Citation Nr: 20038091 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 18-05 408 DATE: June 3, 2020 ORDER Entitlement to an earlier effective date prior to January 22, 2015 for service-connected left knee strain is denied. Entitlement to an effective date prior to January 22, 2015 for service-connected right knee strain is denied. Entitlement to an earlier effective date prior to January 22, 2015 for service-connected right ankle condition is denied. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran first filed a claim for bilateral knee pain, sleep apnea, and right ankle pain in September 2009, and this claim was finally denied in July 2010, the Veteran withdrew the claim in January 2015. 2. In January 2015, the RO considered the Veteran’s claim for service connection and granted service connection for bilateral knee and right ankle condition in March 2015. 3. The most probative evidence of record demonstrates that the Veteran’s current sleep apnea is related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to January 22, 2015 for service-connected bilateral knee strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.400. 2. The criteria for entitlement to an earlier effective date prior to January 22, 2015 for service-connected right ankle condition have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.400. 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on periods of active duty from June 1985 to July 1985 and October 1985 to December 2005. This matter comes before the Board of Veterans Appeals (Board) by March 2015 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veteran’s Law Judge (VLJ) in February 2020 for a hearing. A transcript of the hearing is of record. 1. Entitlement to an earlier effective date prior to January 22, 2015 for service-connected bilateral knee strain and right ankle condition. The Veteran asserts that he is entitled to an effective date earlier than January 22, 2015, for service connection for his bilateral knee disabilities and right ankle condition. The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. Appellate review of a rating decision is initiated by a Notice of Disagreement and perfected by filing a completed Substantive Appeal (VA Form 9) once a Statement of the Case (SOC) has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). A review of the record indicates that the Veteran first filed a claim for service connection for bilateral knee pain and right ankle condition on September 21, 2009. The RO issued a July 2010 rating decision which denied the Veteran’s claims for service connection for bilateral knee pain and right ankle condition. The Veteran filed a NOD in February 2011. No SOC or VA Form-9 was filed in association with these claims. On January 22, 2015, the Veteran submitted a VA Form 21-4138 stating that he wished to withdraw his appeal. In the February 2020 hearing before the undersigned, the Veteran asserted that he was given incorrect information regarding his appeal. However, the January 2015 request to withdraw was signed by the Veteran. As such, the Board finds that the appeal stemming from the Veteran’s September 2009 application was withdrawn. Subsequently, the RO issued a March 2015 rating decision granting service connection for bilateral knee pain and right ankle condition effective date of January 22, 2015. There is no formal or informal claim or other correspondence of record prior to this date seeking service connection for a bilateral knee condition or indicating intent to file a claim. As noted, the September 2009 claim was no longer pending. Therefore, January 22, 2015, is the earliest date of claim available. As to the date entitlement arose, even if entitlement arose prior to January 22, 2015, the date of claim, the effective date would be January 22, 2015, since this would be the later of the two dates. If entitlement arose after January 22, 2015, an earlier effective date would not be warranted under the law since that date would not precede January 22, 2015, the date currently assigned. Accordingly, the assigned effective date of January 22, 2015, is the earliest effective date possible for the Veteran’s award of service connection for his bilateral knee strain and right ankle condition. Accordingly, in light of the evidence of record, the Board finds that an effective date earlier than January 22, 2015, for the grant of service connection for bilateral knee strain and right ankle condition is not warranted. 2. Entitlement to service connection for sleep apnea The Veteran asserts that his current sleep apnea is related to his active duty service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1110, 113; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In addition, such chronic diseases may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of compensable degree or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In the present appeal, the Veteran’s sleep apnea is not such a chronic disease listed under 38 C.F.R. § 3.309(a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Veteran has a current diagnosis of obstructive sleep apnea, there the first Shedden element has been met. See June 2015 VA examination. The Veteran’s service treatment records (STRs) are silent complaint, treatment, or diagnosis of sleep apnea. However, in the February 2020 hearing before the undersigned, the Veteran testified that his sleep problems began during service when he was assigned to work in a chemical field. He asserted that he was made aware of the fact that he snored loudly. In March 2020, the Veteran submitted lay statements from his wife and three fellow service members concerning his snoring and fatigue symptoms during service. See March 2020 Buddy Statements. The Veteran, his wife, and his fellow service members are competent to report that the Veteran snored during and after service, and the Board finds no basis upon which to consider that they are not credible in this regard. Layno, 6 Vet. App. 465, 470; 38 C.F.R. § 3.159 (a)(2). Accordingly, the second element Shedden, in-service occurrence is met. The Veteran underwent a June 2015 VA Gulf War Exam, in which the examiner provided a negative nexus opinion concerning his sleep apnea. The examiner provided the rationale that the weight of medical literature is against a finding that exposure event during service was the cause. The Veteran underwent a private medical examination in March 2020 by Dr. J.M.D. After examination and review of the record, Dr. J.M.D. opined that the Veteran’s sleep apnea was “based on his military service, either as a primary condition or as a secondary condition …”. See March 2020 Private Medical Examination. In sum, the Board finds that the third Shedden element is present and service connection is warranted for the Veteran’s sleep apnea. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for sleep apnea is in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s sleep apnea. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith 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.