Citation Nr: 18144230 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-24 930 DATE: October 25, 2018 ORDER Entitlement to an effective date earlier than November 8, 2014 for a 20 percent rating for service-connected medial meniscus tear is denied. Entitlement to an effective date earlier than November 8, 2014 for a noncompensable rating for limitation of extension of the right knee is denied. Entitlement to an effective date earlier than November 8, 2014 for a 10 percent rating for limitation of flexion of the right knee is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT The appellant’s claim for an increased rating for his service-connected right knee disability was received by VA on November 8, 2014. The record does not contain any evidence which might be considered an informal claim for benefits prior to this date, and it cannot be ascertained from the record that any increase in the appellant’s knee symptoms occurred in the year prior to the date of receipt of his claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than November 8, 2014 for a 20 percent rating for service-connected medial meniscus tear have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for entitlement to an effective date earlier than November 8, 2014 for a noncompensable rating for limitation of extension of the right knee have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for entitlement to an effective date earlier than November 8, 2014 for a 10 percent rating for limitation of flexion of the right knee have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Air Force from October 1975 to July 1998. This matter comes to the Board of Veterans Appeals’ (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for sleep apnea; increased the rating for the appellant’s service-connected residuals of a right knee medial meniscal tear manifested by instability from 10 to 20 percent, effective November 8, 2014 (Diagnostic Code 5257); assigned a separate 10 percent rating for impairment of the right knee based on limitation of flexion, effective November 8, 2014 (Diagnostic Code 5260); and assigned a separate noncompensable rating based on impairment of the right knee based on limitation of extension, effective November 8, 2014 (Diagnostic Code 5261). In November 2015, the appellant submitted a notice of disagreement with the denial of service connection for sleep apnea and the effective date of the award of the increased rating for his service-connected right knee disability. A Statement of the Case was issued in April 2016 and the appellant perfected an appeal in May 2016. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final disallowance, or a claim for increase “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increased in disability had occurred, if an application is received within one year from such date. Otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). In other words, three possible effective dates may be assigned depending on the facts of the case. First, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 521 (1997); see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). The “date of the claim” means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are defined broadly to include “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), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that 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 underlying 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. See 38 C.F.R. § 3.157 (2014). 1. Entitlement to an effective date earlier than November 8, 2014 for a 20 percent rating for service-connected medial meniscus tear, a separate noncompensable rating for limitation of extension of the right knee, and a separate 10 percent rating for limitation of flexion of the right knee, is denied. The appellant asserts that an effective date earlier than November 8, 2014 is warranted for the increase in rating for his residuals of a right meniscus tear, as well as the grant of separate ratings for limitation of flexion of the right knee and limitation of extension of the right knee. While he does not contend that his claim was filed prior to that date, he asserts that the effective date should be assigned based on the date entitlement arose, which he claims is February 9, 2007, corresponding to a surgical procedure he underwent. After a review of the evidence of record, the Board finds no basis to grant an earlier effective date for any of the appellant’s right knee ratings. A review of the record shows that in a December 1998 rating decision, the RO granted service connection for residuals of a right knee meniscal tear and assigned an initial 10 percent rating, effective August 1, 1998, the day following the date of the appellant’s separation from active service. The 10 percent rating was based on a finding of instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (the rating criteria for evaluating impairment of the knee based on instability and recurrent subluxation). The appellant was informed of this decision and his appellate rights in a January 25, 1999 letter. The appellant did not appeal the decision nor was new and material evidence received within 1 year of this letter. Thus, the decision is final. In the period from January 1999 to November 2014, the appellant did not submit any statements to VA which could be considered an informal claim for an increased rating for his service connected right knee disability. The documents in the appellant’s file from this period are predominantly associated with verifying and certifying the appellant’s dependents, for purposes of entitlement to dependent compensation. The record also does not contain any documents prior to November 2014 which could be considered an intent to file. In February 2007, the appellant underwent arthroscopic surgery on his right knee at the Sacred Heart Medical Center in Spokane, Washington. This surgery was not completed at a VA facility, it was not completed by a VA doctor, and records were not forwarded to the VA Regional Office at the time of the operation, or at any time prior to November 8, 2014. On November 8, 2014, VA received the appellant’s claim for an increased rating for his service-connected right knee disability. The appellant, across many statements in support of his claim, does not dispute this fact. In connection with his claim, the appellant submitted a Disability Benefits Questionnaire completed by his private physician that measured the severity of his right knee disability. This document, however, does not provide a basis upon which to ascertain that the appellant’s right knee disability increased in severity in the year prior to the date of receipt of his claim, nor is there any other evidence of record from which to ascertain an increase in disability in the year prior to the date of receipt of the claim. The appellant has argued that an earlier effective date is warranted as he underwent right knee surgery in 2007. To the extent that this surgery constitutes an increase in disability, however, an earlier effective date would not be warranted as the increase preceded the date of receipt of the claim by more than one year. The appellant has asserted in numerous written statements that VA failed in its duty to assist by not informing him that he was eligible to apply for an increased rating for his right knee disability earlier. The appellant argues that VA should have sent him, and should send all veterans receiving disability benefits, a yearly letter inviting him to apply for an increased rating. In this regard, VA’s duty to notify and assist is limited to situations where VA has received a complete or substantially complete application for benefits sought. 38 C.F.R § 3.159(a)-(b). A substantially complete application is one which contains a claimant’s name, the benefit claimed and any associated medical conditions, and the claimant’s signature. 38 C.F.R. § 3.159(a)(3). If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. 38 C.F.R. § 3.159(b)(2). As noted above, prior to November 8, 2014, VA had received neither a complete, nor even a substantially complete application for an increased rating from the appellant. Further, there is no record of an incomplete claim being submitted regarding an increased rating for the appellant’s right knee. Again, the appellant has not contended that he submitted a claim for an increased rating earlier than November 8, 2014. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA does not have the duty to provide personal notice of potential eligibility for VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). Therefore, while it is unfortunate that the appellant was unaware of his potential eligibility for VA benefits, that factor does not provide a basis for an allowance of this appeal. The Board has also considered the appellant’s written statement from November 2015, in which he acknowledges that VA’s regulations should require VA to use the date of the receipt of his claim as the effective date of his increase, but wherein he argues VA should set this aside as it would do him a “major disservice” in the form of not receiving 7 years of back pay. To the extent that the appellant argues that the claim should be granted on the basis of equity, the Board is bound by the applicable statutes as enacted by Congress and the corresponding implementing regulations. The Board is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. See OPM v. Richmond, 496 U.S. 414, 434 (1990). As such, the Board finds that as the appellant’s application for an increased rating was received on November 8, 2014, the preponderance of the evidence is against the assignment of earlier effective dates and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The appellant contends that his obstructive sleep apnea was incurred during his active service. In the alternative, he has asserted that it is either secondary to, or aggravated beyond its normal progression by his service-connected chronic allergic rhinitis with sinusitis. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The appellant underwent a VA examination in relation to this claim in May 2015. At the time of the examination, the examiner only considered the question of whether it was at least as likely as not that the appellant’s obstructive sleep apnea was proximately due to his service-connected allergic rhinitis. No opinion was offered on whether the appellant’s obstructive sleep apnea was incurred in service or whether the condition is aggravated beyond its normal progression by the appellant’s service connected allergic rhinitis. The appellant’s service treatment records are negative for complaints or findings of sleep apnea. Post-service treatment records the appellant submitted with his initial claim indicate that in January 2003, the appellant sought treatment for significant snoring. He was noted to have an Epworth Sleepiness scale of 10/24. The appellant reported that his symptoms were chronic but had been worse in the last three years. Further treatment records do not diagnose the appellant with obstructive sleep apnea until March 2009. The appellant has submitted his own lay statements, and statements from his wife, that he has had significant issues with snoring and daytime tiredness since the early to mid-1980’s. The appellant submitted a November 2015 statement from his treating physician which stated that the appellant’s history of severe sinus rhinitis, nighttime snoring, and challenging respiratory issues in service are all associated with his obstructive sleep apnea. The appellant also submitted a December 2017 statement from his treating physician who indicated that the appellant’s chronic rhinitis, while not the proximate cause of his sleep apnea, may be exacerbating the appellant’s obstructive sleep apnea. The Board finds this determination speculative, but as it raises an issue that was not addressed by the VA examiner, requires remand for an addendum opinion. The matter is REMANDED for the following action: 1. Schedule the appellant for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. After examining the appellant and reviewing the record, the examiner provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the appellant’s current obstructive sleep apnea had its inception during service or is otherwise related to the appellant’s active service. This does not require that the disability to have been diagnosed in service, merely that it developed during the appellant’s roughly 20-year active duty period. This determination can be made based on the symptoms that the appellant and his wife have reported he has experienced since the 1980’s. A mere lack of an in-service diagnosis is insufficient for establishing an adequate basis for a negative nexus opinion. The examiner must consider the lay statements of the appellant and his spouse that he began to have significant and chronic nighttime snoring in the 1980’s. The examiner should also consider whether the appellant’s obstructive sleep apnea was incurred prior to its official diagnosis in March 2009, considering the severity of symptoms reported to the appellant’s treating physician in January 2003, and the symptoms the appellant and his wife have testified he experienced back to the 1980’s. The examiner should also opine as to whether the appellant’s obstructive sleep apnea is at least as likely as not (1) proximately due to his service-connected chronic rhinitis and sinusitis, or (2) aggravated beyond its natural progression by his chronic rhinitis and sinusitis.   The examiner must consider the medical opinion of the appellant’s treating physician who stated that the appellant’s chronic rhinitis could exacerbate the appellant’s obstructive sleep apnea and that all the appellant’s in-service respiratory problems are associated with his sleep apnea. Again, the examiner should consider the statements by the appellant and his spouse on the nature, onset, and duration of his symptoms. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel