Citation Nr: 1805792 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-01 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than May 6, 2010, for the grant of service connection for sleep apnea (now rated as asthma and sleep apnea). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1986 to May 2002, including service in the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the October 2011 rating decision, the RO granted service connection for sleep apnea with a 50 percent disability rating, effective May 6, 2010. In a March 2003 rating decision, in pertinent part, the RO granted service connection for asthma with a 30 percent disability rating, effective May 22, 2002. In a January 2016 rating decision, in pertinent part, the RO merged the Veteran's rating for asthma into the rating for sleep apnea, resulting in a single 50 percent rating for asthma and sleep apnea. The issue on appeal has been recharacterized to reflect this change. In March 2017 and December 2017 statements, the Veteran's representative included argument with regard to the effective date of the grant of eligibility to Dependents' Educational Assistance. In a November 2013 rating decision, the RO granted basic eligibility to Dependents' Educational Assistance, effective November 21, 2013. The Veteran submitted a Notice of Disagreement (NOD) with the effective date of this grant in January 2014. The Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) in June 2016. The Veteran did not perfect an appeal with regard to this issue, and the period for an appeal has now expired. 38 C.F.R. § 20.302 (2017). As such, this issue is not before the Board. FINDINGS OF FACT 1. The Veteran's claim for service connection for abnormal sleep and snoring was denied in a March 2003 rating decision. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 2. The Veteran's request to reopen his claim for service connection for posttraumatic stress disorder (PTSD) with symptoms of abnormal sleep problems and night sweats was denied in an August 2006 rating decision for lack of new and material evidence. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. (Service connection for PTSD and adjustment disorder with mixed emotional features was granted in an August 2011 rating decision and merged with a prior evaluation for depressive disorder. This issue is not before the Board.) 3. The next communication seeking service connection for sleep apnea was received on May 6, 2010. There is no indication of an attempt to reopen the claim between August 2006 and May 6, 2010. 4. An October 2011 rating decision reopened and granted the claim for service connection for sleep apnea, effective May 6, 2010, based on new and material evidence that had been submitted since the March 2003 rating decision. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 6, 2010, for the grant of service connection for sleep apnea (now rated as asthma and sleep apnea) are not met. 38 U.S.C. §§ 5101, 5107, 5108, 5110, 7105 (2012); 38 C.F.R. §§ 3.104, 3.400, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the current claim. 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's argument with regard to the previously-denied claim will be addressed below. The Veteran asserts that he should be granted an effective date earlier than May 6, 2010 for service connection for sleep apnea. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that the effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA). The Veteran first submitted a claim for entitlement to service connection for abnormal sleep and snoring in October 2001. VA denied this claim in March 2003 and the Veteran did not submit a notice of disagreement or additional evidence within the one year period following the decision. The Veteran submitted a request to reopen his claim for entitlement to service connection for abnormal sleep problems and night sweats in August 2005. VA denied that request (by considering abnormal sleep problems and night sweats as symptoms of PTSD, for which the RO also denied the Veteran's request to reopen a claim for service connection) in an August 2006 rating decision, and the Veteran did not submit a notice of disagreement or additional evidence within the one year period following the decision. Both decisions became final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Board has reviewed the claims file for any document, submitted after the August 2006 rating decision but before the Veteran's May 6, 2010 claim, that could be considered a claim for service connection. Lalonde, 12 Vet. App. at 381. Prior to March 24, 2015, a "claim" is defined as "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) (2015). Any communication or action that (1) indicates an "intent to apply for one or more [VA] benefits" and (2) "identif[ies] the benefit sought" may be considered an informal claim. 38 C.F.R. § 3.155(a) (2015). The Board has found no communication from the Veteran to VA that could be construed as a claim for benefits prior to the claim submitted on May 6, 2010. Moreover, neither the Veteran nor his representative assert that the Veteran filed an informal or formal claim during this time. In order for the Veteran to be awarded an effective date based on the claims that were denied in the March 2003 or August 2006 rating decisions, he has to show clear and unmistakable error (CUE) in one of the prior denials as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Neither the Veteran nor his representative have raised CUE to overcome the finality of the March 2003 or August 2006 rating decisions denying service connection. Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. In August 2013 and October 2013 statements, the Veteran contends that VA erred at the time of the previous denials by not affording him a VA examination. Neither the Veteran nor his representative have contended that this alleged error constituted CUE. Even if they had, it is well settled that "[t]he requirements that a clear and unmistakable error be outcome determinative and be based on the record at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim." Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2002) (emphasis added). Hence, as the decision of whether or not to afford the Veteran a VA examination falls within VA's duty to assist, even if the Veteran had contended that this decision constituted CUE, that contention would have to be denied as a matter of law. The Board also notes that, in December 2010, the Board received a copy of a July 1999 service treatment record that was not among those previously associated with the file. At any time after VA issues a decision on a claim, if relevant official service department records are obtained that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c)(1)(i) (2017). This new record notes that the Veteran reported snoring and poor sleep during his active duty service. This was already noted in the service treatment records associated with the file at the time of the March 2003 rating decision: specifically, a December 1998 record noted snoring and a questionnaire dated July 1997 or October 1999 (the date is ambiguous) noted frequent or loud snoring and occasional cessation of breath while sleeping. Because the information contained in this new record is cumulative of information already of record, the Board finds that it is not a "relevant" record as required by 38 C.F.R. § 3.156(c) and that it therefore has no effect on the finality of the March 2003 or August 2006 rating decisions. For these reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than May 6, 2010 for service connection for sleep apnea, which is the date of his application to reopen. ORDER Entitlement to an effective date earlier than May 6, 2010 for service connection for sleep apnea (now rated as asthma and sleep apnea) is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs