Citation Nr: 1805545	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-25 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an effective date earlier than July 19, 2011 for the award of service connection for obstructive sleep apnea.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from June 1980 to June 2000.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia.  In that decision, the RO awarded service connection for obstructive sleep apnea, effective from July 19, 2011.  The Veteran timely appealed the assigned effective date.

The Veteran testified before the undersigned Veterans Law Judge at a September 2017 videoconference hearing at the RO.  A transcript of the hearing has been associated with his file.


FINDING OF FACT

A claim of service connection for sleep apnea was received on July 19, 2011; there is no evidence of any unadjudicated formal or informal claim for service connection for a sleep disability prior to that date.


CONCLUSION OF LAW

The criteria for an effective date earlier than July 19, 2011 for the award of service connection for obstructive sleep apnea are not met.  38 U.S.C. §§ 5110 (a) (2012); 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The appeal for an earlier effective date for the award of service connection for obstructive sleep apnea arises from the Veteran's disagreement with the effective date assigned after the grant of service connection for this disability.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of such error in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R. 
 § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (c)(4).

VA has obtained the Veteran's service treatment records and all of the identified relevant post-service treatment records.  In addition, the Veteran was afforded a VA examination to assess the nature and etiology of his sleep apnea and medical opinions were obtained concerning the etiology of the disability.  There is no other reported relevant evidence that remains outstanding.  Further assistance is unlikely to assist the Veteran in substantiating entitlement to an earlier effective date.


II. Analysis

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case.

Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155  (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take.  All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).

The current effective date for the award of service connection for obstructive sleep apnea is July 19, 2011, the date that the Veteran's claim of service connection for this disability was received.  There is no evidence that the Veteran submitted any formal or informal claim of service connection for a sleep disability at any time prior to July 19, 2011 and the Veteran has acknowledged that no such earlier claim was submitted, although he filed earlier claims for service connection for other disabilities.  He essentially contends, however, that he experienced sleep symptoms earlier than July 19, 2011, but that he did not file an earlier claim of service connection for sleep apnea because he was unaware that his symptoms were due to sleep apnea, and that the appropriate effective date should be based on the date of his 2001 claim for service connection for a left shoulder disability.

The Board acknowledges that medical records dated prior to the Veteran's July 2011 service connection claim indicate that he was treated for sleep apnea.  The provisions of former 38 C.F.R. § 3.157 (b)(1) (in effect prior to March 24, 2015) provide that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  However, 38 C.F.R. § 3.157 (b)(1) "makes clear that a medical examination report will only be 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); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA).  This regulation is therefore not for application in connection with the instant appeal.

The fact remains that there is no evidence of any unadjudicated formal claim of service connection for a sleep disability prior to July 19, 2011, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same.  Thus, July 19, 2011 is the earliest possible effective date.  See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  Therefore, the Board finds that there is no basis upon which to justify granting an effective date earlier than July 19, 2011 and the appeal for an earlier effective date for the award of service connection for obstructive sleep apnea must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to an effective date earlier than July 19, 2011 for the award of service connection for obstructive sleep apnea is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs