Citation Nr: 1807937 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 12-02 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to an effective date earlier than January 22, 2007 for the grant of service connection for obstructive sleep apnea (OSA). 2. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound, for accrued benefits purposes. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 through August 1980, June 1981 through June 1983, and March 1988 through August 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The December 2009 rating decision in pertinent part granted service connection for OSA, effective July 31, 2008, with a 50 percent initial disability rating. Although the Veteran does not contest the assigned initial disability rating, he has perfected a timely appeal in which he challenges the effective date. The August 2015 rating decision denied entitlement to special monthly compensation based on aid and attendance. During the ensuing claims development, the RO issued a December 2011 rating decision in which it granted the earlier effective date of January 22, 2007 for service connection for OSA. Despite the same, the Veteran maintains his appeal. Testimony pertaining to the Veteran's claim for an earlier effective date was received from the Veteran during a December 2013 video conference hearing. A transcript of this testimony is associated with the claims file. While the Veteran initially requested a hearing before the Board on his claim for special monthly compensation, in August 2017, he withdrew his pending hearing request and asked that his case be forwarded to the Board for a decision. The issue of whether there was clear and unmistakable error in a January 15, 1999 rating decision denying service connection for sleep apnea was raised by the Veteran during his December 2013 hearing. In July 2017, the AOJ issued a rating decision finding that was no clear and unmistakable error in the prior decision. The record does not contain a notice of disagreement with this action. FINDINGS OF FACT 1. The Veteran's September 16, 1998 claim of service connection for OSA was denied in January 15, 1999 rating decision. 2. The Veteran did not submit a notice of disagreement within one year of the January 15, 1999 rating decision and new and material evidence was not received during the appeal period. 3. In unappealed rating decisions in January 2004, September 2004, and July 2005, the AOJ found that new and material evidence had not been submitted to reopen the claim 4. The Veteran's next communication received from the Veteran following the July 2005 decision expressing a desire to reopen the claim for service connection for OSA was received by the RO on January 22, 2007. 5. The Veteran does not require the care or assistance of another on a regular basis as a result of service connected disabilities and his service connected disabilities do not render him housebound CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied reopening of the claim of entitlement to service connection for OSA is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.105 (a), 3.156(b), 20.200 (2017). 2. The criteria for an effective date prior to January 22, 2007 for service connection for OSA have not been met. 38 U.S.C.A. § 310 (West 1982); 38 C.F.R. § 3.303 (1986); 38 U.S.C.A. §§ 7105 (c) (West 2014); 38 C.F.R. §§ 3.105 (a), 3.155(b), 3.400(q)(1)(ii) (2017). 3. The criteria for special monthly compensation benefits based on the need for aid and attendance and housebound status, for accrued benefits purposes, have not been met. 38 U.S.C.A. §§ 1114, 1502, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans' Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Veteran's current appeal is based on his disagreement with the effective date assigned following the grant of service connection for OSA. In this regard, once service connection is granted, a claim is substantiated and additional VCAA notice is not required, and as such, any defect in the notice is considered nonprejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Veteran did receive adequate VCAA notice in March 2005 and August 2007 as to the underlying claim for service connection for OSA. In September 2015, VA issued the Veteran VCAA notice which informed of the evidence generally needed to support a claim for special monthly compensation benefits to include aid and attendance and housebound benefits, what actions he needed to undertake, and how VA would assist in developing the claim. Although the VCAA notice was issued to the Veteran after to the August 2015 rating decision denying benefits, the issue was readjuducated and once again denied in a February 2016 rating decisiontherefore, there was no defect with respect to timing of the VCAA notice as to this issue. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was afforded VA aid and attendance and housebound examinations in March 2015 and February 2016. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the February 2016 examination report reflects that all relevant questions were answered, the VA examiner relied upon an accurate history and complaints of disability obtained from the Veteran, and housebound status is a rating issue based on current assessment of specific functional impairments. See VAOPGCPREC 20-95 (stating that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the claims file is a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion, it is not a magical or talismanic set of documents). He presented testimony at a hearing in December 2013. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran would be capable of substantiating this claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Date The Veteran contends that he is entitled to an effective date prior to January 22, 2007 for service connection for obstructive sleep apnea. He asserted that the January 15, 1999 rating decision that initially denied service connection for obstructive sleep apnea contains CUE, and that therefore the effective date of service connection should be the September 17, 1998 date of his original claim. The Veteran states that the January 1999 rating decision overlooked a January 1999 diagnosis of OSA, which established his service connection claim. With respect to the Veteran's contentions that there was CUE in the 1999 rating decision, the Board observes that CUE was addressed in an appealed July 2017 rating decision. As the Veteran has not perfected an appeal of this issue, the Board does not have jurisdiction over it at this time. In general, 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 C.F.R. § 3.400. In a rating decision dated January 15, 1999, the claim for entitlement to OSA was denied. The decision noted that the Veteran's January 1995 STRs showed questionable sleep apnea. He presented with a history of septoplasty for nasal obstruction without help in May 1983 and complained of nasal obstruction and nocturnal obstruction, snoring. A sleep study revealed normal findings, and spirometry findings were within normal limits. STRs were negative for a diagnosis of sleep apnea. The January 1999 rating decision also cited that the Veteran had recently been provided a VA examination. During the examination the Veteran gave a history of being diagnosed with sleep apnea in service. He reported that he had not been feeling as tired as he used to be. The Veteran's claim was denied on the basis that the Veteran did not receive in service treatment for obstructive sleep apnea and therefore the evidence did not support that the claimed condition was incurred in or aggravated by military service. . Furthermore, no new and material evidence was received prior to the expiration of the one year appeal period on January 15, 2000. Therefore, the January 15, 1999 rating decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105 (a), 3.156(b), 20.200. Following the January 1999 denial, the Veteran filed several claims to reopen the previously disallowed claim. In unappealed rating decisions in January 2004, September 2004, and July 2005, the AOJ found that new and material evidence had not been submitted to reopen the claim. As the Veteran did not perfect an appeal of these decisions, they are final. Once a rating decision is final, they may not be revised except on the basis of clear and unmistakable error. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 3.105 (a). As noted above, the AOJ addressed the issue of CUE in the July 2017 rating decision. The next communication received from the Veteran in relation to his obstructive sleep apnea claim was not until January 22, 2007, when he submitted a request to reopen the claim for service connection. The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (q)(1)(ii). Accordingly, the Board must find that the earliest possible effective date for the award of service connection for the Veteran's OSA is January 22, 2007. This is the date on which his request to reopen his previously denied claim was received. The United States Court of Appeals for Veterans Claims (Court) has held that the effective date of the grant of service connection based on a reopened claim cannot be the date of receipt of the claim that was previously and finally denied. Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA"). The Board also notes that a claim that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. "The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application." Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). The evidence indicates that the Veteran was entitled to service connection for OSA on the date that he submitted his new claim on January 22, 2007. Therefore, the current effective date of January 22, 2007 for service connection for OSA is correct, and entitlement to an earlier effective date is not established. 38 C.F.R. § 3.400 (q)(1)(ii). Special Monthly Compensation Based Upon Aid and Attendance Compensation at the aid and attendance rate is payable when a Veteran's service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: The inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance. The inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352 (a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. at 224. The evidence must show that the claimant is so helpless as to need regular aid and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352 (a). The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350. The Veteran is currently service connected and in receipt of a 100 percent disability rating for chronic renal disease, 50 percent disability rating for OSA, 10 percent disability rating for patellofemoral pain syndrome of the right knee with arthritis, 10 percent disability rating for patellofemoral pain syndrome of the left knee with arthritis, 10 percent disability rating for hallux valgus of the left great toe, 10 percent disability rating for tinnitus, 10 percent disability rating for allergic rhinitis, 10 percent disability rating for sinus bradycardia, 10 percent disability rating for irritable bowel syndrome and noncompensable disability ratings for hallux valgus of the right great toe, bilateral hearing loss, hemorrhoids and migraines. The Veteran submitted his claim for aid and attendance in March 2015. In a March 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance it was noted that the Veteran was able to feed himself and prepare his own meals. He did not need assistance in bathing and tending to other hygiene needs nor was he legally blind. The Veteran appeared well nourished, but had a dialysis stent in his left arm. There were no restrictions on his lower extremities or spine, trunk and neck. The examiner noted that the Veteran was able to leave his home on a daily basis with some exceptions while on dialysis. The Veteran underwent a second VA examination in February 2016. It was found that the Veteran was not permanently bedridden or currently hospitalized. He was able to travel beyond his domicile. The examiner noted that the Veteran attended dialysis three days per week. On other days the Veteran mostly stayed home, but occasionally went out to eat/movies/etc. with his wife. He also attended church services on a regular basis and most of his activities were centered around church. The Veteran also reported that he occasionally walks as advised by his physician. The examiner further found that there was no memory loss, imbalance did not affect his ability to ambulate, there were no other body parts or system impairments that affected the ability of the Veteran to protect himself from the daily environment and he was able to perform all self-care functions. It was found that the Veteran could walk up to a half mile without assistance of another person, he did not need aid for ambulation, there were no restrictions on his ability to leave the home, no permanent functional impairments, his best corrected vision was better than 5/200 in both eyes, there was no limitation on motion or deformity in the cervical or thoracolumbar spine and there was normal function in the upper and lower extremities. His mental competency was described as functionally independent, interactive and insightful/appropriate in his responses to the examiner's questions. During the February 2016 VA examination and in a March 2016 Notice of Disagreement, the Veteran cited his desire to have in-home dialysis as the reason he was seeking aid and attendance. He also claimed in his March 2016 Notice of Disagreement that his dialysis center was substandard and that he feared for his life at his treatments. After a review of all the evidence of record, the Board finds that, while the Veteran attends dialysis three times per week, he is able to self-care and leaves his home without restriction. The evidence discussed above does not suggest that the Veteran has any cognitive limitations or difficulties ambulating. For these reasons, the preponderance of the evidence is against a finding that the Veteran is entitled to special monthly compensation to include aid and attendance or housebound benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and special monthly compensation for aid and attendance or being housebound must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date prior to January 22, 2007 for service connection for obstructive sleep is denied. Special monthly compensation for aid and attendance or housebound status, for accrued benefits purposes, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs