Citation Nr: 20007307 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-39 785 DATE: January 28, 2020 ORDER Entitlement to an earlier effective date for service connection for sleep apnea is denied. REMANDED Entitlement to a compensable rating for bilateral pes planus is remanded. FINDING OF FACT The Veteran submitted a claim for service connection for sleep apnea on September 20, 2004. This claim was denied in a February 2005 rating decision. The Veteran did not disagree with this decision within one year or submit new evidence and the decision went final. The Veteran submitted a claim to reopen his sleep apnea claim on August 13, 2013. CONCLUSION OF LAW The criteria for an effective date prior to August 13, 2013, for the grant of service connection sleep apnea are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from April 1980 to January 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date earlier than August 13, 2013 for sleep apnea is denied. By way of background, the Veteran originally filed a claim for VA compensation in September 2004, which included, in-pertinent part, a claim for a deformed uvula and sleep apnea. The RO denied service connection for sleep apnea after determining that the medical evidence failed to show that sleep apnea had been clinically diagnosed. In the same rating decision, the RO also denied service connection for residuals of the Veteran’s cautery assisted palatal stiffening operation (CAPSO surgery), resulting in a deformed uvula. In December 2005, the Veteran disagreed with the RO’s February 2005 determination as to the residuals of his CAPSO surgery; however, the Veteran did not disagree with the February 2005 denial of service connection for sleep apnea. Following this, the RO issued a Statement of the Case (SOC) in December 2006, which addressed the Veteran’s disagreement with the denial of service connection for residuals of his CAPSO surgery. The Veteran did not take further action for residuals of his CAPSO surgery after receiving the SOC from the RO. Thus, the Veteran’s claims of entitlement to service connection for sleep apnea and entitlement to service connection for residuals of CAPSO surgery (claimed as a deformed uvula) became final. Thereafter, the Veteran filed a claim for VA compensation for sleep apnea in August 2013, after he was diagnosed with severe obstructive sleep apnea in May 2012. Ultimately, the Veterans claim to reopen the previously denied claim of entitlement to service connection sleep apnea was granted in a July 2014 rating decision, at which time the RO granted service connection for sleep apnea effective August 13, 2013. The Veteran has not claimed, and the record does not reflect, that the Veteran filed a claim to reopen the previously denied claim of entitlement to service connection for sleep apnea prior to August 13, 2013. Instead, the Veteran asserted that that his sleep apnea claim had never actually been denied, based on the contents of his February 2006 SOC. Additionally, the Veteran asserted that the United States Army committed an error by failing to diagnose him with sleep apnea in service. With regards to the first assertion, the Board notes that the February 2005 rating decision did become final. In that regard, the February 2005 rating decision lists sleep apnea as the eleventh condition it adjudicated, finding that entitlement service connection for sleep apnea is denied. The Veteran chose to appeal multiple conditions in his December 2005 Notice of Disagreement, listed those condition by number but omitted sleep apnea. As the Veteran did not submit a NOD for the issue of sleep apnea, the RO was not required to address sleep apnea in the February 2006 SOC. Thus, the February 2005 rating decision indeed became final as the Veteran did not submit a notice of disagreement with this decision within one year of receiving the February 2005 rating decision. Additionally, as noted above, the Veteran did not submit a substantive appeal to the December 2006 SOC for his entitlement to service connection for residuals of CAPSO surgery (claimed as deformed uvula) claim. The Veteran’s second assertion is that the United States Army committed an error by failing to diagnose him with sleep apnea wile in service. Although 38 U.S.C. § 5109A permits the VA to revise an effective date based on a clear and unmistakable error made during the adjudication of a claim, the Veteran has not claimed that an error occurred during the adjudication of his claim. Indeed, he has instead asserted that he clearly exhibited symptoms of sleep apnea, as documented by his July 2002 in-service medical records and CAPSO surgery to alleviate his symptoms, yet the United States Army failed to accurately diagnose him with sleep apnea. Essentially, the Veteran has contended that his symptoms of sleep apnea should have been clear and unmistakable evidence that he had the condition, with which his symptoms were associated. Here, the Veteran has not argued that the correct facts were not before the adjudicator. Additionally, the Veteran has not argued that the adjudication of his claim applied the statutes or regulatory provisions incorrectly. Moreover, the error the Veteran alleges is not an undebatable error, but instead is an indictment of the quality of the medical judgment of the Veteran’s treatment providers, while he was in the United States Army. For these reasons, the Veteran’s claim that an error was committed by the United States Army in failing to diagnose sleep apnea is insufficient to provide an earlier effective date, as a matter of law. As the Veteran’s current effective date of service connection for sleep apnea is August 13, 2013, the Board finds that there is not a sufficient basis upon which to find entitlement to an effective date of service connection for sleep apnea prior to that date. Accordingly, the Board finds that the claim of entitlement to an earlier effective date for the grant of service connection for sleep apnea must be denied because it is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to a compensable rating for bilateral pes planus is remanded. In his October 2019 Informal Hearing Presentation, the Veteran’s representative asserted the Veteran’s belief that his bilateral pes planus condition has worsened. The Veteran was last examined for foot conditions in October 2015. As the Veteran has alleged a worsening in his condition, an open medical question exists as to the current severity of the Veteran’s condition and a remand is therefore necessary to determine the current severity of the Veteran’s bilateral pes planus. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the Veteran’s claims file. 2. Schedule the Veteran for an appropriate examination to assess the current severity of the Veteran’s bilateral pes planus. The claims file should be provided to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his foot symptomatology since service. The VA examiner should conduct range of motion testing, and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-ups, and note the frequency and duration of any such flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion beyond what is shown clinically. The examiner should identify all symptomatology associated with the Veteran’s bilateral pes planus. The examiner should opine as to the severity of the level of impairment of that disability. (Continued on the next page)   All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Irvin Cannaday Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.