Citation Nr: 18143304 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-22 801A DATE: October 18, 2018 ORDER New and material evidence having been received, reopening of service connection for a lung disability is granted. Entitlement to service connection for a lung disability of pulmonary sarcoidosis is granted. An effective date of July 17, 2009, but no earlier, for the grant of service connection for coronary artery disease (CAD), secondary to service-connected sleep apnea, is granted. FINDINGS OF FACT 1. In a July 1996 rating decision, the RO denied service connection for a lung disability on the basis that the claim was not well-grounded, finding that, although the Veteran was treated in service for a small round density on the lung, there was no permanent residual or chronic disability subject to service connection shown by service or post-service medical records. The Veteran did not file a notice of disagreement. 2. Evidence received since the July 1996 rating decision pertains to current lung disability and nexus to service, so raises a reasonable possibility of substantiating the underlying claim for service connection for a lung disability. 3. The Veteran’s current lung disability is related to in-service, non-calcified pulmonary nodules. 4. The Veteran’s July 17, 2009, increased rating claim for sleep apnea, when considered with the other evidence of record, raised an informal claim of entitlement to service connection for coronary artery disease (CAD), secondary to service-connected sleep apnea. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for a lung disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a lung disability of pulmonary sarcoidosis are met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 3. An effective date of July 27, 2009, is warranted for the grant of service connection for coronary artery disease (CAD), secondary to service-connected sleep apnea. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to June 1996. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2013 rating decision, which granted service connection for coronary artery disease (CAD) secondary to service-connected sleep apnea, effective September 7, 2012, and denied reopening of service connection for a lung disability on the basis that new and material evidence had not been received. Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lung disability before addressing the claim on its merits. See 38 U.S.C. § 7104 (2012); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Claim to Reopen 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. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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 v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen service connection for a lung disability In a July 1996 rating decision, the RO denied service connection for a lung disability on the basis that the claim was not well grounded. The RO found that although the Veteran was treated in service for a small round density on the lung, there was no permanent residual or chronic disability subject to service connection shown by service or post-service medical records. The Veteran was notified of the decision in an August 1996 letter, but did not file a notice of disagreement; therefore, the July 1996 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). In September 2012, the Veteran attempted to reopen service connection for a lung disability. Since the July 1996 rating decision, evidence added to the claims file includes VA treatment records, private treatment records, and a VA examination. VA treatment records reflect that the Veteran was diagnosed with pulmonary sarcoidosis in May 2009. The evidence received since the July 1996 rating decision pertains to current disability and nexus to service, so raises a reasonable possibility of substantiating the underlying claim for service connection for a lung disability. For this reason, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final July 1996 rating decision; therefore, reopening service connection for a lung disability is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Service connection for a lung disability The Veteran contends that service connection is warranted for a lung disability. After a review of all the evidence, the Board finds that there was evidence of in-service lung disease. The service treatment records reflect an April 1980 imaging study that revealed a normal chest, but possible granules in the left lung, smaller than 2-3 millimeters. An April 1982 imaging study revealed a calcified 5-millimeter density in the left lower lung, diagnosed as a possible granuloma. An April 1986 imaging study revealed a small round density in the base of the left lung. Post-service treatment records reflect a July 2008 imaging study revealed a noncalcified nodule in the left lower lung, with small, multiple diffusely-calcified nodules in both lungs. The Veteran was diagnosed with pulmonary sarcoidosis. The evidence shows a current diagnosis of pulmonary sarcoidosis, which is a disease that causes the development of granulomas, which are masses resembling little tumors made up of clumps of cells from the immune system. A January 2016 VA examination report reflects that the Veteran reported being diagnosed with pulmonary sarcoidosis. The Veteran denied any malignancy, but reported having undergone periodic follow-up imaging scans. The Board finds the evidence is at least in relative equipoise on the question of whether the current pulmonary sarcoidosis is related to the in-service lung disease. After taking the Veteran’s history and complaints, reviewing the service and post-service treatment records, and examining the Veteran, the VA examiner in January 2016 opined that it was at least as likely as not that the Veteran’s diagnosed non-calcified pulmonary nodules were incurred in or caused by the nodule on his lungs during service. The VA examiner’s opinion was based on the rationale that there was evidence of the single non-calcified pulmonary nodule in service in April 1985, there was evidence of persistent pulmonary nodules in 2008 and 2015, the condition required periodic follow-up to monitor for development of primary lung malignancy, and there was ongoing evidence of non-calcified pulmonary nodules at present. The evidence of record reflects that the Veteran was diagnosed with a non-calcified pulmonary nodule in service, and continues to have non-calcified pulmonary nodules which requires periodic follow-up. The April 2016 VA examiner has provided a positive nexus opinion linking the Veteran’s current lung disability to his lung disability in service. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for pulmonary sarcoidosis. Earlier Effective Date for Service Connection for CAD Entitlement to an effective date earlier than September 7, 2012, for the grant of service connection for coronary artery disease (CAD) secondary to service-connected sleep apnea. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for coronary artery disease (CAD). Specifically, he contends that the effective date for the grant of service connection should be in January 1999, or the date he had a myocardial infarction and stent placement. Applicable law and regulations concerning effective dates state that, except as otherwise provided, 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 claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a)(b)(1); 38 C.F.R. § 3.400. The effective date for an award of disability compensation based on direct service connection is the day following separation from active service or the date entitlement arose, if claim is received within one year after separation from active duty; otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Under VA regulations, a “claim” means 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). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the law administered by VA. 38 C.F.R. § 3.151. If the Veteran files an informal claim for a benefit, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Any communication or action, indicating an 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 an 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2017); Norris v. West, 12 Vet. App. 413 (1999). In the present case, the Veteran separated from active duty in June 1996. He did not raise a claim for service connection for CAD within one year from service discharge. Rather, the Veteran first filed a formal claim for service connection for CAD on September 7, 2012. The RO granted service connection for CAD in a September 2013 rating decision, effective as of the date of the September 7, 2012 claim for service connection. Because the current effective date of service connection was based upon the date the September 7, 2012 claim (application) for service connection was received, the next question for the Board is whether there are any earlier, non-final claims for service connection upon which an earlier effective date of service connection may be granted. The Board has carefully reviewed the evidence of record and finds that the first communication from the Veteran that can be interpreted as a claim (application) for service connection for CAD was received on July 17, 2009. On July 17, 2009, the Veteran submitted correspondence that indicated that his sleep apnea was affecting his life, and stated “[r]ecent studies tie sleep apnea to coronary artery disease (CAD). I directly attribute my [m]yocardial-infarction (January of 1999) to the lack of treatment for the sleep apnea while I was on active duty. I have been in continual care for CAD since. In summary, the sleep apnea has impacted my life.” The RO interpreted this correspondence as an increased rating claim for sleep apnea and adjudicated the claim in an August 2009 rating decision. The Board finds that the July 17, 2009, correspondence from the Veteran evidenced the belief that CAD is secondary to the service-connected sleep apnea; therefore, this statement constitutes at least an informal claim for benefits as it is evidence of a desire to seek a benefit and identifies the benefits sought. See 38 C.F.R. § 3.1(p). For this reason, an effective date of July 17, 2009 is warranted for service connection for CAD secondary to service-connected sleep apnea. The Veteran contends that the effective date should be in January 1999, the date he claims he had a myocardial infarction and stent placement. The effective date based on an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Washington v. Gober, 10 Vet. App. 391 (1997); Wright v. Gober, 10 Vet. App. 391 (1997). Based on the facts in this case, an effective date earlier than July 17, 2009 is legally precluded. While the Veteran’s CAD may have had its onset years before service connection was granted, it is not equivalent to finding a claim for that disability. The provisions of 38 U.S.C. § 5110 refer to the date an “application” is received. And “date of receipt” means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2017). Accordingly, the proper effective date for the grant of service connection for CAD is the date of the claim, or July 17, 2009. 38 U.S.C. § 5110. (Continued on the next page)   The Board acknowledges the Veteran’s statements that he did not know he could file an earlier claim, and is sympathetic to his contentions. However, the pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by such authority. Pursuant to that authority, the Board finds that there is no legal basis by which an effective date for the award of service connection for CAD earlier than July 17, 2009 can be assigned. Consequently, an effective date of July 17, 2009, but no earlier, will be granted. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel