Citation Nr: 21003723 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-14 476 DATE: January 22, 2021 REFERRED The Veteran has raised motions alleging clear and unmistakable error as follows: (1) in rating decisions of June 2000, September 2001, February 2004, and January 2005, which denied service connection for low back pain and not considering back pain as an undiagnosed disability (2) in a June 2000 rating decision denying service connection for diarrhea, and (3) in a June 2000 rating decision denying service connection for fatigue. However, these motions have not yet been adjudicated by the agency of original jurisdiction (AOJ). Therefore, they are REFERRED to the AOJ for initial adjudication. 38 C.F.R. § 20.904. ORDER Entitlement to an earlier effective date than April 7, 2014, for the grant of service connection for fibromyalgia is denied. Entitlement to an earlier effective date than April 7, 2014, for the grant of service connection for lumbar strain is denied. Entitlement to an earlier effective date than April 7, 2014, for the grant of service connection for chronic fatigue syndrome is denied. Entitlement to an earlier effective date than April 7, 2014, for the grant of service connection for diarrhea is denied. FINDING OF FACT The Veteran’s claim for service connection for fibromyalgia, and his request to reopen claims of service connection for fatigue, diarrhea, and low back pain, were received on April 7, 2014. The record does not reflect that a relevant claim for benefits may be raised prior to that time. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than April 7, 2014, for the grant of service connection for fibromyalgia is denied. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. 2. The criteria for an earlier effective date than April 7, 2014, for the grant of service connection for lumbar strain is denied. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. 3. The criteria for an earlier effective date than April 7, 2014, for the grant of service connection for chronic fatigue syndrome is denied. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. 4. The criteria for an earlier effective date than April 7, 2014, for the grant of service connection for diarrhea is denied. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1986 to December 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In November 2018, the Board remanded these matters based on a finding that they were inextricably intertwined with contentions of clear and unmistakable error in rating decisions from the agency of original jurisdiction (AOJ) dated June 2000, September 2001, February 2004, and January 2005. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The AOJ was asked to adjudicate the motions of clear and unmistakable error in the first instance. 38 U.S.C. §§ 7104, 7105. On remand, the AOJ did not complete the initial adjudications as requested by the Board. However, the Board notes that its jurisdiction is currently limited to whether an earlier effective date than April 7, 2014, may be assigned for the claims on appeal. As such, this appeal is not dependent on the AOJ’s adjudication of the clear and unmistakable error motions because it involves different regulations and questions of law. Compare 38 C.F.R. § 3.105(a)(1)(i) with 38 C.F.R. § 3.400. As a Board decision on the merits would not impact the ability of the AOJ to grant an earlier effective date based on clear and unmistakable error, if appropriate, a further remand of the instant claims would needlessly delay adjudication without benefit to the Veteran. Therefore, the Board will proceed with a decision on the merits. In addition, the Board has referred the clear and unmistakable error motions to the AOJ for initial adjudication consistent with 38 C.F.R. § 20.904. Earlier Effective Date than April 7, 2014 The Board finds that the most probative evidence does not support entitlement to an earlier effective date than April 7, 2014, for the grants of service connection for fibromyalgia, chronic fatigue syndrome, diarrhea and low back pain. Therefore, the claims may not be granted. Generally, the effective date of an evaluation and award based on an original claim, a claim for increase, or a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran filed a request to reopen his claims for service connection for low back pain, and Gulf War syndrome to include fibromyalgia, diarrhea, and chronic fatigue, that was received on April 7, 2014. Therefore, this date is considered the appropriate effective date of service connection for those disorders. 38 C.F.R. § 3.400. The record does not show that an effective date prior to April 7, 2014, may be assigned. Other than contentions asserting clear and unmistakable error in the AOJ decisions, the Veteran has not explained why he believes an earlier effective date should be assigned for the claims at issue on appeal. In sum, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise as to whether an effective date prior to April 7, 2014, may be assigned for any of the claims of service connection at issue. The Board’s decision, however, does not affect the ability of the AOJ to adjudicate the clear and unmistakable error motions, which remain pending before the AOJ. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.