Citation Nr: 1757564 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-18 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than August 24, 2012, for the grant of service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to June 2003. This matter comes before the Board of Veterans Appeals' (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the Veteran's claim is currently with the RO in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge in a June 2017 hearing. A transcript of that hearing has been associated with the file. The Board acknowledges the Veteran's attempt, during the June 2017 hearing, to raise the issue of whether clear and unmistakable error (CUE) is present in the August 2008 rating decision that denied service connection for sleep apnea. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). FINDINGS OF FACT 1. In a June 2011 rating decision, the RO declined to reopen the service connection claim for sleep apnea. 2. Evidence received within the year following the June 2011 rating decision is not new and material as it only showed that the Veteran had a current diagnosis of sleep apnea. It did not relate to an unestablished fact necessary to grant the Veteran's claim, as it was cumulative and redundant of the evidence already of record. 3. The earliest date of claim subsequent to the June 2011 final rating decision is August 24, 2012, when the Veteran filed his claim to reopen the issue of entitlement to service connection for sleep apnea. CONCLUSION OF LAW The criteria for an effective date earlier than August 24, 2012, for the award of service connection for sleep apnea are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.156, 3.157, 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has 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). The Board notes that during the June 2017 hearing, the Veteran's representative argued that prior to the August 2008 rating decision, the RO did not provide the Veteran with an examination and therefore failed in their duty to assist. This argument is beyond the scope of this appeal, and as stated in the Introduction, a claim has not been filed regarding clear and unmistakable error. Legal Criteria The laws and regulations governing effective dates establish that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). Factual Background and Analysis The Veteran is seeking an effective date earlier than August 24, 2012, for the grant of service connection for sleep apnea. The Veteran's original claim for service connection for sleep apnea was filed in September 2007. The claim was denied in an August 2008 rating decision. The Veteran filed a timely notice of disagreement in November 2008. The claim was again denied in a March 2009 statement of the case. In March 2009 the Veteran was provided with a letter that explained to him that he had until August 2009 to file an appeal. Language in the statement of the case explained that the August 2008 rating decision would become final if the Veteran did not submit an appeal by August 2009. Enclosed with this letter was a blank copy of VA Form 9, the document needed to appeal. The Veteran failed to file a VA Form 9, and the August 2008 rating decision became final. See 38 U.S.C.§ 7105(c); 38 C.F.R. § 3.104. The Veteran filed to reopen his claim in October 2010. This petition to reopen was denied in a June 2011 rating decision. In June 2011 the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision or it would become final. The Veteran failed to file a notice of disagreement. Within a year following the June 2011 rating, new medical evidence was received, but it only showed that the Veteran had a diagnosis of sleep apnea. This evidence, however, is not material as his diagnosis was confirmed prior to the June 2011 rating decision, and the evidence did not relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(b). In other words, the evidence received in the year following the June 2011 rating decision was cumulative and redundant of the evidence already of record. As such, the June 2011 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. The Veteran again filed to reopen his claim on August 24, 2012. In a March 2013 rating decision, the RO granted service connection for sleep apnea, assigning a disability rating of 50 percent with an effective date of August 24, 2012. In this case, because the Veteran did not file a VA Form 9 the August 2008 rating decision became final. In addition, because the Veteran did not file a timely notice of disagreement, the June 2011 rating decision also became final. Neither rating decision is subject to revision in the absence of clear and unmistakable error (CUE) in the decisions. 38 U.S.C. §§ 5109A; 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006). A motion for CUE has not been filed and accordingly is not before the Board. Thus, the August 2008 and June 2011 decisions are a legal bar to an effective date prior to the date of the claim to reopen the issue of entitlement to service connection for sleep apnea. The Board acknowledges the Veteran's sincere belief that an effective date earlier than August 24, 2012, for the grant of service connection for sleep apnea is warranted. However, the evidence of record does not support an effective date earlier than his most recent claim to reopen that was received in August 2012. The earliest date after the June 2011 rating decision that the Veteran expressed an intent to reopen his claim for service connection is August 24, 2012-the presently assigned effective date. The Board appreciates the Veteran's competent and credible testimony, however, there is no legal basis on which to grant this claim. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400(r). Thus, the August 24, 2012, date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. ORDER An effective date earlier than August 24, 2012, for the grant of service connection for sleep apnea is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs