Citation Nr: 21065096 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-24 476 DATE: October 25, 2021 ORDER An effective date of July 29, 2013, but no earlier, for the award of service connection for sleep apnea is granted. FINDING OF FACT The Veteran filed an informal claim for service connection for sleep apnea on July 29, 2013. CONCLUSION OF LAW The criteria for an effective date of July 29, 2013, but no earlier, for the award of service connection for sleep apnea have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Marine Corps from September 1967 to May 1969. In January 2019, the Veteran provided testimony at a Board hearing before Veterans Law Judge (VLJ) Feinberg as to the issues of service connection for a right lower extremity neurological disorder, service connection for a left lower extremity neurological disorder, and an increased rating for left upper extremity radiculopathy. In July 2021, the Veteran provided testimony before the undersigned VLJ as to the issues of service connection for a right lower extremity neurological disorder, service connection for a left lower extremity neurological disorder, an increased rating for left upper extremity radiculopathy, and an earlier effective date for the award of service connection for sleep apnea. The Veteran previously provided testimony as to the issues of service connection for a right lower extremity neurological disorder, service connection for a left lower extremity neurological disorder, and an increased rating for left upper extremity radiculopathy during a January 2019 Board hearing before another VLJ. As such, the Board will not address those issues in this decision. Instead, the Board will offer the Veteran the opportunity to testify at a third Board hearing as to these issues and they will be the subject of one or more separate Board decisions. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Transcripts of the prior hearings are of record. Entitlement to an effective date prior to July 29, 2016, for the award of service connection for sleep apnea. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, a "claim" was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a 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). The Veteran asserts that he is entitled to an effective date of January 18, 2012, for the grant of service connection for obstructive sleep apnea. Alternatively, he contends that he is entitled to an effective date of July 29, 2013, for the grant of service connection. On January 18, 2012, the Veteran filed a claim seeking service connection for a neck disorder and a psychiatric disorder. In connection with that claim, he submitted a November 2012 Authorization and Consent to Release Information to VA (VA Form 21-4142), to develop evidence in support of his claim for the neck disorder. He identified November 2012 private medical records from J.A.B., M.D. as relevant to the claim. He also attached the November 2012 medical records from Dr. B. A June 2013 sleep study revealed a diagnosis of severe obstructive sleep apnea. In July 2013, the Veteran submitted additional private medical records from Dr. B. A January 2013 medical record from Dr. B. noted treatment for cervical disc herniation and a past medical history that was positive for sleep apnea. It was noted that there were signs and symptoms of sleep apnea, but there was no recent test or CPAP. On July 29, 2013, the Veteran submitted a Sleep Apnea Disability Benefits Questionnaire (DBQ). In a September 2013 rating decision, the AOJ granted service connection for a neck condition and PTSD, effective January 18, 2012. A March 2014 rating decision addressed the rating for the neck condition but did not address service connection for sleep apnea. The Sleep Apnea DBQ was listed as evidence used in the rating decision. The associated notification letter dated March 19, 2014, instructed the Veteran to contact the VA if he intended to file a claim for service connection for sleep apnea and that no other action would be taken unless further notification is received from the Veteran. In August 2014, the Veteran submitted a notice of disagreement with the September 2013 rating decision and the ratings assigned therein, including the rating for the neck disorder. In his notice of disagreement, he identified the private medical records of Dr. B., as well as the Sleep Apnea DBQ. During a July 2015 Decision Review Officer (DRO) hearing, the Veteran asserted that his sleep apnea was secondary to his service-connected PTSD. On the date of the DRO hearing, the Veteran submitted a statement in response to the March 19, 2014, notification letter. He indicated that he was informed of the letter at the DRO hearing. Veteran stated that he was filing a claim for service connection for sleep apnea as a direct claim or as secondary to PTSD. In a July 2015 letter, VA notified that the Veteran he must complete an application on a standardized form in order for his claim to be processed. On July 29, 2016, he submitted an intent to file a claim. On September 12, 2016, he submitted his formal claim. In connection with his claim he submitted medical opinions in support of his claim, as well as the July 2013 Sleep Apnea DBQ. The medical opinions found that his sleep apnea was secondary to his service-connected neck disorder. In September 2016, the AOJ granted entitlement to service connection for sleep apnea, effective July 29, 2016. Upon review of the evidence, the Board finds that an effective date of July 29, 2013, is warranted for the award of service connection for obstructive sleep apnea. On July 29, 2013, the Veteran submitted a Sleep Apnea DBQ. The DBQ form included a note to the physician completing the form that the "patient is applying to the [VA] for disability benefits. VA will consider the information you provide on this questionnaire as part of their evaluation in processing the veteran's claim." The Veteran submitted a completed Sleep Apnea DBQ that contained a diagnosis of sleep apnea, his symptoms, and his VA claim number. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the July 29, 2013, Sleep Apnea DBQ show (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski, 23 Vet. App. at 84. The Veteran also argues that he is entitled to an effective date of January 18, 2012, the date that he filed his claim of entitlement to service connection for a neck disorder. The Veteran's obstructive sleep apnea was granted as secondary to the neck disorder. Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has repeatedly rejected the argument that a disability service connected as secondary to an underlying service-connected disability be entitled to the effective date of the underlying disability. See Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017); Ellington v. Peake, 541 F.3d at 1364. See also Ross v. Peake, 21 Vet. App. 528 (2008). The Federal Circuit has also found that there is nothing in the history of 38 C.F.R. § 3.310 (a) to suggest that a claim for secondary service connection should be treated as part of a claim for primary service connection. Manzanares v. Shulkin, 863 F.3d at 1374. The Board has granted an effective date of July 29, 2013, the date the VA received his informal claim for service connection for obstructive sleep apnea. The Board has no legal basis upon which to assign an earlier effective date for secondary service connection for sleep apnea. The Board has considered the holding in Shea v. Wilkie, in which the Federal Circuit held that if a pro se claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, then the claimant has raised an informal claim for that disability under 38 C.F.R. § 3.155 (a) (in that he has identified the benefits sought). Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). VA must look "beyond the four corners of [claim-stating] documents when the documents themselves point elsewhere," such as to medical records. Id. at 1369. The November 2012 VA Form 21-4142 was submitted to develop evidence in support of his January 2012 claim for service connection for a neck disorder. On the VA Form 21-4142, the Veteran only identified November 2012 private records from Dr. B. The November 2012 private medical records from Dr. B. did not mention sleep apnea. Therefore, the November 2012 filings did not raise an informal claim for service connection sleep apnea. Moreover, the Veteran's July 10, 2013, submission of records from Dr. B. does not constitute an informal claim as the submission is not a claim-stating document. In addition, a review of the Veteran's claim-stating documents prior to July 29, 2013, for service connection for a neck disorder did not refer to specific treatment records containing a diagnosis of sleep apnea. Therefore, the Veteran's filings, even when read liberally, did not raise an informal claim of entitlement to service connection for sleep apnea prior to July 29, 2013. Based on the foregoing and after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's July 29, 2013, submission of the Sleep Apnea DBQ constitutes an informal claim for service connection for sleep apnea that was still pending when he submitted his July 2016 intent to file. There is no legal basis for assignment of an effective date prior to July 29, 2013, and because the preponderance of the evidence is against an even earlier effective date, the Board finds that entitlement to an effective date prior to July 29, 2013, for the award of service connection for obstructive sleep apnea is not warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.