Citation Nr: 21063769 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 05-37 384 DATE: October 15, 2021 ORDER Entitlement to an earlier effective date than April 1, 2008, for service connection for obstructive sleep apnea is denied. Entitlement to an earlier effective date than April 1, 2008, for service connection for diabetes mellitus is denied. Entitlement to an earlier effective date than April 1, 2008, for service connection for hypertension is denied. REMANDED Entitlement to an increased rating for a right knee disability is remanded. Entitlement to an increased rating for bilateral plantar fasciitis with degenerative changes, plantar neuropathy, and left foot heel spurs is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. VA first received a claim of entitlement to service connection for obstructive sleep apnea on April 1, 2008. In July 2016, VA established entitlement to service connection for obstructive sleep apnea and assigned a 50 percent rating, effective April 1, 2008, the date the claim was first received by VA. 2. VA first received a claim of entitlement to service connection for diabetes mellitus on April 1, 2008. In July 2016, VA established entitlement to service connection for diabetes mellitus and assigned a 20 percent rating, effective April 1, 2008, the date the claim was first received by VA. 3. VA first received a claim of entitlement to service connection for hypertension on April 1, 2008. In July 2016, VA established entitlement to service connection for hypertension and assigned a 0 percent rating, effective April 1, 2008, the date the claim was first received by VA. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for entitlement to an earlier effective date for service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 3. The criteria for entitlement to an earlier effective date for service connection for hypertension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2015 and July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Effective Date 1. Entitlement to an earlier effective date for service connection for obstructive sleep apnea. 2. Entitlement to an earlier effective date for service connection for diabetes mellitus 3. Entitlement to an earlier effective date for service connection for hypertension Generally, the effective date for service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of 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). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. If a formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. The effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Veteran contends he is entitled to an earlier effective date than April 1, 2008, for service connection for obstructive sleep apnea, diabetes mellitus, and hypertension. The Veteran filed an original informal claim for service-connection for sleep apnea, diabetes mellitus, and hypertension that was received by VA on April 1, 2008. As a result of that claim filing, in July 2016, after consideration of private March 2008 and December 2010 physician letters, VA established entitlement to service connection for obstructive sleep apnea and assigned a 50 percent rating, effective April 1, 2008; entitlement to service connection for diabetes mellitus and assigned a 20 percent rating, effective April 1, 2008; and entitlement to service connection for hypertension and assigned a 0 percent rating, effective April 1, 2008. For all three service connection claims, VA assigned April 1, 2008 as the effective date as that was the date the claim was first received by VA, and was more than one year following separation from service. The Board finds that the record does not show any communication that could be interpreted as a claim for benefits for sleep apnea, diabetes mellitus, or hypertension prior to the receipt of the April 1, 2008 claim. Therefore, an earlier effective date prior to April 1, 2008, is not warranted as that is the date the claim was first filed. The Veteran contends that he is entitled to an earlier effective date for service connection because, in each case, the Veteran asserted secondary service connection to a right knee disability. Thus, the Veteran believes that the proper effective date for sleep apnea, diabetes mellitus, and hypertension is the effective date of service connection for the right knee disability. Secondary service connection is established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary condition shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). The plain meaning of that regulation is and has always been to require VA to give secondarily service-connected disabilities the same treatment (no more or less favorable treatment) as the underlying service-connected disabilities for all determinations. Roper v. Nicholson, 20 Vet. App. 173 (2006). A requirement that a secondary disability be considered a part of an original disability does not establish that the original disability and the secondary disability must receive identical effective dates. A per se rule requiring identical effective dates for primary and secondary disabilities would be illogical, because secondary disabilities may not arise until years after the onset of the original disability. The effective date for secondary disabilities is governed by 38 C.F.R. § 3.400, which establishes the effective date as the date of receipt of the claim, or the date entitlement arose, whichever is later. That result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards and provides generally that unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application. The statute contains no exception to that rule for a claim seeking service connection for a secondary disability. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008). The effective date for secondary service connection is 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; Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173 (2006). The Board finds that an effective date prior to April 1, 2008 for the award of service connection for sleep apnea, diabetes mellitus, and hypertension is not warranted. The record does not show any evidence or statement prior to April 1, 2008, relating to any claim for benefits for sleep apnea, diabetes mellitus, or hypertension. Therefore, for all three disabilities, the Board finds that the claim for benefits was first received by VA on April 1, 2008, and no earlier effective date for service connection can be assigned. The Board finds that the preponderance of the evidence is against the claim for an effective date prior to April 1, 2008, for service connection for sleep apnea, diabetes mellitus, and hypertension. Accordingly, the Board finds that the effective date for service connection for obstructive sleep apnea, diabetes mellitus, and hypertension can be no earlier than the date of the claim was first received by VA on April 1, 2008. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating for a right knee disability is remanded. 2. Entitlement to an increased rating for bilateral plantar fasciitis with degenerative changes, plantar neuropathy, and left foot heel spurs is remanded. In November 2020 written correspondence, the Veteran reported receiving a fully favorable decision from the Social Security Administration (SSA) regarding disability benefits. Documentation of the Veteran's SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran's claim is not of record. The Department of Veterans Affairs (VA) has a duty to assist the Veteran that includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181 (1992). Clinical documentation dated after November 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In November 2020 written correspondence, the Veteran explicitly raised the issue of entitlement to TDIU. Therefore, the Board finds that a claim for TDIU was reasonably raised by the record during the course of an appeal for increased ratings and that claim is part of the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Agency of Original Jurisdiction has not yet considered the issue of entitlement to TDIU in connection with the current claims for higher ratings. Thus, the Board finds that, after giving the Veteran an opportunity to file a formal claim for TDIU, and completing the other actions requested, the RO should adjudicate that matter in the first instance, to avoid any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claim is also inextricably intertwined with the increased rating claims being remanded. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, to assist him to file a formal application for TDIU. 2. Send the Veteran a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU. 3. Contact the SSA and request that documentation of the Veteran's award of disability benefits or the denial of that claim and copies of all records developed in association with the decision. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.