Citation Nr: 20022490 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 19-34 465 DATE: April 1, 2020 ORDER Entitlement to an effective date earlier than August 25, 2010 for the grant of service connection for sleep apnea is denied. Entitlement to an effective date earlier than August 25, 2010 for the grant of service connection for right-hand tremors is denied. FINDINGS OF FACT 1. On April 19, 2005, the Veteran filed claims seeking service connection for sleep apnea and right-hand tremors. In a December 2005 rating decision, the claims were denied. 2. Regarding the service connection denial for right-hand tremors, the Veteran did not file a notice of disagreement or submit new and material evidence related to the claim within a year of the December 2005 rating decision. Accordingly, that decision (related to the service connection claim for right-hand tremors) became final. 3. On July 31, 2006, the Veteran filed a claim to reopen his service connection claim for sleep apnea. As the claim was filed within a year of the prior December 2005 rating decision, the claim was considered continuous from his original April 2005 claim. The claim was denied in a January 2007 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence related to the claim within a year of the January 2007 rating decision. Accordingly, that decision became final. 4. The Veteran’s request to reopen the claims for service connection for sleep apnea and right-hand tremors was received by the RO on August 25, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 25, 2010 for the grant of service connection for sleep apnea are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than August 25, 2010 for the grant of service connection for right-hand tremors are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1970 to August 1990. The issues are on appeal from a September 2018 rating decision. Earlier Effective Date Entitlement to an effective date earlier than August 25, 2010 for the grants of service connection for sleep apnea and service connection for right-hand tremors is denied. The Veteran contends that he is entitled to an effective date of April 19, 2005, the date of his original claims for service connection for sleep apnea and right-hand tremors. Except as otherwise provided, 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; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). In the context of a claim of service connection, the date of entitlement hinges on when the service-connected disability first manifested itself under all facts found. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The Veteran seeks an effective date prior to August 25, 2010, the date on which VA received his petition to reopen the claims for service connection for sleep apnea and right-hand tremors based on new and material evidence. Thus, given the nature of the earlier effective date rules, the threshold question in this matter is whether an earlier date of claim may be applied to the Veteran’s appeal. Absent that, there would be simply no basis for awarding an earlier effective date. To review the procedural history, the Veteran originally filed a claim for service connection for sleep apnea and right-hand tremors in April 2005, as stated above. The claim was denied in a December 2005 rating decision and he was notified in the same month. In pertinent part, the Veteran did not appeal the denial of service connection for right-hand tremors and no new evidence was received within a year. Accordingly, the December 2005 rating decision denial for the claim of service connection for right hand tremors is final. Regarding the denial of service connection for sleep apnea, the Veteran filed a request to reopen the service connection claim in July 2006. In an October 2006 notification letter, the RO stated that as the Veteran had filed within a year of the December 2005 rating decision notification letter, his claim for service connection was considered to have remained continuously open since his original claim date of April 2005. Ultimately, the RO denied service connection in January 2007 and he was notified of the decision in February 2007. The Veteran did not appeal that decision and no new evidence was received within a year. Accordingly, the January 2007 rating decision became final. The Veteran submitted a request to reopen his service connection claims for sleep apnea and right-hand tremors in August 2010. In a November 2010 rating decision, the RO declined to reopen the claims as no new and material evidence was submitted. In August 2018, the Board of Veterans’ Appeals (Board) granted reopening his service connection claims after finding new and material evidence had been submitted, and also granted service connection for both claims. In a September 2018 rating decision, the RO assigned a 50 percent rating for sleep apnea and 30 percent rating for right hand tremors, both effective on August 25, 2010 (date of claim to reopen service connection). To review, under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). An effective date earlier than August 25, 2010 is not warranted because this was the first date that VA received written communication from the Veteran seeking to reopen his previously denied claims for service connection for sleep apnea and right-hand tremors. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). When a claim is reopened, the effective date assigned cannot be earlier than the reopened claim’s application date. 38 C.F.R. § 3.400 (q); Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008), citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir. 2005). Considering the procedural history, the only other way an earlier date of claim would apply to this appeal is to toll or otherwise set aside the finality of the December 2005 and/or January 2007 denials of service connection. There are three ways the finality of the prior decision might be tolled. First, if the Veteran had timely filed an appeal of the decision but an SOC was not issued, the matter would remain pending from the original denial. Shipley v. Shinseki, 24 Vet. App. 458, 461 (2011); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). Unfortunately, as noted above, the Veteran did not file a timely appeal of the December 2005 denial of service connection for right hand tremors or the January 2007 denial of service connection for sleep apnea. Thus, this first scenario does not apply. Again, the Board notes that the Veteran did not file his petition to reopen his claims until August 2010. Second, 38 C.F.R. § 3.156 (b) provides that, where new and material evidence is received before an appeal period has expired, a rating decision does not become final and any “subsequent decision based on such evidence relates back to the original claim.” See also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010) (holding that, if new and material evidence had been submitted but had not been acted upon, the Veteran’s claim could still be pending until a decision had been made on that evidence); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Here, the Veteran did not submit new evidence during the one-year appellate period following the December 2005 or January 2007 denials. There was no evidence received following the December 2005 denial in regard to the Veteran’s claim for service connection for right-hand tremors, and no evidence received following the January 2007 denial in regard to the Veteran’s claim for service connection for sleep apnea. Therefore, there is no basis for tolling the finality of the December 2005 or January 2007 denials under 38 C.F.R. § 3.156 (b). Finally, 38 C.F.R. § 3.156 (c) provides that VA must reconsider a previously decided claim if, at any time after VA issues a prior decision on that claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when first deciding the claim. In order to trigger such reconsideration, the record(s) in question must have existed at the time VA first decided the claim. Unfortunately, while service treatment records were subsequently associated with the file, such were previously reviewed and considered in the Veteran’s prior rating decisions. Therefore, there is also no basis for reconsidering the prior denials de novo under 38 C.F.R. § 3.156 (c). Absent any way to toll the finality of the prior denials, the only means of showing an earlier date of claim applies to the Veteran’s appeal is to set aside their finality altogether by showing that CUE was committed in the decision itself. Allegations of CUE must be plead with some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons as to why the result would have been manifestly different but for the alleged error. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000); Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). There have been no allegations of CUE in this case. Consequently, the Board can find no basis for tolling or setting aside the finality of the prior December 2005 and/or January 2007 denials at this time. Therefore, the only date of claim that may be considered in this appeal at present is August 25, 2010-the date VA received his petition to reopen the claim for service connection for right-hand tremors and sleep apnea. Thus, the current effective date is the earliest possible effective date. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim, and the appeal in this matter must be denied. Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.