Citation Nr: 1122219 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-31 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date prior to August 10, 2009, for the grant of a 50 percent disability rating for obstructive sleep apnea. 2. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Hill & Ponton, P.A. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of an increased rating for degenerative disc disease of the lumbosacral spine is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In December 2006, the RO granted service connection for sleep disorder breathing and assigned a noncompensable rating; the Veteran did not perfect a timely appeal to the Board and the rating action became final. 2. Following a claim for an increased rating, in February 2008, the RO granted entitlement to an increased rating of 30 percent for sleep disorder breathing, effective July 12, 2006. 3. The Veteran filed a timely notice of disagreement in February 2009 for the February 2008 rating decision. 4. In October 2009, the RO granted entitlement to an increased rating of 50 percent for obstructive sleep apnea, effective August 10, 2009. 5. There is no medical evidence to establish a rating higher than 50 percent for the Veteran's obstructive sleep apnea prior to August 10, 2009. CONCLUSION OF LAW The criteria for an effective date prior to August 10, 2009, for the grant of a 50 percent rating for obstructive sleep apnea, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION An October 2009 rating decision awarded a 50 percent disability rating for obstructive sleep apnea, effective August 10, 2009. The Veteran asserts that he is entitled to an effective date of June 2006, the date of his initial claim for service connection. The Veteran's service-connected obstructive sleep apnea is evaluated under Diagnostic Code 6847. Under the criteria for Diagnostic Code 6847, a noncompensable rating is warranted for asymptomatic but documented sleep disorder breathing. A 30 percent disability rating is warranted for persistent day-time hypersomnolence. Important for this case, a 50 percent disability rating is warranted when the disability requires the use of a breathing assistance device such as a CPAP machine. A total, 100 percent, disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor polmonale, or requires the use of a tracheostomy. The general rule with regard to an award of increased compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan v. Gober, 10 Vet. App. 511 (1992). VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The procedural history in this case shows that the Veteran's initial claim for service connection was received by VA in August 2006. In a December 2006 rating action, the Veteran was granted service connection for sleep disorder breathing and was assigned a noncompensable rating effective July 12, 2006. The Veteran filed a timely notice of disagreement (NOD) in September 2007. In February 2008, an increased rating of 30 percent was granted for sleep disorder breathing, effective July 12, 2006, and the Veteran was issued a statement of the case (SOC). The Veteran did not submit a VA Form 9 within 60 days of the February 2008 SOC. It is important for the Veteran to understand that under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the Veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In February 2009, the Veteran did submit a NOD regarding the 30 percent rating assigned in the February 2008 rating decision. In a March 2009 decision, the RO found that the Veteran's February 2009 NOD was untimely as the February 2008 rating decision was sent on February 19, 2008 and the Veteran's NOD was not received until February 27, 2009. In August 2009, the Veteran submitted a claim for an increased rating for a sleep disorder. An October 2009 rating decision awarded a 50 percent disability rating for obstructive sleep apnea, effective August 10, 2009. In December 2009, the Veteran disagreed with the effective date assigned. The RO issued an SOC in June 2010 and the Veteran perfected his appeal as to the effective date to the Board in July 2010. Because the Veteran did not perfect an appeal for the December 2006 RO rating decision, that decision is final and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran has not asserted CUE in that decision. While the Veteran did file an NOD to this rating action, the RO responded with a statement of the case (SOC) and the Veteran did not appeal that statement of the case. Because of this, the rating action of December 2006 became finial. Under these circumstances, the Board is precluded from assigning an effective date based on the claims considered in the December 2006 rating decision. See 38 C.F.R. § 3.400(o). The Veteran and his representative assert that he is entitled to an earlier effective date for the 50 percent rating as the February 2009 NOD was timely filed and the evidence shows that entitlement for the higher rating was demonstrated prior to the August 2009 effective date. The Board agrees with the Veteran's assertion that the February 2009 NOD was in fact timely. As support for his argument, the Veteran submitted a receipt for certified mail showing a postmark of February 18, 2009. In computing the time limit for filing a NOD, 38 C.F.R. § 20.305(a) provides that a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. As notice of the February 2008 rating decision was sent on February 19, 2008, the Veteran's NOD was mailed within the one-year time limit. 38 C.F.R. § 20.302 (a). Therefore, the February 2008 rating decision is currently on appeal as an appeal to the Board is initiated by a NOD. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The Board, however, does not find that a earlier date is warranted for the 50 percent rating as entitlement to that rating was not first factually ascertainable prior to August 10, 2009. The RO construed the Veteran's August 10, 2009 letter as his claim for an increased rating and, therefore, assigned the effective date of the increased rating of 50 percent according to that date. The Board finds after a careful review of the record that the evidence does not show that the 50 percent rating was warranted following the December 2006 rating decision and prior to the August 10, 2009 effective date. The only medical evidence of record during this time period is a January 2008 VA examination. During this examination, the Veteran stated that he was treated a CPAP machine, but it was uncomfortable and he was not using it for a significant part of nights. Based on the Veteran's own statements, as the evidence shows that the Veteran was not consistently using his CPAP machine, a 50 percent rating is not warranted prior to August 10, 2009. See 38 C.F.R. § 4.97, Diagnostic Code 6847. Simply stated, the medical evidence of record provides evidence against the claim that he met the standards of a 50 percent evaluation prior to August 2009. The RO determined that the September 2009 VA examination findings were consistent with a 50 percent evaluation, and assigned an effective date of August 10, 2009, the date of the Veteran's statement that was construed as an increased rating claim. As shown above, the Veteran's February 2009 NOD was timely filed; therefore, the August 2009 letter was not actually a claim for increased rating. The assigned effective date, however, is more favorable to the Veteran than the September 2009 date of the VA examination, which is the date upon which it is first factually ascertainable that entitlement to a 50 percent rating was warranted (at that point, the Veteran was using his CPAP machine consistently). Therefore, an earlier effective date for the 50 percent rating for obstructive sleep apnea is not warranted. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in September 2006. The RO provided additional notice in a letter dated September 2009. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Entitlement to an effective date prior to August 10, 2009, for the grant of a 50 percent disability rating for obstructive sleep apnea is denied. REMAND The Veteran's representative asserts that the September 2009 VA examination did not properly address how the Veteran's fatigue, lack of endurance, and painful motion that was noted on examination affected the Veteran's functioning. The Board agrees. Review of the examination shows that the examiner only indicated that the Veteran's range of motion was not limited after repetitive use. The examiner did not address whether there was any additional functional limitation due to the previously noted symptoms, as required by Deluca v. Brown, 8 Vet. App. 202 (1995). Therefore, the matter should be remanded to provide the Veteran with a medical examination to determine the severity of his low back disability, including an assessment of any additional functional limitation due to pain, fatigue, and lack of endurance. Such an opinion is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the current level of impairment due to the service-connected low back condition. The claim folder must be made available to the examiner for review. a) The examination must include range of motion of the thoracolumbar spinal segment, expressed in degrees. The examiner is asked to discuss how pain impacts the Veteran's low back range of motion. The examiner should determine whether there is weakened movement, excess fatigability, functional loss due to pain to include during flare-ups or with repetitive use, or painful motion, and, if feasible, these determinations should be expressed in terms of the degree of additional limitation of motion. b) The examiner is asked to comment on whether the Veteran has incapacitating episodes of intervertebral disc syndrome of the lumbar spine, that is, whether the condition requires bed rest prescribed by a physician and treatment by a physician, and, if so, the duration and frequency of the incapacitating episodes. The examiner is also asked to describe any neurological deficits attributable to the service-connected back condition. Complete rationale must be provided for the opinions expressed. 2. Then, readjudicate the claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. The examinations obtained on remand should be carefully reviewed and returned to the VA examiner if found to be inadequate or unclear. If the decision with respect to the claim remains adverse to the appellant, he and his attorney should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs