Citation Nr: 1752390 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-22 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an effective date prior to May 2, 2006 for the grant of service connection for sleep apnea. 2. Entitlement to a rating in excess of 50 percent for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to January 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for sleep apnea and rated it as 50 percent disabling from May 2, 2006. The Veteran is considered to have perfected appeals both as to the effective date of the grant of service connection and as to the rating of 50 percent, and so appellate jurisdiction is being accepted as to both issues. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in May 2016, and a transcript of the hearing is associated with his claims folder. The Board remanded this matter in August 2016. While other issues are on their way to the Board, and the representative made arguments regarding at least some of them in July 2017, the only issues certified/ready for review at this time are those listed on the cover page. Other issues will be addressed by the Board when indicated. FINDINGS OF FACT 1. The Veteran was discharged from the service June 1979, and a claim for service connection for sleep apnea was not received prior to May 2, 2006. 2. The Veteran's sleep apnea does not result in chronic respiratory failure with carbon dioxide retention or cor pulmonale; and it does not require tracheostomy. CONCLUSION OF LAW 1. The criteria for an effective date prior to May 2, 2006 for the grant of service connection for sleep apnea are not met. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.400 (2016). 2. The criteria for a disability rating in excess of 50 percent for have sleep apnea are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6847 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date The Veteran appeals for an earlier effective date than May 2, 2006 is warranted for the grant of service connection for sleep apnea. After carefully reviewing all of the evidence, including the arguments presented by the Veteran, the Board finds that a claim for service connection for sleep apnea was not filed prior to May 2, 2006. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151 (a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 . Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply where warranted. Here, the Veteran's arguments are not easily comprehended. However, the Board has attempted to consider every argument he may be attempting to make. If his argument is to the effect that he filed a claim for service connection for sleep apnea earlier (e.g., as early as 1985, when other claims were filed), or that he had his sleep apnea before May 2, 2006, the Board's response is that the record reveals that earlier claims were filed, but not for service connection for sleep apnea. The evidence does not show that a claim for service connection for sleep apnea was received prior to May 2, 2006. Effective dates for grants of service connection for a disease are based on the date of claim for service connection for such disease, unless they are filed within 1 year of separation. As no earlier claim for service connection for sleep apnea is shown, and the May 2, 2006 claim was filed more than 1 year post-service, May 2, 2006 shall be the effective date of the grant of service connection. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Therefore an earlier effective date than May 2, 2006 is not warranted. Higher rating for sleep apnea Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran appeals for a higher rating than 50 percent for his service-connected sleep apnea, which is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847, for sleep apnea syndromes. Under such code, a 50 percent rating is warranted for sleep apnea requiring use of a breathing assistance device such as continuous airway pressure (CPAP) machine. The next higher rating under Diagnostic Code 6847 is a 100 percent rating, which is warranted for sleep apnea if it causes chronic respiratory failure with carbon dioxide retention or cor pulmonale; or if it requires a tracheostomy. On VA examination in October 2012, the examiner indicated that the Veteran did not have evidence of chronic respiratory failure with carbon dioxide retention; that he did not have cor pulmonale; and that he did not require a tracheostomy. There is no evidence of record, including in the October 2016 VA examination report or the Veteran's statements, that he meets any of the requirements for a 100 percent rating for his sleep apnea. The Veteran mentioned having had a "trach" in 2006 during his May 2016 hearing, but there is no evidence that he has had a tracheostomy, at any time since the claim was filed in May 2006. The VA examination report from October 2012 probatively demonstrates that he did not have a tracheostomy in 2006, as it indicates that he did not require a tracheostomy. It appears that during the hearing, the Veteran was referring to having a "trach" temporarily being put in when he reportedly had his tonsils removed in 2006. In light of the evidence, the Board finds that a higher rating than 50 percent for the Veteran's service-connected sleep apnea is not warranted. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board would like to thank the Veteran for his 5+ years of service to his country, and regrets that the benefits sought on appeal cannot be granted. ORDER An effective date prior to May 2, 2006 for the grant of service connection for sleep apnea is denied. A rating in excess of 50 percent for sleep apnea is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs