Citation Nr: 20003045 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-09 547 DATE: January 14, 2020 ORDER Entitlement to an earlier effective date of June 1, 2014 for the award of service connection for sleep apnea is granted. FINDINGS OF FACT 1. A September 2014 rating decision denied service connection for a chronic sleep disorder. 2. A statement filed in February 2015 clearly and unambiguously expressed disagreement with the September 2014 rating decision. 3. Evidence of a diagnosis of obstructive sleep apnea was received in the course of the appeal. CONCLUSIONS OF LAW The criteria for an earlier effective date of June 1, 2014 for the award of service connection for sleep apnea are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the Army from May 1984 to May 2014. The appeal originates from an August 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded the issue of service connection for residuals of a right rib injury. That issue will be addressed at a later date. Entitlement to an effective date earlier than March 31, 2017 for the award of service connection for sleep apnea. The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(1); 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ as a NOD only if it is submitted on a standard form, in cases where such a form is provided. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 19.23, 19.24, 20.201(a)). For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, a NOD consists of a completed and timely submitted copy of that form. VA will not accept as a NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. 38 C.F.R. § 20.201 (a). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result will constitute a NOD. The NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (b). The Veteran contends that he is entitled to an earlier effective date for the award of service connection for sleep apnea based on his submission of a service connection claim for a sleep disorder in December 2013. Specifically, he submitted a pre-discharge compensation claim for “inability to sleep through the night.” He underwent a VA examination in January 2014 at which time he complained of problems getting to sleep and staying asleep. He reported taking melatonin and noticing a gradual improvement in his symptoms. He was diagnosed with mild improving sleep disturbance. In September 2014, the RO denied service connection for a sleep disorder due to the absence of evidence of a current disability. The Veteran filed a statement in February 2015 expressing his disagreement with the September 2014 decision. Specific reference was made to his sleep disorder claim. As the Veteran’s NOD was received prior to the regulatory change, his written NOD met the requirements of Rule 201. The NOD was also timely. Indeed, in a letter dated June 29, 2015, the AOJ acknowledged its receipt of the NOD. The Veteran underwent a PTSD examination in July 2016 at which time the examiner attributed sleep disturbance to PTSD. Notably, the Veteran submitted medical evidence in August 2016 showing a diagnosis of moderate obstructive sleep apnea. The AOJ eventually granted service connection for “[PTSD] (claimed as inability to sleep through the night)” in a March 2017 decision. An informal claim for service connection for sleep apnea was filed in March 2017. In June 2017, the Veteran submitted a formal claim for service connection for an inability to sleep - sleep apnea. An August 2017 rating decision granted service connection for sleep apnea. An effective date of March 31, 2017 The Board finds that an earlier effective date of June 1, 2014, the day following the Veteran’s discharge from active service, is warranted for service connection for sleep apnea. His filing of an NOD in February 2015 prevented the September 2014 decision from becoming final. Though it is true that he did not formally claim sleep apnea prior to June 2017, the cover sheet for the medical evidence submitted in August 2016 states that the diagnosis of obstructive sleep apnea was being provided for his pending claim. The December 2013 claim for a sleep disorder reasonably encompassed sleep apnea and therefore the aforementioned medical evidence should have been considered when the claim was addressed in the March 2017 decision. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals M. Alhinnawi, Attorney for the Board Department of Veterans Affairs 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.