Citation Nr: 1802023 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-04 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 2. Entitlement to service connection for sleep apnea. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for rectal bleeding, also claimed as hemorrhoids with blood in stool. 4. Entitlement to service connection for rectal bleeding, also claimed as hemorrhoids with blood in stool. 5. Entitlement to an effective date prior to May 27, 2004 for the grant of service connection for patellofemoral syndrome of the right knee (right knee disability). ORDER New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for rectal bleeding is reopened; the appeal is granted to this extent only. Entitlement to an effective date earlier than May 27, 2004 for the grant of service connection for a right knee disability is denied. FINDINGS OF FACT 1. The September 2003 rating decision denying the Veteran's claim of entitlement to service connection for sleep apnea is final; new and material evidence has been received to reopen the claim. 2. The August 1998 rating decision denying the Veteran's claim of entitlement to service connection for rectal bleeding is final; new and material evidence has been received to reopen the claim. 3. The date of May 27, 2004 is the earliest possible effective date for the award of service connection for a right knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received and the claim of entitlement to service connection for rectal bleeding is reopened. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for an effective date earlier than May 27, 2004 for the award of service connection for a right knee disability have not been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to February 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. The reopened claims of sleep apnea and rectal bleeding are being remanded for further development. 1. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In general, Board decisions which are unappealed become final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. The Veteran has claimed entitlement to service connection for sleep apnea and rectal bleeding. The claim for sleep apnea was previously denied in a September 2003 rating decision because there was no evidence of any complaints, treatment or diagnosis for the condition in service and no evidence that the disorder that the Veteran experienced was in any way related to his active service, or any incidents therein. The RO again considered the claim in an August 2010 rating decision. At that time, the RO denied the claim as new and material evidence had not been submitted. The RO noted that although the treatment record reflected a diagnosis of sleep apnea, there was no evidence showing the condition was due to military service. The Veteran did not perfect an appeal of either rating decision and they became final. 38 C.F.R. § 20.1103. Concerning the sleep apnea, the newly submitted evidence includes buddy statements from D.G. and E.J.H. who served with the Veteran. Both service members attested to the Veteran snoring loudly during service and complaining of tiredness and fatigue during the day. D.G. further noted there were random periods of the snoring stopping and the Veteran appearing to not breathe during the night. Thus, the Veteran has presented evidence that speaks directly to an element which was not of record, mainly evidence of symptoms during service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, presumed credible, new and material evidence has been received and the claim is reopened Concerning the rectal bleeding, the claim was initially denied in an August 1998 rating decision because there was no evidence that the Veteran experienced a chronic disorder. The RO again considered and denied a claim for rectal bleeding in a September 2004 rating decision. At that time, the RO denied the claim as new and material evidence had not been submitted as although the Veteran was seen for hemorrhoidal pain, there objective findings did not reflect hemorrhoids and treatment records were negative for a diagnosis. The Veteran did not appeal the rating decision concerning the issue of rectal bleeding and thus they became final as to that issue. 38 C.F.R. § 20.1103. The evidence received since the August 1998 rating decision includes private treatment records and VA treatment records which reflect treatment for current disabilities. For example, multiple medical records starting in June 2004 have shown that the Veteran experienced anal fissures. See June 2004 private treatment records. Medical records from October 2014 showed that the Veteran started experiencing hemorrhoids for "approximately 2 months." See October 2014 private treatment records. In the present case, the Veteran has presented evidence that speaks directly to an element which was not of record, mainly a current disability. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, presumed credible, new and material evidence has been received and the claim is reopened. 2. Earlier Effective Date The Veteran seeks an effective date earlier than May 27, 2004 for the grant of service connection for his right knee disability. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a)-(b)(1) (2012); 38 C.F.R. § 3.400 (b)(2) (2017). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2017). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155 (a) (2017). The provisions of 38 U.S.C. § 5101 (a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id. The word "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2017); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a) (2017). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101 (2012); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157 (b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). Following a review of the pertinent evidence of record in light of the above-cited legal authority, the Board finds that earlier effective dates for service connection of the Veteran's claim is legally precluded. In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the facts in the instant case, the Veteran initially submitted a claim for service connection for a right knee disability in March 1998. An August 1998 rating decision denied the claim due to lack of a diagnosis of a right knee disability. The denial was based, in part, on the fact that the May 1998 examiner noted that the Veteran's "knees may hurt sometimes," but that there was no diagnosable chronic right knee disorder. Veteran appealed the decision, and the normal appeals process followed. Eventually, in a March 2000 decision, the Board denied service connection for a right knee disability on the basis that the Veteran did not have a diagnosis of a right knee disorder. As such, the prior dates of claims are not the appropriate point from which to determine the effective date of an award. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). To the extent the Veteran seeks an effective date prior to March 2000, he must file a claim of clear and unmistakable error concerning the prior rating decision. Rudd, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision as free-standing claims for earlier effective dates vitiate the rule of finality). The Veteran filed a claim to reopen the claim for a right knee disability in May 2004. A September 2004 rating decision denied the claim, as no new and material evidence has been received to reopen it - the Veteran still did not have a diagnosis of a right knee disorder. The Veteran appealed. A December 2009 rating decision granted service connection for a right knee disability, effective May 27, 2004. The grant was based on the fact that the Veteran was diagnosed with chronic patellofemoral syndrome in October 2009 - he now had a diagnosis for which VA could grant him service connection. See October 2009 VA examination. The Veteran asserts that the effective date for his claim should be prior to May 27, 2004. The Board disagrees. The Board concludes that the date on which the Veteran initially filed his claim for service connection is not relevant in the present context. This is so because a date of entitlement earlier than the current effective date could not result in an earlier date; as noted above, the effective date will be the date of receipt of a claim to reopen or the date entitlement arose, whichever is the later. In this case, May 27, 2004 - the date of receipt of the application to reopen - is the earliest date that service connection may be awarded. Because the AOJ denied the Veteran's initial claim in August 1998, and then the Board denied the claim in a March 2000 decision that had become final, the date of filing of that claim, or any prior claim, is not applicable to the assignment of an effective date in this case. To the extent to which the Veteran filed prior service connection claims for knee disorders, these were properly adjudicated by the RO, and those decisions subsequently became final. 38 C.F.R. § 20.1103. Accordingly, as explained above, only a claim for CUE can result in an earlier effective date given these facts. Rudd, 20 Vet. App. at 300. In sum, the Veteran's most recent claim for service connection for a right knee disability was received on May 27, 2004. A review of the post-service treatment records and examination shows that the earliest evidence reflecting a diagnosis of right shoulder strain was the October 2009 VA examination. Before that date, the Veteran did not have a diagnosis of a right knee disability - there was nothing to service-connect before that date. Accordingly, an effective date earlier than May 27, 2004, the date that the Veteran refiled his claim for service connection, must be denied. REMAND Having reopened the claim for rectal bleeding the Board finds a VA examination is necessary. Specifically, the Veteran has provided evidence of current diagnoses and has alleged in statements that this condition is related to the symptoms of rectal bleeding he noticed during service. Similarly, concerning the sleep apnea, the Veteran has presented evidence of snoring during service. VA examinations have not yet been provided to the Veteran and should be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed disability related to rectal bleeding. All testing deemed necessary must be conducted and results reported in detail. The examiner should provide opinions as to the following: whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability, including, but not limited to anal fissures and hemorrhoids, was incurred in or aggravated by military service. The examiner must discuss the lay reports of symptoms of rectal bleeding during service. A thorough rationale should be provided for all opinions expressed. 2. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed disability related to sleep apnea. All testing deemed necessary must be conducted and results reported in detail. The examiner should provide opinions as to the following: whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed sleep apnea, was incurred in or aggravated by military service. The examiner must discuss the lay reports of symptoms of snoring and appearing not to breathe during service. A thorough rationale should be provided for all opinions expressed. 3. After completing the above, and conducting any additional development deemed necessary, readjudicate the claims for service connection. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a SSOC. 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. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: The American Legion Department of Veterans Affairs