Citation Nr: A19001582 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 190429-7584 DATE: September 26, 2019 ORDER Entitlement to an earlier effective date of May 9, 2017 is granted for the award of service connection for obstructive sleep apnea (OSA). FINDING OF FACT There Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for OSA on May 9, 2017. CONCLUSION OF LAW The criteria for an effective date of May 9, 2017, for the award of service connection for OSA have been met. 38 U.S.C. §§ 5107, 5110, 5121; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2019 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran submitted his notice of disagreement and selected the Direct Review lane. As such, the Board will consider only the evidence submitted prior to the April 2019 RO decision. Entitlement to an effective date prior to October 25, 2018, for the award of service connection for OSA The Veteran contends that he should be granted an earlier effective date for the award of service connection for OSA. He claims that a sleep study from January 2011 documented OSA and this evidence was before VA when his claim was denied in March 2011. He contends that the Regional Office finally granted his claim in April 2019 using the January 2011 sleep study and, therefore, an earlier effective date is warranted. In general, the effective date of an evaluation and award of 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 later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations apply only to claims filed on or after March 24, 2015. The Veteran originally filed a claim for OSA in November 2006. In a March 2007 decision, the RO denied the claim on the basis that the disability had not been clinically diagnosed. The Veteran was notified of this decision and of his appeal rights in an April 2007 letter but did not perfect a timely appeal. Moreover, no new and material evidence pertaining to the Veteran’s claim was associated with the claims file within one year of the RO’s decision. As a result, the decision became final. In November 2010, the Veteran requested to reopen his claim for OSA, which the RO denied in a March 2011 rating decision. The Veteran was notified of this decision and of his appeal rights in a March 2011 letter but did not perfect a timely appeal. Instead, the Veteran requested that the RO reconsider his claim. The claim was subsequently reopened and denied on the merits in an August 2013 rating decision. The Veteran filed a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in March 2016. However, the Veteran did not perfect his appeal by filing a timely VA Form-9. Therefore, the August 2013 rating decision became final. The Veteran most recently filed a claim for OSA on May 9, 2017, which the RO granted in an April 2019. An effective date of October 25, 2018 was assigned based on the date the RO received the claim. However, as noted immediately above, the Veteran filed his claim to reopen in May 2017. The Board has thoroughly reviewed the evidence of record to determine if the Veteran filed an earlier unadjudicated claim for OSA prior to May 2017. However, there were no documents associated with the claims file following the March 2016 Statement of the Case and the May 2017 claim for sleep apnea. The Board acknowledges the Veteran’s contention that he started his OSA claim in 2006. However, even if entitlement arose prior to the May 2017, the claim is the later of the two dates specified by law. As noted above, the prior decisions are final, and the Veteran has not alleged that a rating decision contains clear and unmistakable error. Accordingly, the Board concludes that May 9, 2017, is the proper effective date for the award of service connection for OSA. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.