Citation Nr: 1800264 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-09 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an effective date earlier than May 5, 2010, for the grant of service connection for sleep apnea, to include whether there was clear and unmistakable error (CUE) in a January 2000 rating decision that denied service connection for sleep apnea. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from October 1974 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2014, the Veteran testified before the Board at a hearing held at the RO. FINDINGS OF FACT 1. In January 2000, the RO denied the Veteran's claim for service connection for sleep apnea. The Veteran did not appeal that decision. 2. In March 2002, the RO again denied the Veteran's claim for service connection for sleep apnea. The Veteran did not appeal that decision. 3. In February 2011, the RO granted the Veteran's claim for sleep apnea and assigned an effective date of May 5, 2010, the date the Veteran's claim to reopen the claim for service connection for sleep apnea was received. 4. The correct facts as they were known at the time of the January 2000 rating decision were not applied, resulting in an undebatable and outcome determinative error. CONCLUSIONS OF LAW 1. The January 2000 rating decision contains CUE. 38 U.S.C. § 5109A, 7105 (2012); 38 C.F.R. § 3.105 (a) (2017). 2. The criteria for an effective date of December 17, 1998, but no earlier, for the grant of service connection for sleep apnea, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.105, 3.160, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA. The Veteran has not argued otherwise. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). CUE The Veteran contends that there is CUE in the January 2000 rating decision that denied his claim for service connection for sleep apnea. Preliminarily, the Board finds that the Veteran has pled a case for CUE with particularity. Generally, a rating decision becomes final if an appellant does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.200, 20.302. 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 CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.104 (b), 3.105(a). In order to find CUE in a prior adjudication, the following three-prong test must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). In this case, the Veteran filed his initial claim for service connection for sleep apnea on December 17, 1998, stating that his sleep apnea had begun in service in 1993. In January 2000, the RO denied the Veteran's claim, stating that it was not well-grounded. Specifically, the RO found that the "service medical records show one complaint of sleep apnea on June 27, 1994. Diagnosis at that time was increased lipase. A thorough review of the remainder of the service medical records are completely negative for any complaint, treatment, or diagnosis of sleep apnea." At the end of the decision, the RO stated, "To well ground a claim, the veteran must show a diagnosis of the condition while on active duty." Here, the Board notes that, as was the law at the time of the 2000 rating decision, a well-grounded claim required three elements: (1) medical evidence of a current disability, (2) lay or medical evidence of a disease or injury in service, and (3) medical evidence of a link between the current disability and the in-service injury or disease. 38 C.F.R. § 3.303 (2000). Determinations as to service connection were based on a review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Id. Thereafter, the Veteran did not appeal the 2000 decision or file a claim to reopen the claim. Instead, following the passage of the Veterans Claims Assistance Act of 2000, the RO sent the Veteran a January 2002 correspondence stating that his claim would be readjudicated based upon the new law. However, in March 2002, the RO denied the Veteran's claim for service connection for sleep apnea once again, with similar reasoning as in 2000. Specifically, the RO stated that "service medical records were reviewed and considered for sleep apnea and showed only one complaint of sleep apnea in June 27, 1994. The remainder of the service medical records showed no evidence of complaint, treatment, and diagnosis of sleep apnea." The RO denied the claim because, "there is no record of treatment in service for definitive sleep apnea." When reviewing these two rating decisions, the Board first finds no indication that any portion of the Veteran's service treatment records were missing at the time of either adjudication. That being the case, the Board finds that both rating decisions in fact denied the existence of evidence in the file that existed at the time, and thus the first two prongs of CUE have been met. See Bouton v. Peake, 23 Vet. App. 70 (2008). In Bouton, the Court held that if the RO denies the existence of evidence in the file, such could meet the first two prongs of a claim for CUE. Here, the service treatment records in fact showed a diagnosis of sleep apnea as well as treatment for sleep apnea. In September 1993, the Veteran was instructed to return to the dental clinic for "sleep apnea appliance." In June 1994, the Veteran returned to the dental clinic for an "anti snoring device." In August 1994, the Veteran was evaluated by the dental clinic for an "anti snoring appliance-sleep apnea design occlusal ortho line device." The service treatment records also note this dental treatment. The June 1994 record, the record mentioned in both the 2000 and 2002 rating decisions, stated that the Veteran "reported episodes of sleep apnea which is worsening." A July 1994 follow-up note, not acknowledged by the 2000 or 2002 rating decisions, stated that the Veteran was "seeing dental for sleep apnea device." Based upon the above, the Board finds that there was CUE in the initial January 2000 rating decision that denied the Veteran's claim for service connection for sleep apnea. The Board finds that this is not a case in which there is a disagreement as to how the facts were weighed or evaluated. Rather, the RO affirmatively stated in the 2000 decision that the above-cited records did not exist, even though they demonstrated the key element of the denial - that of an in-service diagnosis. Lastly, the error in the January 2000 rating decision was outcome determinative because the decision would have resulted in a different outcome if the favorable evidence had been properly considered. See Fugo, 6 Vet. App. 43-44. Given that the service treatment records demonstrated a diagnosis of sleep apnea as well as treatment for sleep apnea by way of the issuance of a sleep apnea appliance, it is clear that the condition was diagnosed and treated in service. At the time of the January 2000 rating decision, the Veteran also carried a post-service diagnosis of sleep apnea, and there was no question as to that aspect of the claim. The claim was specifically denied based upon a lack of in-service diagnosis or treatment. Therefore, the showing of the in-service diagnosis and treatment would have manifestly changed the outcome of the case. Thus, the elements of CUE have been met. Earlier Effective Date With CUE in the January 2000 rating decision established, the remaining issue is the proper effective date to be assigned for the award of service connection for sleep apnea. As the January 2000 rating decision contained clear and unmistakable error, the effective date of the award for benefits is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. See 38 C.F.R. § 3.400 (k). Generally, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110 (a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110 (a). VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.1 (p), 3.155(a). In this case, the first formal or informal claim for service connection for sleep apnea was received by the RO on December 17, 1998. The Veteran does not contend that he filed a claim for service connection for sleep apnea prior to this date. Therefore, the effective date for the grant of service connection for sleep apnea must be December 17, 1998. ORDER The January 2000 RO decision denying service connection for sleep apnea contains CUE; the appeal is granted. Entitlement to an effective date of December 17, 1998, for the grant of service connection for sleep apnea, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs