’s opinion stands. To this extent, it supports a direct grant of service connection. The examiner indicated that the symptoms of the diagnoses are manifestations of his now-service-connected psychiatric disorder. Although this would otherwise support a grant of secondary service connection, the VHA expert’s opinion ultimately places the onset of this symptomatology in service by operation of the presumptions of soundness. As such, the Board finds that service connection is warranted, and the claims are granted. 19. Service connection for fibromyalgia-type syndrome and multiple arthritis (also claimed as arthralgia, arthritis, joint pain and multiple joint issues), After careful consideration, the Board finds that service connection is warranted for fibromyalgia. The Veteran is currently diagnosed with the condition as established by a March 2013 VA examination. Thus, a current disability is shown. Also, the Veteran was treated during service for complaints diagnosed as “fibromyalgia type syndrome.” He was first seen in August 1986 for complaints of joint pain. These complaints continued, and in November 1987 it was found that he had joint pain, rule out rheumatoid arthritis. On evaluation in December 1987 and again in April 1988, his joint pain was found to have questionable etiology. Accordingly, he was referred for a Rheumatology consultation, which occurred in May 1988. The impression was Reiter’s syndrome “probable.” He was seen again for joint pain in May 1988 and in June 1988 at which times the assessment was “possible” Reiter’s syndrome. In August 1988, he was seen for complaints of pain in all joints, and the assessment was multiple arthralgias of questionable etiology. On consultation for similar complaints in March 1989, the assessment was multiple arthralgia with no obvious cause, rule out fibromyalgia type syndrome. He also underwent a private evaluation during service, which resulted in an assessment of fibromyalgia type syndrome. This same assessment was reflected in a May 1989 Medical Evaluation Board (MEB) report. He then underwent a Physical Evaluation Board (PEB) proceeding in June 1989, which diagnosed fibromyalgia of the upper and lower extremities without objective physical findings. This evidence establishes an in-service incurrence of the disease. Finally, a nexus to service is made as likely as not. On this question, there is some conflicting evidence. Favorable to the claim, the March 2013 VA examiner fully evaluated the Veteran and came to a diagnosis of fibromyalgia. The VA examiner concluded that the diagnosis was at least as likely as not related to service. The VA examiner explained that the Veteran complained of multiple episodes of myalgia and arthralgia, and the records indicated that the complaints did start during active duty. Unfavorable to the claim, the Veteran underwent a VA examination in October 1989, which was approximately two months after his service separation. The VA examiner’s diagnosis was “[a]lleged history of ‘arthralgias and myalgias’ as indicated by historical accounts given by [the V]eteran without evidence of any activity concerning any of the abnormalities of bones, joints, or muscles at this time.” This opinion has limited probative value as the VA examiner specifically commented at two different places in the examination report that no STRs were available to review. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) Also unfavorable, a VA examiner in October 2013 gave a negative opinion indicating that the Veteran’s fibromyalgia is less likely than not related to service. The VA examiner gave an extensive rationale, including an opinion that the Veteran was never formally diagnosed with fibromyalgia during service. The examiner explained that the diagnosis of “fibromyalgia-type” syndrome during service is not the same as being diagnosed with fibromyalgia “in today’s medical arena.” The VA examiner summarized that the Veteran did not have fibromyalgia per se in service. According to the examiner, the Veteran had arthralgias with no objective active findings, and no X-ray or lab abnormalities that would yield a diagnosis, and the prevailing evidence was that his subjective/somatic symptoms were due to a pre-existing mental health condition. The VA examiner felt that the mental health issues since service appeared to continue to be the driving force behind his medical issues, and no fibromyalgia had been diagnosed. The October 2013 VA examiner’s opinion is somewhat probative, but the assessment has limited probative weight because the VA examiner’s factual predicate is inaccurate and incomplete. The VA examiner commented that “no fibromyalgia has been diagnosed.” This is inaccurate, as shown by the March 2013 VA examiner’s diagnosis of fibromyalgia. Otherwise, the October 2013 VA examiner did not undertake an independent work-up to rule in or out the diagnosis. Overall, the Board finds that the October 2013 VA examiner’s opinion, while somewhat probative, has reduced probative value for these reasons. See Nieves-Rodriguez, 22 Vet. App. at 304. Overall, the Board can identify no compelling reason to find the unfavorable opinions more probative than the favorable opinion on the nexus element. Especially as it pertains to the October 2013 VA examiner’s opinion, both VA examiners considered the same facts, which led them to different conclusions. Therefore, based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts. Thus, overall the evidence is in equipoise on the nexus element. Therefore, all elements of the claim are in equipoise, and service connection for fibromyalgia is granted. 20. Service connection for irritable bowel syndrome (IBS) Service connection for IBS is also warranted. A VHA expert reviewed the Veteran’s case in August 2018. The expert carefully identified and explained the diagnostic criteria for IBS. The expert also reviewed the facts of this Veteran’s case. The expert noted that the Veteran was not worked up for all other potential causes for his gastrointestinal symptoms, but found several factors favoring a diagnosis of IBS. Hence, the examiner opined that the Veteran’s symptoms were potentially consistent with a diagnosis of IBS, although she clarified that she could not say with any certainty “given the fact that his symptoms are very common GI symptoms that could be explained by multiple potential etiologies, and given the lack of a comprehensive history.” Consistent with the expert’s summary, the Board finds that the available medical records are not conclusive. After service, a private (non-VA) consultation in June 1997 included complaints of diarrhea. At a March 1999 emergency room admission, he was noted to have history of IBS. He was also seen after service for intestinal amyloidosis. During a Hematology/Oncology consultation in October 1999, it was noted that the Veteran had been having symptoms of diarrhea for approximately the past two years for which a colonoscopy was performed in August 1998. It was further noted that gross findings at that time included a sessile polyp in the cecum, nodular mucosa in the ilium, and AV malformation in the mid transverse colon with no evidence of inflammatory bowel disease at that time. It was found that further testing was needed. At a subsequent consultation in February 2001, he was seen because he now complained of bowels moving every half hour to hour and that he needed a note for his employer. The prior colonoscopy was noted to have shown amyloid material. It was noted that he was now employed as a telemarketer, and he was going to the bathroom so often that his productivity had been affected and his supervisors were requesting medical intervention. He stated at that time that the frequency of bowel movements had been going on for a few years. He did not present for follow-up in June 2001, but it was recorded that he had had an incidental finding of a localized amyloid that was not causing him any systemic symptoms. He then presented for private treatment in February 2002 for chronic diarrhea, which was noted to have been worked up at VA “without clear etiology.” On follow-up in March 2002, it was noted that he had a history of IBS. At VA in June 2005, a further Hematology/Oncology consultation noted that his diarrhea had resolved with diet change. The assessment was amyloid with no symptoms for 6 years, which was probably a localized process due to chronic inflammation. Despite this indication that his symptoms had resolved, he continued to present for treatment of such symptoms. He was seen at an emergency room in September 2008. A mental health evaluation in October 2012 noted IBS with diarrhea for which he often needed to shower afterwards. At an emergency room in June 2013, he had respiratory complaints, but also abdominal bloating, discomfort, and intermittent diarrhea, which was assessed as possibly gas trap relating to his abdominal symptomatology and possibly irritable bowel. At present, the Board finds that this evidence, consistent with the VHA expert’s conclusions, establishes a current diagnosis to at least the as likely as not standard. Hence, a current diagnosis is shown. With regard to in-service incurrence, there is some indication of a pre-existing disease. Pre-service medical records show that he was hospitalized in November 1974 at age 14 for symptoms diagnosed as a “fairly severe obsessive compulsive disorder.” During that hospitalization, he had multiple physical complaints, including constipation and rectal bleeding. It was found that he was preoccupied with his bodily symptoms. He was also shown to have well-healed scars from a prior abdominal hernia surgery. At his service entrance examination in December 1985, there was no indication of any relevant symptoms or complaints. The hernia scars were noted, and his stomach was checked for ulcer, but none was found. During service, the Veteran was seen for mental health symptoms, including in August 1986, when it was noted that he had a chronic obsession with all organ systems/bodily functions. He was also seen in August 1986 for multiple complaints, including nausea and diarrhea for one week, which were diagnosed as a viral illness. In October 1986, he was seen for complaints of abdominal pain with nausea and pain at the site of the prior hernia repair post-exercise. Finally, he was seen for complaints in August 1988 of diarrhea on and off for 3 years. (The Board notes that these symptoms would have preexisted his entrance into service by approximately one year.) In May 1989, at a Medical Evaluation Board proceeding, it was found that he had no gastrointestinal complaints. Because the December 1985 service entrance examination is silent, the presumption of sound condition attaches. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096. The pre-service medical records show pertinent complaints. As such, the Board asked the VHA expert to address whether the medical records demonstrated a preexisting manifestation of his current disease. The expert responded that, taking into account his overall symptom history, it does appear that whatever chronic condition he suffered from later in life during service did most likely begin prior to service. With regard to whether the preexisting condition worsened during service, the VHA expert found that it did appear that the chronic condition did in fact worsen during service. The expert noted the Veteran’s report of an increase in frequency of diarrhea without reports of this same frequency earlier. The expert also noted that he began to complain of more abdominal bloating, and abdominal pain associated with diarrhea during service. The expert made clear that, presuming the IBS diagnosis, symptoms were typically episodic and could be exacerbated by both dietary factors as well as by stress/anxiety. According to the expert, the disease is not typically progressive, but rather chronic and intermittent, but the condition can certainly be exacerbated by poorly controlled psychiatric disease, psychosocial stressors (including work stress), and other factors. With regard to both questions, the examiner clarified that there was at least some evidence in the record to support a conclusion that his condition began prior to his active service and worsened during service, but these determinations could not be made with reasonable certainty by her or any provider due to the limited records/symptom history available. The Board finds that this evidence does not rebut the presumption of soundness. The VHA expert’s opinion in particular shows that there is a strong likelihood that his condition preexisted service. This is not clear and unmistakable evidence, however. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). Hence, the first prong of the presumption of soundness is not rebutted, and the presumption of soundness remains in effect. See Horn, 25 Vet. App. at 235. Because the Veteran is presumed sound at service entrance, the disease, which manifested in service, is deemed incurred in service. See Simmons v. Wilkie, 30 Vet. App. 267, 275 (2018). With regard to whether the current diagnosis is related to the in-service symptoms, a veteran must establish that a current disability is related to the in-service injury or disease even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or to have been found to have been actually incurred in service). Gilbert v. Shinseki, 26 Vet. App. 48, 53-54 (2012) (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009)(“The presumption of soundness . . . does not relieve a veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.”)), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Here, the VHA expert opined that it is certainly possible that his condition started during service. The expert explained that he reported only diarrhea prior to service and not the other symptoms. The expert explained that she believed it was more likely that the condition began prior to service and was exacerbated by the stress of service and progression of his psychiatric disorders. The expert’s opinion establishes a nexus to service. The expert did not explicitly state such an opinion, but an overall reading of this opinion makes it clear that the expert believed the Veteran’s condition to either having started prior to service or during service. The expert strongly emphasized that the condition likely existed prior to service and was worsened therein. As explained, the critical fact, at this point, is that the VHA expert felt the condition was related to his earlier symptoms. Hence, by operation of the presumption of soundness, this establishes a nexus to service. In light of the foregoing, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence is in a state of relative equipoise on all material elements of the claim, including the nexus requirement. Accordingly, the claim is granted. Clear and Unmistakable Error 21. Whether a clear and unmistakable error (CUE) exists in a February 1990 rating decision denying service connection for obsessive compulsive neurosis, multiple arthritis, and fibromyalgia of the upper and lower extremities The Veteran contends that there was CUE in a February 1990 rating decision where it denied service connection for obsessive compulsive neurosis, multiple arthritis, and fibromyalgia of the upper and lower extremities. A. Applicable Law A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE, except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting “manifestly changed the outcome” language in Russell, supra). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). B. Discussion In this case, the Board finds that there was not CUE in the February 1990 rating decision. As indicated, the Veteran’s contention is that there was CUE because the RO decided the claims without having his complete STRs or any of his service personnel records (SPRs) available to review. See Board Hr’g Tr. 19; April 2014 representative statement. He is correct that the complete STRs and SPRs were not of record. The February 1990 rating decision cited STRs from August 1986 to August 1989. Those STRs included a May 1989 Medical Evaluation Board (MEB) report. The STRs did not include a June 1989 Physical Evaluation Board (PEB) report. He is also correct that his SPRs were not of record. However, the omission of the STRs and SPRS from the record constituted a failure on the part of the RO to fulfill its statutory duty to assist the Veteran with the development of facts pertinent to the claims. This does not constitute CUE. See Caffrey, 6 Vet. App. at 384. The Veteran further argues that there was CUE because the service department found that his fibromyalgia was incurred in the line of duty and discharged him with severance pay, which was not put into effect by the RO. See Board Hr’g Tr. 20. Currently, the claims file contains a copy of the June 1989 PEB report. That report documents the service department’s finding that the Veteran’s “fibromyalgia of the upper and lower extremities without objective physical findings” was incurred in the line of duty and was the proximate result of performing duty. His DD Form 214 reflected a discharge due to disability on severance pay with a 10 percent disability level. The service department’s line of duty finding, as set forth in the PEB, was binding on VA. See 38 C.F.R. § 3.1(m); Stover v. Mansfield, 21 Vet. App. 485, 489-90 (2007); Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993). The discharge with severance pay was not binding on VA. See 38 U.S.C. § 5304; 38 C.F.R. § 3.700(a)(3). There cannot be CUE in the RO’s failure to put it into effect, however, because a CUE finding must be based on the record as it existed at the time of the February 1990 rating decision, and the PEB report was not of record in February 1990. The evidence of record, such as the May 1989 MEB report and the Veteran’s DD Form 214, identified fibromyalgia and that the Veteran was being discharged due to disability on severance pay with a 10 percent disability level. Those documents did not reflect the service department’s line of duty finding that he was being discharged due to fibromyalgia. Accordingly, there was no error on the RO’s part in failing to put the service department’s line of duty determination into effect. Moreover, it is not absolutely certain that the outcome would have been different even if the PEB report had been a part of the record. In addition to the PEB’s finding, the STRs of record at that time showed a diagnosis of obsessive compulsive neurosis, which preexisted service; a diagnosis of “fibromyalgia type syndrome”; and multiple physical profiles for “arthritis.” The May 1989 MEB reflected an assessment of “fibromyalgia type syndrome.” These positive findings notwithstanding, the post-service evidence did not establish a current diagnosis or a nexus to service. See Stover, 21 Vet. App. at 490. As it pertains to fibromyalgia and arthritis, the Veteran underwent a VA examination in October 1989, which found “no indications of any serious disease in this man from a physical standpoint.” Thus, there was no indication of a current diagnosis related to the findings during service. Without such evidence, the evidence of record was not so unequivocal that service connection would undoubtedly been granted even if the PEB report had been of record. See King, 26 Vet. App. at 441. It was the prerogative of the RO, as the factfinder, to interpret the evidence and draw reasonable inferences from it. Evans, 27 Vet. App.at 187. In doing so, the RO found that the evidence did not support a finding of service connection. As shown, it cannot be concluded that there was no evidence that could have supported this determination. See Crippen v. Brown, 9 Vet. App. 412, 422 (1996). (The RO also found that fibromyalgia and arthralgia were not disabilities for which service connection could be granted. The Veteran has not presented any allegations of CUE pertaining to this finding. See Andre v. West, 14 Vet. App. 7, 10 (2000) (each specific theory underlying an attack on a final decision necessarily constitutes a separate claim)). Of note here, the October 1989 VA examiner made clear that he did not have the STRs to review. Any failure on the RO’s part to obtain a new VA examination once the STRs were obtained is another breach of the duty-to-assist, which again cannot constitute CUE. See Caffrey, 6 Vet. App. at 384; King, 26 Vet. App. at 441. Likewise, the fact that the RO did not provide a VA psychiatric examination was a breach of the duty-to-assist. See id. Herein above, the Board grants service connection for fibromyalgia. Certainly, the evidence developed in the intervening years establishes that the Veteran’s condition during service likely represented the initial manifestation of his current fibromyalgia diagnosis. The Board’s current finding is based on subsequently developed evidence, including the March 2013 VA examination. This does not mean that the February 1990 rating decision was CUE. New or recently developed facts do not provide a basis for revising a finally decided case. See Russell, 3 Vet. App. at 313. In other words, merely because the current evidence now supports the favorable outcome does not mean that CUE existed in the earlier decision. (Continued on the next page)   Overall, the Veteran is correct that the complete STRs and the entire SPRs were not of record before the RO when it issued the February 1990 rating decision. However, this is not CUE because it constitutes a breach of VA’s duty-to-assist. Moreover, it is not absolutely certain that the outcome would have been different even if those records had been in the claims file. For these reasons, the motion to revise the February 1990 rating decision on the basis of CUE is denied. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.