Citation Nr: 1800617 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-11 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for chronic sinusitis with allergic rhinitis, currently rated as 50 percent disabling. 2. Entitlement to an effective date earlier than July 31, 2012 for the award of service connection for chronic sinusitis with allergic rhinitis. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from September 1986 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In September 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. 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 AOJ. FINDINGS OF FACT 1. The Veteran testified that he wished to withdraw his appeal as to the issue of entitlement to increased rating for sinusitis or allergic rhinitis. 2. The Veteran's claim for service connection for chronic sinusitis with allergic rhinitis was received on July 31, 2012 and there is no evidence of any correspondence prior thereto which may be construed as an informal claim for benefits. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to an increased rating for service-connected chronic sinusitis with allergic rhinitis have been met. 38 U.S.C.§ 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for an effective date earlier than July 31, 2012 for service connection for chronic sinusitis with allergic rhinitis are not met. 38 U.S.C. §§ 5107, 5110, 7105 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. A substantive appeal may be withdrawn in writing and is effective when received by the RO prior to the appeal being transferred to the Board, or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). At his Board hearing in September 2017, prior to the issuance of a decision by the Board, the Veteran testified that he wished to withdraw his appeal as to the issue of entitlement to increased rating for sinusitis or the allergic rhinitis. He identified the issue withdrawn from the appeal during his hearing to the undersigned Veterans Law Judge of the Board. See Hearing Transcript p. 3. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is therefore dismissed. II. Effective Date for Service Connection Chronic Sinusitis with Allergic Rhinitis 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 Veteran seeks an effective date earlier than July 31, 2012 for the award of service connection for chronic sinusitis with allergic rhinitis. He contends that the effective date of service connection award should be from January 1991 as he made an informal claim to the VA in the early 1990's by presenting himself for treatment to a VA emergency room on several occasions. See May 2013 Notice of Disagreement. The Board will address this contention below. The effective date for an award of service connection based on an original claim generally "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 statutory provision is implemented by regulation, which provides that the effective date for an evaluation for disability compensation is the "date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. The effective date for an award of direct service connection may be established on the day following separation from service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the general rule applies. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). After review of the record, the Board finds that the criteria for an effective date earlier than July 31, 2012, for the award of service connection for chronic sinusitis with allergic rhinitis are not met. At the outset, the Board notes that the mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Although information contained in treatment records may constitute an informal claim, this is only appropriate where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. 38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). Neither of those circumstances was present in this case. In other words, the effective date of service connection is not assigned based on the date the claimant asserts that the disability appeared, or on the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service. Rather, the effective date is assigned based on the date that the application or claim upon which service connection was eventually granted was received by VA. See 38 C.F.R. § 3.400; Lalonde, 12 Vet. App. at 382-83. Here, this case stems from an original claim for service connection for chronic sinusitis with allergic rhinitis filed on July 31, 2012 which was granted by a January 2013 rating decision. In this regard, the Board observes that the RO has assigned the earliest possible effective date for the grant of benefits, the date of receipt of the claim received by VA. As for the Veteran's contention that he made an informal claim by presenting himself to the emergency room and therefore should receive compensation from "January 1991 as per Dallas VA records," the Board disagrees. As noted above, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (holding that section 3.157 applies only to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Moreover, the mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Brannon, 12 Vet. App. at 35; see also Lalonde, 12 Vet. App. at 382 (holding that where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Thus, records of VA treatment for the Veteran's sinus condition do not constitute a request to file a claim for service connection. Additionally, the Board recognizes the Veteran's contention that he told the doctor that he "wanted to be in the VA system" and "I want my benefits and everything like that." See September 2017 Hearing Transcript p. 11. However, such statements made during treatment directed at a physician are insufficient to constitute an informal claim as it was not made to a VA personnel designated to receive such a communication and not recorded in writing. See 38 C.F.R. § 3.1 (p); 3.155(b)(1)(iii). Furthermore, after thorough review of the entire record, the record is absent for any documentation including any correspondence or communication from the Veteran or any representative, which even liberally construed could be deemed to be a claim for service connection. In short, the record includes no statement or communication from the Veteran, prior to July 31, 2012 that constitutes a claim for compensation for chronic sinusitis with allergic rhinitis. According to the applicable regulation, the Board finds the effective date of the Veteran's grant of service connection for chronic sinusitis with allergic rhinitis is July 31, 2012, the date the RO first received any communication indicating an intent to apply for service connection for this disability. See 38 C.F.R. § 3.400(b)(2)(i). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Therefore, the claim for an earlier effective date for the grant of service connection must be denied. In reaching this decision, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not for application in this case because the preponderance of the evidence is against the assignment of an earlier effective date. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER The appeal of the claim of entitlement to an increased rating for chronic sinusitis with allergic rhinitis is dismissed. An effective date earlier than July 31, 2012 for the award of service connection for chronic sinusitis with allergic rhinitis is denied. REMAND Based upon the testimony presented by the Veteran at his September 2017 hearing, the Board finds further development is required prior to final adjudication of the Veteran's claim of service connection for sleep apnea. The Board notes that the Veteran was provided a VA examination in July 2013 for his claimed sleep apnea. But, upon review of the opinion, the Board observes that the examiner only confirmed a diagnosis of sleep apnea. The examiner also found that the condition could be treated with resolution of such symptoms by the use of a CPAP machine. However, there was no opinion provided addressing the etiology of the claimed condition for VA benefits purposes. Further, at his September 2017 hearing, the Veteran testified about his obstructive breathing problems while sleeping and expressed his entitlement to service connection based on his already service-connected sinusitis condition. See Hearing Transcript p. 10. Given the foregoing, on remand, the Board finds that remand is necessary to obtain a VA medical opinion addressing the Veteran's secondary theory of entitlement for service connection. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, to include a copy of this remand, to an appropriate medical professional to provide an opinion for service connection for the claimed sleep apnea. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The claims file must be made available and reviewed by the examiner. A note that it was reviewed should be included in the opinion. After reviewing the claims file and following examination of the Veteran, if deemed necessary, the examiner is to provide an opinion as to the following: a) The examiner is asked to specifically address whether the Veteran's sleep apnea is at least as likely as not (a 50 percent or greater probability) proximately due to or the result of the Veteran's service-connected sinusitis or allergic rhinitis. b) The examiner is also asked to specifically address whether the Veteran's sleep apnea is at least as likely as not (a 50 percent or greater probability) aggravated, beyond the natural progress of the disease, by the Veteran's service-connected sinusitis or allergic rhinitis. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the Veteran's September 2017 hearing testimony setting forth a complete rationale for all findings and conclusions. 2. After completing the above action and any other development deemed necessary, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs