Citation Nr: 1753731 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-32 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a liver disability, to include hepatitis, steatosis and fatty liver disease. 2. Entitlement to an earlier effective date prior to May 13, 2008 for service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Robert Goss, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to May 1980, October 1984 to May 1985, and November 1985 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2017, a videoconference hearing was held and the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran's liver disability, to include hepatitis, steatosis and fatty liver disease, had its onset during his active duty service. 2. Prior to May 13, 2008, there was no formal claim, informal claim, or expressed intent to file a claim of entitlement to service connection for obstructive sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a liver disability, to include hepatitis, steatosis and fatty liver disease, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for an effective date earlier than May 13, 2008 for service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for a Liver Disability, to Include Hepatitis, Steatosis and Fatty Liver Disease Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has submitted evidence of a liver disability, including a diagnosis of fatty liver and nonalcoholic fatty liver disease. October 2017 Private Treatment Records, p. 12; November 2015 VA Treatment Records, p. 7. Accordingly, the Board finds that the first element of service connection is established. See Holton, 557 F.3d at 1366. The Board also finds that the evidence supports a finding of an in-service incurrence of a disease or injury. The Veteran's service treatment records (STRs) indicate that the Veteran underwent a liver biopsy while in service because he had a history of elevated transaminase levels. August 2014 STRs (2), p. 41. He was subsequently diagnosed with mild steatosis. August 2014 STRs (4), p. 61. Thus, the second element of service connection is established. See Holton, 557 F.3d at 1366. Finally, with respect to the third element of service connection, the Board finds that the evidence establishes a nexus between the Veteran's current liver disability and his in-service disease. The Veteran submitted an independent medical opinion that contends that the Veteran's current nonalcoholic fatty liver disease had its onset during service. October 2017 Private Treatment Records, p. 12. The physician that offered the opinion also previously treated the Veteran for this liver condition while in service. He opined that the Veteran's in-service condition was, in fact, an abnormal liver condition that is consistent with a diagnosed disability, and that the Veteran's liver disability is related to his service. The Board finds this opinion to be competent, credible and probative of an onset of the liver disability in service. Accordingly, the third element of service connection is established. See Holton, 557 F.3d at 1366. Thus, service connection for a liver disability, to include hepatitis, steatosis and fatty liver, is warranted. Earlier Effective Date for Service Connection for Obstructive Sleep Apnea In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA's possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). The October 2008 rating decision on appeal granted service connection for obstructive sleep apnea and assigned an effective date of May 13, 2008, the date of the Veteran's claim for service connection for the condition. See May 2008 Statement in Support Claim. The Veteran asserts that the effective date for service connection for obstructive sleep apnea should be October 1, 2006, because he submitted a claim prior to discharge, and thus, he is entitled to service connection as of the day after discharge. Although the Veteran contends that he submitted a claim for obstructive sleep apnea prior to his discharge from service, unfortunately, there is no communication from the Veteran or any other evidence of record that could be construed as a formal or informal claim of entitlement to service connection for obstructive sleep apnea. See Brannon, 12 Vet. App. at 35. Indeed, in May 2006, the Veteran submitted a claim for service connection for a number of other conditions, but sleep apnea was not listed. May 2006 Application for Compensation and/or Pension, p. 6. The Veteran underwent a VA examination in August 2006 for these conditions, many of which were subsequently granted service connection in a January 2007 rating decision. The Board notes that the Veteran completed a QTC in July 2006 that noted, among other things, that the Veteran had sought treatment for sleep apnea in January 2006, that test results found mild apnea, and that the treatment plan was for the Veteran to complete another sleep study; however, neither the QTC, nor any other document of record prior to May 13, 2008, indicated the Veteran's intent to seek service connection for the condition. See Brannon and Lalonde, both supra. Accordingly, the Board finds that there was no formal claim, informal claim, or expressed intent to file a claim of entitlement to service connection for obstructive sleep apnea prior to May 13, 2008. Thus, the preponderance of the evidence is against the assignment of an effective date earlier than May 13, 2008 for service connection for obstructive sleep apnea. ORDER Service connection for a liver disability, to include hepatitis, steatosis and fatty liver disease, is granted. An earlier effective date prior to May 13, 2008 for service connection for obstructive sleep apnea is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs