Citation Nr: 1805845 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-21 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than January 28, 2011, for the award of service connection for sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty service from February 1993 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2017, the Veteran provided testimony before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. On February 24, 2010, the RO received the Veteran's original claim for service connection for sleep apnea. 2. There is no competent medical evidence showing a diagnosis of sleep apnea prior to January 28, 2011. CONCLUSION OF LAW An effective date earlier than January 28, 2011, for the award of service connection for sleep apnea is not warranted. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Earlier Effective Date The Veteran is seeking an effective date earlier than January 28, 2011, for the award of service connection for sleep apnea. Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. §§ 3.400, 3.401 (2017). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, 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 claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. The service treatment records revealed that the Veteran had difficulty breathing while sleeping. The examiner ruled out sleep apnea pending a sleep study. The Veteran initially filed a claim for service connection for sleep apnea on February 24, 2010. Importantly, a sleep study conducted on June 16, 2010 showed that the Veteran's sleep efficiency was poor and that he had trouble initiating and maintaining sleep. He was not diagnosed as having sleep apnea. The records indicate that another sleep study was recommended with a help of a sleep aid. A January 28, 2011 sleep study confirmed a diagnosis of severe obstructive sleep apnea syndrome. As such, the RO granted service connection for sleep apnea with an effective date of January 28, 2011, the date that the disability was diagnosed. While the Veteran asserts entitlement to an earlier effective date, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. In the instant case, the Veteran's initial claim was not received within one year from the date of his separation from service. Thus, the effective date shall be the later of the date such claim for service connection was received by VA or the date the disability arose. See 38 C.F.R. § 3.816(2). In this case, the evidence clearly shows that at the time of the Veteran's claim in February 2010, he had not been diagnosed with sleep apnea. Pertinently, a definitive diagnosis of sleep apnea was not made until the January 28, 2011 sleep study, although an earlier sleep study had been performed after the the Veteran's claim in February 2010. As noted above, a sleep study conducted on June 16, 2010 showed that the Veteran's sleep efficiency was poor and that he had trouble initiating and maintaining sleep. However, he was not diagnosed as having sleep apnea. Based on the competent medical evidence of record, a diagnosis of sleep apnea was not confirmed by medical professionals prior to January 28, 2011, which was after the date of claim. Under the circumstances, the Board must find that the appropriate effective date for the award of service connection is the date entitlement arose. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the award of service connection for sleep apnea earlier than January 28, 2011 is assignable, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than January 28, 2011, for the award of service connection for sleep apnea is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs