Citation Nr: 20037047 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 15-44 720 DATE: June 1, 2020 ORDER The claim of entitlement to a disability rating in excess of 50 percent for sleep apnea has been withdrawn. The claim of entitlement to an earlier effective date for the grant of service connection for hypertension is denied. The claim of entitlement to an earlier effective date for the grant of service connection for sleep apnea is denied. The claim of entitlement to service connection for a sleep disorder is reopened. The appeal is granted to that extent only. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for epistaxis is remanded. FINDINGS OF FACT 1. On February 20, 2019, prior to a decision on the appeal, the Veteran notified the Board that he requested a withdrawal of his appeal for entitlement to a disability rating in excess of 50 percent for sleep apnea. 2. The effective date for the grant of service connection for hypertension is based on the date of receipt of the reopened claim on December 19, 2006; there was no communication indicating an intent to file a claim for hypertension which was received prior to December 19, 2006 but subsequent to the December 1996 rating decision which originally denied the claim. 3. The effective date for the grant of service connection for sleep apnea is based on the date of receipt of the reopened claim received by VA on May 1, 2006; there was no communication indicating an intent to file a claim for sleep apnea received prior to December 19, 2006 but subsequent to the December 1996 rating decision which originally denied the claim indicating an intent to claim service connection. 4. A December 1996 rating decision denied the claim of entitlement to service connection for a sleep disorder. The Veteran did not appeal the determination and the December 1996 rating decision became final. 5. Additional evidence has since been received which is not cumulative or redundant of the evidence of record at the time of the December 1996 rating decision and relates to an unestablished fact necessary to prove the claim of entitlement to service connection for a sleep disorder. 6. The preponderance of the evidence of record is against finding that the Veteran has had a sleep disorder separate from his service-connected obstructive sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria have been met for a withdrawal of the appeal by the Veteran for the claim of entitlement to a disability rating in excess of 50 percent for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for an earlier effective date for the grant of service connection for hypertension have not been met. 38 U.S.C. § §§ 5101, 5110; 38 C.F.R. § §§ 3.151, 3.155, 3.400. 3. The criteria for an earlier effective date for the grant of service connection for sleep apnea have not been met. 38 U.S.C. § §§ 5101, 5110; 38 C.F.R. § §§ 3.151, 3.155, 3.400. 4. The December 1996 rating decision denying service connection for hypertension and a sleep disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 5. New and material evidence has been received since the December 1996 rating decision to reopen the claim of entitlement to service connection for a sleep disorder, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to October 1979, from July to September 1982, and from January 1984 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2019, the undersigned Veterans Law Judge held a hearing and a transcript is in the record.   Withdrawal The claim of entitlement to a disability rating in excess of 50 percent for sleep apnea is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. § 20.205. In the present case, the Veteran withdrew this appeal at his February 2019 hearing. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal. The claim is dismissed. Effective Date Entitlement to earlier effective dates for the grants of service connection for hypertension and sleep apnea is dismissed. The Veteran contends that he is entitled to an earlier effective date for his grants of service connection for hypertension and sleep apnea. For the following reasons, the Board finds that earlier effective dates are not warranted. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service. Otherwise, it is the date the pertinent claim is received, or the day entitlement arose, whichever is later. 38 U.S.C. § § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).   In addition, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Review of the record establishes that the Veteran’s original claims from June 1996 were adjudicated and the decision is final. In June 1996, the Veteran filed a disability compensation claim to include entitlement to service connection for hypertension and insomnia. In a December 1996 rating decision, the RO denied service connection for hypertension and a sleep disorder. The Veteran was notified of the decision via correspondence dated the same month. In a January 2012 rating decision, the RO reopened and granted service connection for sleep apnea and assigned a 50 percent disability rating, effective May 1, 2006, the date he filed a new claim. In an April 2012 rating decision, the RO reopened and granted service connection for hypertension and assigned a non-compensable disability rating, effective December 19, 2006, the date he filed a new claim. There is no evidence indicating that the Veteran submitted a claim of entitlement to service connection for hypertension subsequent to the December 1996 rating decision but prior to December 2006. There is no evidence indicating that the Veteran submitted a claim of entitlement to service connection for a sleep disorder subsequent to the December 1996 rating decision but prior to May 2006. At his February 2019 hearing, the Veteran contended that he was entitled to earlier effective dates before 2006 for both his service-connected hypertension and sleep apnea because VA should have expanded his June 1996 claim for insomnia to include his claims for entitlement to service connection for hypertension, a sleep disorder (see below), and sleep apnea. However, service connection was not granted in 1996 for any of these conditions and the Veteran did not appeal the denial within one year, so the December 1996 rating decision became final. After a final disallowance, the earliest effective date is the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). In this case, the dates of the new claims are later than the date for service connection.   At his hearing the Veteran also contended that he was entitled to earlier effective dates for hypertension and sleep apnea because these disabilities were “part-and-parcel” to his alleged sleep disorder, a finding that would entitle him to an effective date prior to 2006. However, for the reasons below, the Board is denying service connection for such a sleep disorder and with it any related contentions for earlier effective dates for hypertension or sleep apnea based on the disorder must also fail. At his February 2019 hearing, the Veteran denied that he was alleging clear and unmistakable error in the December 1996 rating decision. The appropriate effective date for the claim of entitlement to service connection for hypertension is December 19, 2006, and the appropriate effective date for the claim of entitlement to service connection for sleep apnea is May 1, 2006, the dates of receipt of the new claims. The claims are denied. New and Material Evidence There is new and material evidence to reopen entitlement to service connection for a sleep disorder, and the claim is reopened. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is “new” if it was not previously submitted to agency decisionmakers. Evidence is “material” if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. “New and material evidence” can be neither cumulative nor redundant of the prior final decision’s evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).   The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency’s duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The December 1996 rating decision denied the Veteran’s claim for service connection for insomnia because the evidence did not establish a current disability. At the time of that decision, the evidence of record included the Veteran’s military personnel and service treatment records from May 1972 to May 1996 and a September 1996 VA examination report. The evidence received since the December 1996 rating decision includes evidence related to establishing a nexus between the Veteran’s service and a current sleep disorder to include insomnia. This evidence included September 1997 through November 2019 private and VA treatment notes and examination reports, December 2006 and January 2007 third-party statements, his July 2011 and February 2019 hearing testimony, and his lay statements from throughout the period at issue. At the hearing, the Veteran provided additional details about his sleep disorder from during and after his active service. For purposes of determining if this evidence is new and material, the credibility of the testimony is assumed. This evidence is new and material because it relates to an unestablished fact that is necessary to prove the claim. The Veteran provided additional medical and testimonial evidence related to his current sleep disorder. The claim is reopened. Service Connection Entitlement to service connection for a sleep disorder is denied. The Veteran contends that his active service caused a sleep disorder manifested by hypersomnolence.   Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a sleep disorder separate from his service-connected obstructive sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The medical evidence of record is devoid of evidence of a sleep disorder separate and apart from the service connected sleep apnea during the appeal period. Although the Veteran has reported that he has had sleep problems since discharge from service, there is no objective evidence of a diagnosis of any other current sleep disorder linked to active duty that is separate from his service-connected obstructive sleep apnea (OSA). The Veteran is competent to report that he has had sleep problems. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran has a particular sleep disorder that is a result of service, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).   The Veteran has not alleged that he has a separate underlying disability apart from OSA that causes a sleep disorder. At his November 1995 separation examination, the Veteran reported insomnia. There are no indications in the record that his insomnia symptoms were chronic, and the Veteran has had several sleep studies associated with his sleep apnea. In January 2007, his hypersomnolence symptoms were linked to his sleep apnea. At his February 2019 hearing, the Veteran reported hypersomnolence. However, the Veteran has already been granted service-connection for obstructive sleep apnea, a diagnosis that specifically contemplates hypersomnolence symptoms as part of the VA’s disability rating criteria. 38 C.F.R. § 4.100, Diagnostic Code 6847. There is no in-service evidence of a sleep disorder other than the Veteran’s service connected OSA. To the extent that the Veteran alleges he has had persistent sleep problems outside of his service-connected obstructive sleep apnea from active duty to the present, the Board finds the probative value of this allegation is undercut by medical history. The Veteran’s May 1972, May 1976, August 1979, January 1987, September 1988, and November 1995 medical examination reports showed mostly “normal” clinical evaluations. His service treatment records did not show that he sought treatment for any sleep disorders during active service. In February 2019, the Veteran reported in-service snoring, but linked this directly to his service-connected obstructive sleep apnea and not to any other sleep disorder. The Board notes that not only may the Veteran’s memory have dimmed with time, but the current statements may be influenced by the chance for pecuniary gain. The Board places greater probative weight on the contemporaneous service treatment records. There are no medical opinions in the record finding that the Veteran has any other sleep disorder besides his service connected OSA. Accordingly, the preponderance of the evidence is against the Veteran’s claim and service connection for a separate sleep disorder is not warranted. The claim is denied. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for epistaxis is remanded. If entitlement to an extraschedular rating has been raised, then the Board must determine whether referral to VA’s Director of Compensation Service is warranted. The Board cannot assign an extraschedular rating in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Veteran’s epistaxis is already rated at the highest schedular rating under the relevant diagnostic code. However, at his February 2019 hearing testimony, the Veteran reported symptoms and functional impairment that is not reasonably contemplated by the relevant diagnostic code, and evidence suggests he has experienced marked interference with employment due to his service-connected disability. The Veteran testified that, in addition to “obstruction” of the nasal passage” specifically addressed in the Diagnostic Code (DC) 6502 (38 C.F.R. § 4.79), he also has frequent (“more than six times a year”) nosebleeds, including “occasions when [he] worked and [he was] talking to a client, and [his] nose just start[ed] bleeding.” This symptom is not addressed in the DC. The Veteran also alleged additional symptoms of “Headaches, dizziness,” and feeling “kind of off balance.” The Board finds this presents an “exceptional” or “unusual” disability picture and the diagnostic criteria do not reasonably describe the severity or symptoms of the disability on appeal. The Veteran’s claim for an increased rating is remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The matter is REMANDED for the following actions: 1. Obtain updated VA and/or pertinent identified private treatment records to the extent possible. If records are unavailable, the Veteran’s claim file must be clearly documented, and the Veteran must be properly notified. 2. Refer the Veteran’s claim for an increased rating for epistaxis to VA’s Director of Compensation Service for extraschedular consideration. 3. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.