Citation Nr: 18141371 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-30 323 DATE: October 10, 2018 ORDER Entitlement to an effective date earlier than January 23, 2014 for the 30 percent rating for the service-connected sleep apnea is denied. Entitlement to an effective date earlier than March 31, 2014 for the 50 percent rating for the service-connected sleep apnea is denied. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for his service-connected sleep apnea in May 2014. 2. On January 23, 2014, the evidence documents the Veteran’s sleep apnea caused persistent daytime hypersomnolence. 3. On March 31, 2014, the Veteran was prescribed a CPAP machine to treat his sleep apnea. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 23, 2014 for the 30 percent rating for the service-connected sleep apnea have not been met. 38 U.S.C. 5103A, 5107, 5110 (2012); 38 C.F.R. 3.102, 3.156, 3.159, 3.400 (2017). 2. The criteria for an effective date earlier than March 31, 2014 for the 50 percent rating for the service-connected sleep apnea have not been met. 38 U.S.C. 5103A, 5107, 5110 (2012); 38 C.F.R. 3.102, 3.156, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2016, the RO determined a clear and unmistakable error had been made when evaluating the service-connected sleep apnea and retroactively increased the Veteran’s rating to 30 percent disabling, effective January 23, 2014, and maintained the 50 percent rating’s effective date of March 31, 2014. The RO then certified both earlier effective date issues to the Board. The record shows that the Veteran submitted VA Form 21-22 appointing the Texas Veterans Commission (TVC) as his representative to VA in October 2017, which was received on October 26, 2017. The TVC also forwarded a copy of the Veteran’s VA Form 21-22 to VA, which was received on October 30, 2017. On November 1, 2017, a copy of the original VA Form 21-22 was associated with the claims file marked “revoked.” There is no evidence the revocation was authorized by the Veteran or initiated by his representative; instead, it appears to be a mistake. In April 2018, VA attempted to determine whether the Veteran intended to revoke authorization for the TVC but he did not respond and subsequent documents show he was incarcerated in early April 2018. As the Veteran did not explicitly revoke TVC’s representation and the TVC did not submit a motion to withdraw, the TVC remains the Veteran’s authorized representative. Entitlement to earlier effective dates is denied. The Veteran seeks effective dates earlier than January 23, 2014 for the 30 percent rating and earlier than March 31, 2014 for the 50 percent rating for his service-connected sleep apnea. Specifically, he contends that higher ratings should date back to December 9, 1995 because he was diagnosed with sleep apnea in service. By way of background, the Veteran filed his initial claim for service connection for sleep apnea in December 1995. In a December 1996 rating decision, the RO granted service connection for sleep apnea, effective December 9, 1995, the date the Veteran separated from service. The Veteran did not file a notice of disagreement or new and material evidence within the appropriate period and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103. In May 2014, the Veteran filed a claim for an increased rating for his service-connected sleep apnea. A 50 percent rating was granted in September 2014, effective March 31, 2014, and the present appeal stems from that rating decision. The effective date for an increased rating is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred, if a claim is received within one year from such date; otherwise, the effective date for the increased rating is the date the claim for increase was received or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). After review of the lay and medical evidence, the Board finds that the Veteran’s May 2014 increased rating claim is the earliest communication received after the final December 1996 decision that can be construed as a formal or informal claim for an increased rating, and the Veteran has not argued otherwise. To obtain an increased rating earlier than May 2014, the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. Thus, the earliest possible effective date in this case is May 14, 2013, or one year prior to the date the increased rating claim was filed. The Veteran’s VA medical records from October 2013 to May 2014 are associated with the claims file. In October 2013, the Veteran presented for a new patient appointment to establish care through VA. He was referred to the sleep clinic for a consultation, which occurred on January 23, 2014. At that visit, he reported that he was never prescribed a CPAP unit. He complained of frequent awakenings, loud snoring, witnessed apneas, and excessive daytime fatigue and sleepiness, but denied gasping and choking. The assessment was history of obstructive sleep apnea, status post septoplasty, with suspicion that the sleep apnea never resolved. Because the evidence documents persistent day-time hypersomnolence on January 23, 2014, within the one-year period prior to May 2014, a 30 percent rating is warranted effective January 23, 2014. An earlier date is not warranted because there is no evidence of daytime hypersomnolence prior to January 23, 2014 and within the one-year period prior to May 2014. On March 31, 2014, he underwent a sleep study and was diagnosed with mild obstructive sleep apnea, for which he was prescribed a CPAP machine. Because the evidence shows the Veteran’s sleep apnea required use of a CPAP machine on March 31, 2014, within the one-year period prior to May 2014, a 50 percent rating is warranted effective March 31, 2014. An earlier date is not warranted because there is no evidence that his sleep apnea required a CPAP machine prior to March 31, 2014 and within the one-year period prior to May 2014. The Board has considered the Veteran’s contention that he is entitled to an effective date of December 9, 1995 for his higher ratings. Essentially, he seeks entitlement to an earlier effective date for the initial noncompensable rating established in the final December 1996 rating decision. There is no legal basis, however, for a free-standing earlier effective date claim from issues addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The only way the Veteran could obtain an earlier effective date for his initial rating is to request a revision of the December 1996 decision based upon clear and unmistakable error (CUE). See Flash v. Brown, 8 Vet. App. 332, 340 (1995). He has not asserted with the requisite specificity in this appeal, however, that there was CUE in the December 1996 rating decision and this issue is not before the Board. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). The Board considered the sleep apnea disability benefits questionnaire he submitted in February 2015 to support his claim that he is entitled to a December 9, 1995 effective date for his increased ratings. Again, in this case, the earliest possible date is May 14, 2013. The Board notes, however, that merely because the sleep apnea was initially diagnosed in service does not automatically entitle the Veteran to a 30 percent or higher disability rating. A noncompensable rating is warranted where the sleep apnea is asymptomatic but with documented sleep disorder breathing. In sum, the Veteran did not file a communication prior to May 2014 that could be construed as an increased rating claim and the evidence does not show entitlement to 30 percent or 50 percent ratings prior to January 23, 2014 and March 31, 2014, respectively. Accordingly, the claims for earlier effective dates are denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel