Citation Nr: 18144374 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-33 058 DATE: October 24, 2018 ORDER The appeal of the issue of entitlement to service connection for obesity is dismissed. Entitlement to service connection for sleep apnea as secondary to service-connected asthma is granted. Entitlement to an effective date earlier than November 5, 2012 for the grant of service connection for asthma, is denied. FINDINGS OF FACT 1. In a written statement received in August 2018 the Veteran’s representative withdrew the appeal in the matter of service connection for obesity. 2. The Veteran’s obstructive sleep apnea is proximately due to his service-connected asthma. 3. In June 1992 the Veteran filed a claim for only service connection for high blood pressure. He did not include a claim for asthma. 4. In December 2013, the RO granted service connection for asthma, and assigned effective date of November 5, 2012, the date the claim was filed. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue service connection for obesity has been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 2. The criteria for secondary service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for an effective date earlier than November 5, 2012, for the award of service connection for asthma have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2013, June 2014, and May 2017 rating decisions. The Veteran has submitted additional evidence with a waiver of RO jurisdiction consideration. 38 C.F.R. §§ 19.31, 20.1304. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. By a statement received in August 2018, the Veteran’s representative withdrew his appeal seeking service connection for obesity. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the claim and it is dismissed. Service Connection On August 2016 VA examination show the Veteran has a current diagnosis of obstructive sleep apnea based on an October 2013 sleep study, and in March 2018 a private examiner opined that it is at least as likely as not proximately due to his service-connected asthma. On August 2016 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely than not proximately due to or the result of his service-connected asthma or hypertension because it is characterized by recurrent collapse of the upper airway during sleep resulting in substantially reduced flow of air into the lungs despite ongoing breathing efforts. She specifically noted that asthma and hypertension are not risk factors for sleep apnea. However, the Veteran submitted medical journal articles documenting the link between both asthma and hypertension with sleep apnea. The March 2018 private examiner reviewed the Veteran’s claims file as well as the current medical literature. He noted that “the medical literature widely recognizes that asthma causes obstructive sleep apnea.” He explained that the Veteran had a 75 percent probability that his obstructive sleep apnea was caused by his asthma, so accordingly it is more likely than not that his obstructive sleep apnea was caused by his asthma. Accordingly, as the March 2018 private examiner reviewed the Veteran’s claim file and specifically addressed the current medical literature, the Board finds his opinion more probative than the August 2016 VA examiner. Service connection is warranted. Effective Date In the December 2013 rating action on appeal, service connection was granted and an initial 30 percent rating assigned for asthma, effective November 5, 2012, a date the RO cited as the date of claim. The Veteran claims an effective date of June 2, 1992, is warranted because VA should have inferred a claim of service connection for asthma when it addressed his claim of service connection for hypertension in a November 1992 rating decision. He maintains that the documentation of a “Clinical History of Intermittent Dyspnea” in his service treatment records (STRs) raised a claim for asthma that was not addressed in the November 1992 rating decision. The Board concludes that an effective date earlier than November 5, 2012 is not warranted. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). Although the RO included consideration of whether an earlier effective date is warranted based on the basis of clear and unmistakable error (CUE) in the November 1992 rating decision, the Board finds the issue turns on when a claim was filed. The Veteran claims the RO failed to give a sympathetic reading of the record and failed to adjudicate a claim for asthma based on an inferred issue in June 1992. He specifically contends that documentation in an April 1992 STR that he had a “Clinical History of Intermittent Dyspnea,” should have been considered an inferred issue for asthma, which the rating decision subsequently failed to address. Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 7660 (Sept. 25, 2014). The claim on appeal and his alleged informal claim were filed in November 2012, so the Board has included analysis as to informal claims. Effective prior to March 2015, and applicable to this case, is the regulation that provided that communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her 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. 38 C.F.R. § 3.155 (a). 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. Id. Such informal claim must identify the benefit sought. Id. The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79 (2009). VA must fully and sympathetically develop a veteran’s claim to its optimum before reaching the claim on its merits. Hodge v. West, 155 F.3d 1356, (Fed. Cir. 1998). Although “a claimant’s identification of the benefit sought does not require any technical precision,” the Board is not required to “conjure up issues that were not raised by the claimant.” Brokowski, 23 Vet. App. at 88. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits “by referring to a body part or system that is disabled or by describing symptoms of the disability.” DeLisio v. Shinseki, 25 Veteran .App. 45 (2011). In June 1992, the Veteran submitted an Application for Compensation and specified the nature of the claimed disability as “high blood pressure.” In a November 1992 rating decision, service connection for hypertension (high blood pressure) was granted, effective June 2, 1992. The rating decision did not discuss the Veteran’s documented history of dyspnea in his STRs. In November 2012 the Veteran submitted a claim for dyspnea, and asserted that the effective date should be the date of his original June 1992 claim. The Board finds that the June 1992 claim for compensation did not include a claim of service connection for asthma and there was no duty on VA’s part to infer such a claim. The specific reference to “high blood pressure” as the claimed disability does not describe the nature of a respiratory disability (asthma) or refer to a disability involving the respiratory system. Brokowski, 23 Vet. App. at 84. The Veteran asserts that the documentation in his STRs for a history of dyspnea should have been read as an inferred claim for asthmas. It is not in dispute that the Veteran’s STRs document asthma, as the December 2013 rating decision granted service connection based on that fact. However, notation of treatment during service does not determine the effective date for an award of VA benefits. Medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155 (a), “because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). Further, VA is not obligated to anticipate claims for disabilities yet to be identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during its development. Brokowski, 23 Vet. App. at 88. There was no competent lay evidence of a respiratory disability at the time of the June 1992 claim as the Veteran made no reference to such a disability in his claim. There was also no medical diagnosis of asthma at that time. As noted in the November 1992 rating decision, the hypertension claim was granted based on a review of STRs alone because the Veteran failed to report to a VA examination. (Continued on the next page)   There is no correspondence, communication or record prior to the November 2012 claim that could be considered a claim of service connection for a respiratory disability. As the effective date of an award of service connection is the later of either the date of the receipt of the claim or the date entitlement arose, an effective date prior to November 5, 2012 for the grant of service connection for asthma is denied. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel