Citation Nr: 18146368 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-21 090 DATE: October 31, 2018 ORDER The Veteran has shown good cause as to why he did not submit a timely notice of disagreement with a January 2010 rating decision denying service connection for a number of issues. The appeal as to the finding of untimeliness is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left upper extremity radiculopathy is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for bilateral foot onychomycosis is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left hand strain is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left hip strain with limited adduction, abduction, internal rotation and external rotation is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left hip strain with limited extension is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left hip strain with limited flexion is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left knee strain is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left knee strain with instability is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for left ventricular hypertrophy is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for right ankle strain is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for right hand strain is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for right hip strain with limited extension is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for right hip strain with limited flexion is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for right knee strain is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for status post pleurisy is granted. Entitlement to an effective date of December 1, 2009 for the grant of entitlement to service connection for unspecified depressive disorder is granted. Entitlement to service connection for positional obstructive sleep apnea is granted. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. A January 2010 rating decision denied entitlement to service connection for 12 issues, which were later granted in a December 2013 rating decision (as 16 issues). The Veteran was notified of the January 2010 rating decision in a January 2010 notification letter. 2. In December 2012, the Veteran wrote to his congressman that he filed an appeal of his claims in June 2010 and had not yet heard from VA. This correspondence was taken by the RO as claims to reopen and a claim of clear and unmistakable error (CUE) in the January 2010 rating decision. 3. In February 2013, the RO contacted the Veteran’s representative who reported that in telephone conversations between April and August 2010 a “Notice of Disagreement was discussed, but no paperwork filed.” The Veteran has also submitted a copy of a March 2010 letter to his representative where he requested help with his “appeal.” 4. The Veteran credibly argues that he requested his representative file an appeal of his denials of service connection. He has shown good cause as to why he did not submit a timely notice of disagreement. 5. The Board will accept the December 2012 letter as a timely notice of disagreement with the denials of entitlement to service connection in the January 2010 rating decision. All claims for an earlier effective date for the grant of service connection for the various issues on appeal are provided from December 1, 2009, the date of the Veteran’s retirement from service. 6. The Veteran’s spouse is a registered nurse. She has credibly and competently described the onset of symptoms of sleep apnea during service, which was later diagnosed through a sleep study as positional obstructive sleep apnea. 7. The Veteran is currently service connected for depression, with a symptom of sleep disturbance, and obstructive sleep apnea. The record does not show an additional disorder resulting in sleep disturbance. CONCLUSIONS OF LAW 1. Good cause having been shown, the December 2012 notice of disagreement with the January 2010 rating decision may be accepted as timely. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.109 (b); 38 C.F.R. § 20.302 (a) (2018). 2. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 3. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for bilateral foot onychomycosis have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 4. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left hand strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 5. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left hip strain with limited adduction, abduction, internal rotation and external rotation have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 6. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left hip strain with limited extension have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 7. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left hip strain with limited flexion have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 8. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left knee strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 9. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left knee strain with instability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 10. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for left ventricular hypertrophy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 11. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for right ankle strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 12. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for right hand strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 13. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for right hip strain with limited extension have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 14. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for right hip strain with limited flexion have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 15. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for right knee strain have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 16. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for status post pleurisy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 17. The criteria for an effective date of December 1, 2009, for the grant of entitlement to service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 18. The criteria for service connection for positional obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 19. The criteria for service connection for a sleep disorder (other than sleep apnea) have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from January 1980 to January 1983, from December 1985 to December 1992, and from September 1995 to November 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2010 and December 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. History Initially, the Board notes that the issue regarding the timeliness of the NOD was not certified to the Board by the RO. The issue that was certified to the Board was one of whether clear and unmistakable error (CUE) was committed in the January 2010 rating decision. For reasons explained below, and to provide the Veteran the greater benefit, the Board has reconstrued the claim as one to accept an untimely NOD as the legal burden is more easily overcome. As shown below, this will result in the outcome the Veteran was seeking. The January 2010 rating decision addressed 20 issues, granting entitlement to service connection for a cervical spine disorder, a left ankle fracture, and hypertension, and denying service connection for another 17 issues. The December 2013 rating decision addressed 26 issues, including granting entitlement to service connection for 16 issues that were initially denied in the January 2010 rating decision, and providing an effective date of December 26, 2012. The RO provided the December 26, 2012 effective date based upon a congressional inquiry. The Veteran is seeking an effective date of December 1, 2009. The December 26, 2012 congressional inquiry included a letter the Veteran sent his congressman on December 14, 2012 where he stated that he had a claim pending before VA from June 2010, that he had submitted through his representative (DAV). The Veteran wondered why he had not heard from VA for two years, and was arguing that he should not have been denied service connection for a number of issues due to missing VA examinations because he had contacted VA and explained that he was not going to be in Missouri at the time of his scheduled examinations. The RO considered this letter a claim to reopen his service connection claims, and a claim of clear and unmistakable error (CUE) with the January 2010 rating decision. In November 2013, the Veteran submitted a statement that he had never attempted to claim CUE in the January 2010 rating decision, but that he was seeking “reconsideration” and wanted his claims to be considered from his initial claim. The claim of CUE with the January 2010 rating decision, however, was continued and was addressed in the RO’s statement of the case, and appealed to the Board. To provide the greatest benefit to the Veteran, the Board is going to address the claim as one to accept the December 2012 statement as a notice of disagreement (NOD). The issue of addressing the December 2012 statement as an untimely notice of disagreement (NOD) had not been addressed by the RO, and is the Board’s interpretation of what the Veteran was seeking from VA. The Veteran has argued he instructed his representative (DAV) to submit a notice of disagreement with the January 2010 rating decision. The record contains a phone call between a VA employee and the Veteran’s DAV representative that they had “discussed” submitting a NOD, but that no paperwork was filled out, and a letter from the Veteran dated March 2010 where he asked his representative to help him with his “appeal.” As the Board’s interpretation of the Veteran’s claim as one for acceptance of an untimely NOD provides the benefit he is seeking (entitlement to an effective date of December 1, 2009 for all service connected conditions), the Veteran is not prejudiced by this change in claim format. Although the SOC did not address this issue, the Veteran discussed the factors of his attempts to submit an appeal throughout his claim process, including on his VA Form 9/substantive appeal. Therefore, the Board finds that it has jurisdiction over the claim. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waives any objection to the timeliness of a substantive appeal by taking actions that would lead an appellant to believe that the appeal was perfected). The Veteran’s May 2016 substantive appeal dropped the issues of entitlement to service connection for a deviated septum and entitlement to a compensable rating for sinusitis. Effective Date In September 2009, prior to retirement, the Veteran filed claims of entitlement to service connection for 21 issues. In October 2009, the Veteran was scheduled for VA examinations in Missouri; however, he was working in New Jersey at the time. Email correspondence in January 2010, between VA employees, showed that the Veteran was unable to attend two scheduled VA examination dates as he was working in New Jersey and would not be able to attend examinations in Missouri. It was requested that he be scheduled for examinations in New Jersey (or, if past a certain date, in Maryland). Another January 2010 record, signed only with initials, noted that because the Veteran had not permanently moved to New Jersey, and his home address was still listed in Missouri (where his family was residing), that VA would not reschedule his examinations in another state. The note included that there were records of phone calls from the Veteran that he could not attend VA examinations in Missouri; however, this employee indicated that they were still considered as “no shows.” “No rescheduling of exams are warranted at this time,” and the claims would be decided based on the evidence of record. As noted above, a January 2010 rating decision addressed 20 issues, granting entitlement to service connection for a cervical spine disorder, a left ankle fracture, and hypertension based on service treatment records, and denying service connection for another 17 issues. Notice of this rating decision was mailed to the Veteran’s address in Missouri. A notice of disagreement with the January 2010 rating decision was not provided within one year of the notice provided January 25, 2010. Chronologically, the next document in the Veteran’s claims file is a December 26, 2012 congressional inquiry. As noted in the introduction, the congressional inquiry included a copy of a December 2012 statement from the Veteran asking for help in having his appeals addressed by the Board. He stated that he had claims pending before VA from June 2010, that he had submitted through his representative (DAV). He then provided his argument related to the rescheduling of examinations. In February 2013, a VA employee called the Veteran’s representative (DAV) to discuss the Veteran’s statement that he had submitted claims in June 2010. “There is no paperwork in the Vet’s eFolder from this timeframe.” The VA employee asked the representative if he had anything that could substantiate the Veteran’s claim. The DAV representative noted that “there were some phone calls made in April and August of 2010; however, neither conversation involved reopening his claim. A Notice of Disagreement was discussed, but no paperwork was filed.” He stated that the Veteran had received an “automated letter” from DAV in June 2010 because he had tried to contact DAV through their website, but that the letter would not have been related to reopening claims. In February 2014, the Veteran submitted a copy of the letter he sent to his DAV representative in March 2010. He again gave the history related to trying to have his examinations scheduled in the state where he was temporarily living and working, and the subsequent decision made without rescheduling the examinations. He requested help from his DAV representative with “mov[ing] forward on [his] claim.” On his May 2016 substantive appeal, the Veteran stated he felt he was entitled to the earlier effective date of December 1, 2009 for all of his service connected disabilities. He argued for the earlier effective date because “DAV did not file [his] appeal for all conditions within the first year.” He noted he had submitted multiple requests and forwarded the faxed letter he sent to DAV to appeal his claims on his behalf. He stated that his DAV representative “told [him] they had done so.” Appellate review of a rating decision by the RO is initiated by the filing of a timely notice of disagreement and completed by timely filing a substantive appeal after a statement of the case is furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200 (2011). A notice of disagreement must be in writing and filed by the Appellant or a representative within one year from the date of mailing of notice of the result of initial review or determination. 38 U.S.C. § 7105 (b)(1), (2); 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one-year time period, the RO rating decision becomes final. 38 U.S.C. § 7105 (c). A notice of disagreement is a written communication from a claimant or a representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (or RO) and a desire to contest the result. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as disagreement with the determination and a desire for appellate review. Effective March 24, 2015, VA amended 38 C.F.R. § 20.201 to require that all notices of disagreement be submitted via a standardized form (VA Form 21-0958). See 79 Fed. Reg. 57660 (Sept. 25, 2014). Fortunately, the statement being addressed as an NOD in this case was received in December 2012. The time limits within which a claimant is required to act to perfect a claim or challenge an adverse VA decision [notice of disagreement] may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. 38 C.F.R. § 3.109 (b). There is no legal entitlement to an extension of time, rather the decision is left to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). The Board has taken some liberties with choosing to address the Veteran’s claim as one for accepting his December 2012 statement as a notice of disagreement with the January 2010 rating decision, despite being untimely. However, it is equitable to the Veteran as the credible information in the record indicates that he requested his representative (DAV) file a NOD with the January 2010 rating decision in at least March 2010. A phone call with the representative noted that between April and August 2010 the Veteran “discussed” submitting an NOD with his representative. There is no reason the Board can imagine why the DAV did not file this NOD given the Veteran’s clear contention that he was entitled to the benefits, and his repeated attempts to have VA examinations conducted in the state where he was temporarily residing for work. As the Board finds that good cause has been shown as to why the Veteran did not submit a timely NOD (that he reasonably relied upon his representative to submit an NOD for him, as he requested), the Board will accept the December 2012 statement as an NOD for the January 2010 rating decision. As such, the Veteran’s initial appeal, from September 2009, would be considered as continuously on appeal through the December 2013 rating decision which granted entitlement to service connection for a number of issues. The December 2013 rating decision found the following were directly related to the Veteran’s approximately 30 years of service: left upper extremity radiculopathy, left ventricular hypertrophy, depressive disorder, bilateral hip strain, bilateral hand strain, bilateral knee strain, status post pleurisy, bilateral foot onychomycosis, and right ankle strain. 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 the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the grant of service connection for disability compensation is the “[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (b) (2) (i). The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that “the effective date of 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”). As the Board has found that the December 2012 statement may be considered a timely notice of disagreement with the January 2010 rating decision, the Veteran’s initial claim remained on appeal throughout the period. As the December 2013 rating decision provided service connection for the issues on appeal as directly related to service, and all disabilities granted service connection “arose” prior to his claim, the Board grants earlier effective dates of December 1, 2009 for all appealed earlier effective date issues. December 1, 2009 is the earliest possible effective date, as it is the day following separation from service. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for positional obstructive sleep apnea The Veteran contends that he is entitled to service connection for obstructive sleep apnea. In December 2013, the Veteran’s wife submitted a statement that she was a registered nurse, and first assistant working in surgery for a hospital in St. Louis, Missouri. She stated that her husband had “issues sleeping, and, [in her opinion], exhibits the traits of sleep apnea.” She stated that he had this issue for many years, to include during his time in the Army. At the time of his denial of service connection in December 2013, there was no evidence the Veteran had undergone a sleep study. The Veteran’s service treatment records include a September 2003 report of not sleeping well, and he was noted to have a deviated septum and questionable sleep apnea. In February 2014, the Veteran submitted a private January 2014 sleep study which diagnosed positional obstructive sleep apnea. The Veteran’s wife, as a nurse and someone who would witness his sleep, is competent and credible to provide a statement that the Veteran “exhibit[ed] the traits of sleep apnea” during service. Her opinion that he was demonstrating symptoms of sleep apnea were confirmed through a sleep study in January 2014. The Veteran complained of sleep disturbance in service and was noted to have questionable sleep apnea as early as 2003. The preponderance of the evidence supports a finding that entitlement to service connection for positional obstructive sleep apnea is warranted. 2. Entitlement to service connection for a sleep disorder The December 2013 rating decision denied entitlement to service connection for both sleep apnea and a “sleep disorder.” The Veteran’s NOD included that he was seeking service connection for “sleep apnea/sleep disorder.” The Veteran’s service treatment records include complaints related to difficulty sleeping beginning in April 1981. At that time, he reported frequent waking with occasional headache and a pain in his side that was worse with movement. He was assessed with sleep disturbance secondary to over work and muscle strain. He was given medication to take for a week to reestablish his sleep pattern, and to take asprin as needed for pain. In September 2003, he reported he was not sleeping well and he was having difficulty breathing due to a deviated septum and seasonal allergies. He was noted to have questionable sleep apnea. The Veteran is now service connected for sleep apnea, as of this decision. An April 2007 record noted that the Veteran’s diagnosed depression had “disordered sleeping” as a symptom. The December 2013 rating decision granted entitlement to service connection for unspecified depressive disorder and provided a 30 percent rating. During his December 2013 VA mental health examination, the Veteran reported sleep disturbance due both to pain and anxious worry related to his children and other interpersonal stressors. The examiner selected that the Veteran had a depressed mood, and considered within that was the symptom of sleep disturbance due to pain and occasional worry. The Board notes that the January 2014 private sleep study provided by the Veteran diagnosed obstructive sleep apnea, but found that the Veteran did not have restless leg syndrome or other sleep disorders. As the Veteran’s symptom of sleep disturbance is addressed by two service-connected disorders (sleep apnea and depression), and the record does not contain a diagnosis of a non-service connected disorder with a symptom of sleep disturbance, the Board finds that entitlement to service connection for an additional/separate sleep disorder is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel