Citation Nr: 1329540 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-51 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than March 31, 2008 for the award of service connection for pulmonary fibrosis and asthma. 2. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected pulmonary fibrosis and asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a May 2012 hearing conducted via videoconference. A transcript of the hearing is of record. The Board notes that evidence has been associated with the Veteran's claims folder following the issuance of the most recent supplemental statement of the case (SSOC) in February 2012. Specifically, the evidence consists of private treatment records dated October 2009 from G.D., M.D. and May 2010 from C.H., M.D. as well as a lay statement from O.Q. Pertinently, the private treatment records from Dr. G.D. and Dr. C.H. were also submitted prior to the February 2012 SSOC. Moreover, the statement from O.Q. documents the Veteran's sleep apnea and pneumonia symptomatology which was documented prior to the February 2012 SSOC. As such, the Board finds that remand for a waiver of this evidence is not necessary. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for sleep apnea, claimed as secondary to service-connected pulmonary fibrosis and asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran initially filed a claim of entitlement to service connection for pneumonia in June 1973, and that initial claim was denied in a July 1973 rating decision, of which he was notified in a letter dated July 26, 1973. The Veteran did not file a notice of disagreement, and the rating decision became final. 2. The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for residuals of pneumonia in May 1983, which was denied in a May 1983 rating decision. The Veteran filed a timely appeal, and his claim was thereafter denied by the Board in a July 1984 decision. 3. The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for a lung condition, to include pneumonia in June 1993, which was denied in an October 1993 rating decision, of which he was notified in a letter dated October 8, 1993. The Veteran did not file a notice of disagreement, and the rating decision became final. 4. The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for pneumonia in July 2004, which was denied in an October 2004 rating decision, of which he was notified in a letter dated November 15, 2004. The Veteran did not file a notice of disagreement and the rating decision became final. 5. The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for pneumonia in September 2005, which was denied in an October 2006 rating decision, of which he was notified in a letter dated October 23, 2006. The Veteran did not file a notice of disagreement, and the rating decision became final. 6. The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for pneumonia or residuals thereof on March 31, 2008, and this is the existing effective date of his award. CONCLUSION OF LAW The criteria are not met for an effective date earlier than March 31, 2008 for the grant of service connection for pulmonary fibrosis and asthma. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). This appeal arises from the Veteran's disagreement with the effective date assigned following the granting of service connection for pulmonary fibrosis and asthma. So the claim, as it arose in its initial context, has been substantiated - indeed granted. Therefore, additional VCAA notice is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel also has held that no additional VCAA notice is required in this circumstance for such a "downstream issue", and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning this "downstream" earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued a SOC in December 2009 addressing this "downstream" earlier-effective-date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than March 31, 2008, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Consequently, the Board finds that all necessary development of this downstream earlier-effective-date claim has been accomplished and, therefore, that appellate review of this claim may proceed without prejudicing the Veteran. Moreover, as will be explained, resolution of this claim ultimately turns on when he filed the petition to reopen this claim, so an examination and opinion - including any "retrospective" opinion, is not needed to fairly decide this claim as it pertains to the assignation of the effective date. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 86 (2008). As noted above, the Veteran also was afforded a hearing before the undersigned AVLJ during which he presented oral argument in support of his earlier effective date claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issue on appeal during the hearing and specifically discussed the Veteran's pneumonia symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claim, namely evidence pertaining to establishing an earlier effective date for the award of service connection for pulmonary fibrosis and asthma. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. Entitlement to an effective date earlier than March 31, 2008 for the grant of service connection for pulmonary fibrosis and asthma In June 1973, the Veteran filed a claim of entitlement to service connection for pneumonia. That claim was denied in a July 1973 rating decision. The RO sent him a letter on July 26, 1973, notifying him of that decision and apprised him of his procedural and appellate rights in the event he elected to appeal. The Veteran did not submit a notice of disagreement to the July 1973 decision, and the decision therefore became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d); 20.200, 20.302, 20.1103. The Veteran thereafter filed a petition to reopen his previously denied claim of entitlement to service connection for residuals of pneumonia in May 1983, which was denied in a May 1983 rating decision. He filed a timely appeal, and his claim was thereafter denied by the Board in a July 1984 decision. The Veteran subsequently filed a petition to reopen his previously denied claim of entitlement to service connection for a lung condition, to include pneumonia in June 1993, which was denied in an October 1993 rating decision, of which he was notified in a letter dated October 8, 1993. The Veteran did not file a notice of disagreement, and the rating decision became final. In July 2004, he filed a petition to reopen his previously denied claim, which was denied in an October 2004 rating decision, of which he was notified in a letter dated November 15, 2004. He did not file a notice of disagreement, and the rating decision became final. In September 2005, he filed a petition to reopen his previously denied claim, which was denied in an October 2006 rating decision, of which he was notified in a letter dated October 23, 2006. He did not file a notice of disagreement, and the rating decision became final. The Veteran filed a petition to reopen this claim on March 31, 2008, and this claim was granted retroactively effective from that date in a November 2008 rating decision. In maintaining his entitlement to an earlier effective date, the Veteran argues that his effective date should go back to June 1972 when he was discharged from service. For the reasons and bases discussed below, however, the Board disagrees and finds there are no grounds for assigning an effective date earlier than March 31, 2008, for the award of service connection for his pulmonary fibrosis and asthma. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1)(i). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An informal claim must identify the benefit sought, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of informal claim. 38 C.F.R. § 3.157(b). An "application" is used synonymously with "claim" and defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). Here, the Veteran did file his initial claim for service connection within one year of his separation from service. However, he did not timely appeal the RO's denial of that initial claim in July 1973. Although he also filed a petition to reopen the previously denied claim in May 1983, this claim was denied by the Board in a July 1984 decision. Furthermore, although he also filed petitions to reopen the previously denied claims in June 1993, July 2004, and September 2005, he did not file a notice of disagreement as to any of these claims after they were denied in October 1993, October 2004, and October 2006 rating decisions, respectively, and these rating decisions also became final. As such, he cannot receive an effective date earlier than when he subsequently filed a petition to reopen this claim, which was not until March 31, 2008. The only potential argument that may be gleaned from the Veteran is that he has had this disability since his military service. However, merely having a disability is not equivalent or tantamount to actually filing a claim for that disability. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Moreover, there is no basis for a free-standing earlier effective date claim from a matter addressed in a prior, final and binding, rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). If there is only a free-standing claim, the claim should be dismissed without prejudice to refilling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision, as is the case here as concerning the prior July 1973 rating decision, and the subsequent October 1993, October 2004, and October 2006 rating decisions. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Moreover, the July 1984 Board decision is also final. 38 C.F.R. § 20.1105 (2012). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service- connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denials of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Here, however, the Veteran has not alleged CUE in the prior decision that initially considered and denied his claim of entitlement to service connection for pneumonia or subsequent rating and Board decisions which reconsidered and denied his claim based on the failure to submit new and material evidence. CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The United States Court of Appeals for the Federal Circuit has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Thus, because the Veteran did not timely appeal the July 1973, October 1993, October 2004, or October 2006 rating decisions which denied his claim for pneumonia or residuals thereof, has not asserted CUE for these rating decisions or the July 1984 Board decision, and did not file a subsequent petition to reopen this claim until March 31, 2008, this is the earliest possible effective date he can receive for the eventual grant of service connection for pulmonary fibrosis and asthma. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim for an effective date earlier than March 31, 2008, for the grant of service connection for pulmonary fibrosis and asthma. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hence, the appeal is denied as to this claim. ORDER Entitlement to an effective date earlier than March 31, 2008 for the award of service connection for pulmonary fibrosis and asthma is denied. REMAND The Board notes that the Veteran was afforded a VA examination in January 2010 in order to determine whether his sleep apnea is related to his service-connected pulmonary fibrosis and asthma. After review of the Veteran's claims folder and examination, the VA examiner concluded that "[t]he [V]eteran's sleep apnea is not caused by his pulmonary fibrosis or his asthma." VA regulations provide that service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In addition, if a nonservice-connected disorder is aggravated by a service-connected disorder, the Veteran is entitled to compensation for the degree of increased disability (but only that degree) over and above the degree of disability existing in the absence of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. Crucially, the January 2010 VA examiner did not render an opinion as to whether the Veteran's sleep apnea was aggravated by his service-connected pulmonary fibrosis and asthma. In light of the foregoing, the Board finds that a supplemental VA opinion is necessary to address whether the Veteran's sleep apnea is aggravated by his service-connected pulmonary fibrosis and asthma. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Additionally, during the above-referenced videoconference hearing in May 2012, the Veteran discussed his sleep apnea symptomatology. He also indicated that he received recent treatment at the VA outpatient clinic in El Paso, Texas for the sleep apnea, to include an attempted sleep study in February 2012. See the May 2012 Board hearing transcript, pgs. 5-6. The Board observes that the most recent VA treatment records associated with the Veteran's claims folder are dated April 2010. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, the RO should obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. The RO should also request any records from the VA outpatient clinic in El Paso, Texas, dated after April 2010 pertaining to the Veteran's sleep apnea. All attempts to secure this evidence must be documented in the claims folder by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The RO should refer the case to an appropriate VA examiner for a supplemental opinion with respect to the Veteran's sleep apnea claim. The claims folder must be made available to and reviewed by the examiner. The examiner must provide an opinion, in light of the service and post-service medical evidence of record, whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected pulmonary fibrosis and asthma. If the examiner finds that the Veteran's sleep apnea is aggravated by the service-connected pulmonary fibrosis and asthma, then he/she should quantify the degree of aggravation. If an opinion cannot be provided without further examination of the Veteran, such an examination must be provided. The rationale for all opinions expressed must be provided. The report prepared must be typed. 3. After undertaking any additional development deemed by it to be appropriate, the RO should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. See 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. 2012). ______________________________________________ A.C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs