Citation Nr: 21042262 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 21-00 122 DATE: July 12, 2021 ORDER The motion for reversal or revision of the July 20, 2020 Board decision that denied service connection for chronic fatigue syndrome (CFS) on the basis of clear and unmistakable error (CUE) is denied. FINDING OF FACT In July 2020, the correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The July 2020 Board decision that denied service connection for CFS does not contain CUE. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-20.1406. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, the moving party, had active service from October 1975 to September 1979 and February 1981 to June 1995. This matter is before the Board on the Veteran's November 2020 motion for revision on the grounds of CUE in a July 20, 2020, Board decision that denied entitlement to service connection for CFS. The Board notes that the Veteran has an outstanding Privacy Act (PA) request for an October 2020 VA examination report related to a separate Board appeal that has been acknowledged and is being processed. As the subject of this decision relates to a motion alleging CUE in a July 2020 Board decision, the PA request for a copy of the October 2020 examination subsequent to the July 2020 Board is irrelevant to the current appeal, and the Veteran is not prejudiced in the Board proceeding with the instant decision. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made, thus the October 2020 examination cannot be considered to support the instant motion. See 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404 (Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made.). 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. §§ 20.1400-20.1402. All final Board decisions are subject to revision on the basis of CUE except for those decisions that have been appealed to and decided by the U.S. Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. 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. Clear and unmistakable error 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. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated;" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Review for clear and unmistakable error 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 clear and unmistakable error, 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. The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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 different but for the alleged error. 38 C.F.R. § 20.1404(b). 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 the requirement of the pleading requirements and must be dismissed. Id. In the November 2020 CUE motion, the Veteran raised multiple allegations of factual errors in the July 2020 Board decision. Specifically, regarding the Board's denial of service connection for CFS, the Veteran argues that (1) the Board's acceptance of the VA examiner's finding that the Veteran did not have a diagnosis of CFS was an error and that he was diagnosed and treated with CFS from 1999 to 2015 from VA physicians; (2) the Board erred in finding the disability did not exist prior to or approximate to the Veteran's CFS claim because the Veteran was treated for CFS in 2014 by Dr. Stephenson; and (3) the VA examiner falsely stated that Dr. Stephenson's positive nexus opinion was not supported by a rationale and that rationale was not necessary given that Dr. Stephenson was aware of the Veteran's official CFS diagnosis. He concluded that the factual references are part of his appeal record and were available to the examiner and the Board at the time of their examination or review. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. Thus, meeting the filing and pleading requirements of 38 C.F.R. §§ 20.1400(a), 20.1404(a), (b). At the time of the July 2020 Board decision, and to the present, to establish service connection, there must be evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38C.F.R. §3.303(a). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). The record shows that the correct facts, as they were known at the time, were before the Board during the July 2020 Board decision, as the Veteran also acknowledges that all the facts were before the 2016 examiner and the 2020 Board. The record does not establish that the Board incorrectly applied statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. The Veteran essentially disagrees with the weighing of the evidence and the factual determinations the Board reached, and the law provides that a disagreement as to how the facts were weighed or evaluated by the Board cannot constitute CUE. 38 C.F.R. § 20.1403(d); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). CUE cannot include a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d)(3); Hillyard v. Shinseki, 24 Vet. App. 343, 349 (2011). As there was no indisputable evidence that the Veteran was diagnosed with CFS related to service, the Board cannot determine that it is absolutely clear that a different result would have ensued, i.e., that service connection for CFS would have been granted. In assessing the medical evidence of record, the 2020 Board afforded more probative weight to the March 2016 VA examiner's opinion that the Veteran did not have a valid diagnosis of CFS. The 2020 Board noted that the 2016 VA examiner reviewed the available medical records, noting entries from 2003 to 2011, which reference the Veteran jogging every other day, not going to sleep until 1:30 a.m., and an inability to stop consuming caffeine. The 2020 Board cited entries that the Veteran's fatigue is "multifactorial" due to "chronic pain" and "depression" and that "sleep pathology" could be ruled out; an October 2009 sleep study report also ruled out sleep apnea. The 2020 Board noted that a January 2010 VA treatment record documented that the Veteran had normal sleep and was alert during the daytime without feeling drained or exhausted. The 2020 Board concluded that the records corroborated the 2016 VA examiner's opinion that the Veteran's issues with fatigue waxed and waned over time with treatment and external factors. The 2020 Board noted that in contrast to the 2016 VA opinion, in an August 2011 VA treatment record, Dr. Stephenson merely concluded that the Veteran has had CFS since separation from military service in the form of Gulf War Syndrome, but there was no indication that he reviewed the other medical records cited by the VA examiner and offered no rationale or explanation as to why he believes that a bona fide diagnosis of CFS exists rather than the Veteran experiencing fatigue due to other external factors discussed above. In examining the August 2011 VA treatment record and February 2012 opinion by Dr. Stephenson, the 2020 Board, as well as the 2016 VA examiner, correctly noted that Dr. Stephenson provided a conclusory statement that the Veteran had CFS related to the Gulf War and since 1992 without any rationale or meaningful analysis for the Board to weigh against the 2016 VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." (internal quotation omitted)). A medical opinion without a rationale has no probative value. The July 2020 Board decision that the Veteran did not have a diagnosis of CFS was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. In other words, whether the Veteran had a diagnosis of CFS was debatable, as there was evidence both for and against such a diagnosis. As such, the Veteran failed to establish factual or legal error rising to the level of CUE in the July 2020 Board decision that denied service connection for CFS. Accordingly, as the evidence did not undebatably establish entitlement to service connection for CFS, it is not absolutely clear the July 2020 Board decision would have granted the benefit. In conclusion, the Board finds that no undebatable errors exist within the July 2020 Board decision in denying the claim for service connection for CFS. The Veteran has not identified a clear and unmistakable error in the July 2020 Board decision that, but for the error, would have resulted in a manifest change in the outcome. Accordingly, the motion to revise or reverse the Board's July 2020 decision that denied service connection for CFS on the grounds of CUE is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.