Citation Nr: 1746923 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-20 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to April 8, 2010 for the grant of service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The January 2012 rating decision awarded service connection for obstructive sleep apnea and assigned a noncompensable rating effective April 8, 2010. A subsequent February 2012 rating decision awarded a 50 percent rating for service-connected obstructive sleep apnea effective April 8, 2010. The Veteran appealed for an earlier effective date for the grant of service connection in a May 2012 Notice of Disagreement (NOD), and the RO addressed the matter in a June 2013 SOC. In July 2013, the Veteran submitted a timely substantive appeal (via VA Form 9). FINDINGS OF FACT 1. The Veteran initiated an appeal of the June 2008 rating decision denying service connection for obstructive sleep apnea, but did not perfect the appeal by submitting a substantive appeal, and the June 2008 rating decision became final. 2. The Veteran initiated a claim to reopen service connection for obstructive sleep apnea on April 8, 2010. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying the Veteran's service connection claim for obstructive sleep apnea is final. 38 U.S.C.A. § 7105(d) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2016). 2. The criteria for an effective date prior to April 8, 2010 for the grant of service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the resolution of the Veteran's appeal for an earlier effective date is dependent solely on the law and regulations pertaining to claims for VA benefits, no further development under the duty to notify and assist is warranted. Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000); Livesay v. Principi, 15 Vet. App. 165 (2001); VAOPGCPREC 2-04 (2004), 69 Fed. Reg. 25180 (2004). The Veteran has been notified of how VA assigns effective dates. II. Effective Date for Service Connection The Veteran seeks an effective date earlier than April 8, 2010 for the grant of service connection for obstructive sleep apnea. Specifically, the Veteran contends that the effective date should be July 31, 2007, or the date he filed his original claim for service connection for obstructive sleep apnea. Generally, the effective date for a grant of service connection based on original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). Otherwise, the effective date is the date of receipt of claim or claim to reopen after final disallowance, whichever is later. 38 U.S.C.A. § 5110(a), (b) (West 2014); 38 C.F.R. § 3.400(b)(2)(i) (2016). A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.302 (2016). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104(b), 3.105(a) (2016). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.400(q)(2), 3.400(r) (2016). The statutory framework 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. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, the Veteran has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). A specific claim in the form prescribed by 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) (West 2014). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2016). An application is 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) (2016); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). Following a review of the pertinent evidence of record in light of the above-cited authority, the Board finds that an earlier effective date for service connection of the Veteran's obstructive sleep apnea is legally precluded. In July 2007, the Veteran first filed a claim for service connection for obstructive sleep apnea. By way of a June 2008 rating decision, the RO denied service connection for the same. In particular, the RO determined the evidence did not establish that the Veteran's obstructive sleep apnea was related to service. Thereafter, the Veteran submitted a May 2009 email correspondence and June 2009 Statement in Support of the Claim disagreeing with the June 2008 rating decision. In response, the RO issued a Statement of the Case (SOC) in October 2009. However, the Veteran never perfected the appeal. As such, the June 2008 rating decision became final. See 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2016). Accordingly, it is only subject to reversal or amendment if it contains CUE. 38 C.F.R. § 3.105(a) (2016). On April 8, 2010, the Veteran filed a Statement in Support of Claim petitioning to reopen the service connection claim for obstructive sleep apnea. In an August 2010 rating decision, the RO reopened the claim and denied service connection for obstructive sleep apnea. Thereafter, the Veteran submitted a November 2010 Statement in Support of the Claim disagreeing with August 2010 rating decision. In a January 2012 rating decision, the RO granted service connection for obstructive sleep apnea based upon new and material evidence demonstrating a current disability related to his service. The RO assigned a noncompensable rating with an effective date of April 8, 2010, the date the claim to reopen was submitted to the RO. Under the laws governing the assignment of an effective date, to receive an earlier effective date for his claim of entitlement to service connection for obstructive sleep apnea, the record must contain a formal or informal claim to reopen his claim of entitlement to service connection for obstructive sleep apnea prior to the one received on April 8, 2010. On review, the Board finds that there is no evidence of record of any attempt to file to reopen the Veteran's claim for service connection for obstructive sleep apnea prior to April 8, 2010. As such, the Veteran's claim for an effective date earlier than April 8, 2010 must be denied. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). Accordingly, the Board finds that April 8, 2010 is the appropriate effective date for the award of service connection for obstructive sleep apnea on appeal. 38 U.S.C.A. § 5110A(a) (West 2014); 38 C.F.R. § 3.400 (2016). As there is no basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than April 8, 2010 for the grant of service connection for obstructive sleep apnea is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs