Citation Nr: 1753359 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 877A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date prior to November 6, 2012, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from July 1980 to July 1984 and from July 1984 to December 1996. These matters come before the Board of Veterans' Appeals (Board) from July 2013 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The jurisdiction of this case subsequently transferred to the RO in North Little Rock, Arkansas. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), and a transcript is of record. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a stress disorder was denied by the RO in an April 2009 rating decision. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year appeal period. 2. VA received the Veteran's petition to reopen the previously denied claim on November 6, 2012, and the RO granted service connection for PTSD effective on that date. 3. The Veteran did not file a formal or informal claim to reopen his previously denied claim for service connection for a psychiatric disability after the issuance of the April 2009 rating decision and prior to November 6, 2012. CONCLUSION OF LAW The criteria for an effective date prior to November 6, 2012 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In April 2009, the RO denied the Veteran's claim for a stress disability. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the April 2009 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2017). In a February 2013 rating decision, the RO reopened the Veteran's claim and granted service connection for PTSD effective November 6, 2012; the date his petition to reopen the previously denied claim was received. A veteran cannot file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final. A "freestanding" effective date claim is not allowed. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). In this case, the February 2013 rating decision granted service connection and assigned an effective date. The Veteran's claim is not a "freestanding" effective date claim. The rating decision granting service connection was dated February 8, 2013. The Veteran asserted that he was entitled to an earlier effective date in a statement received on February 5, 2014. His challenge to the effective date was timely and the underlying rating decision is not final. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). If there is a prior final rating decision denying the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332 (1995). The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for a psychiatric disorder that was received after the last final April 2009 denial, but prior to the November 6, 2012 application to reopen. Moreover, neither the Veteran nor his representative assert that the Veteran filed an informal or formal claim during this time. In his original claim and at his June 2017 Board hearing, the Veteran stated he received a diagnosis PTSD in 2009 and that this should have some bearing on the effective date for the grant of service connection. However, the effective date of service connection cannot be earlier than the date of the Veteran's claim to reopen. The effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377 (1999). The proper effective date is November 6, 2012, the date his petition to reopen was received. In order for the Veteran to be awarded an effective date based on the claim that was denied in the April 2009 rating decision, he has to show CUE in the prior denial as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). In this case, he would have to show that the April 2009 rating decision contained CUE. Neither the Veteran nor his representative have presented evidence of CUE to overcome the finality of the April 2009 rating decision denying service connection. Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. At his June 2017 hearing, the Veteran and his representative stated that they "...just wanted to have somebody take a look at to see was it erroneously denied in 2008 or [200]9." The Veteran stated that the evidence of record at the time of the first denial should have resulted in a grant of benefits. This assertion is not specific enough to constitute a valid claim of CUE because it does not identify what error the Veteran believes the RO committed. Therefore the April 2009 rating decision may not be revised as a result of CUE. Thus, the Board concludes the Veteran is not entitled to an effective date earlier than November 6, 2012 for his PTSD, which is the date of his application to reopen. ORDER Entitlement to an effective date earlier than November 6, 2012, for the grant of service connection for PTSD is denied. REMAND The Veteran received a VA examination in April 2013 for his sleep apnea. However, the Board concludes that VA examination was inadequate. First, the VA examiner did not consider the Veteran's lay contentions that he has had snoring issues since service. The VA examiner only considered the Veteran's 2013 diagnosis of sleep apnea. Second, though the VA examiner related the Veteran's condition to his depression and fear of deployment, the examiner did not discuss whether the Veteran's sleep apnea is caused or aggravated by his service-connected PTSD. Thus, an addendum opinion is necessary to fully adjudicate the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the April 2013 sleep apnea examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during active service. Although an independent review of the claims file is required, the Board calls the examiner's attention specifically to the Veteran's lay contentions from his June 2017 Board hearing that he snored in service and received complaints about his snoring from his comrades and ex-wives. b. Whether it is at least as likely as not that the Veteran's sleep apnea was proximately due to or the result of his service-connected PTSD. c. Whether it is at least as likely as not that the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected PTSD. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 2014). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs