Citation Nr: 21071878 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-28 748 DATE: December 1, 2021 ORDER An effective date of May 5, 2008, but no earlier, for posttraumatic stress disorder (PTSD) is granted. Service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. On May 5, 2008, the RO received the Veteran's initial claim of entitlement to service connection for PTSD and sleep apnea. 2. In September 2008, the RO denied service connection for PTSD and sleep apnea. The RO acknowledged in the September 2008 rating decision that VA did not have all of the Veteran's service records. The Veteran did not appeal that denial. 3. In February 2012, VA received the Veteran's claim seeking to reopen the previously denied claims of entitlement to service connection for PTSD and sleep apnea. 4. In a December 2012 rating decision, the RO granted service connection for PTSD and assigned an effective date of February 2, 2012, the date VA received his application requesting that the claim be reopened. 5. The Veteran's February 2012 claim of entitlement to service connection for PTSD was granted based in part on the receipt of relevant service department records that were not associated with the claims file when VA first decided the claim in September 2008. As a result, VA was required to reconsider the September 2008 denial of the claim of entitlement to service connection. 6. The Veteran's entitlement to service connection for PTSD preceded his May 5, 2008 claim for service connection for that condition. 7. The Veteran's sleep apnea is related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 5, 2008, but not earlier, for the grant of service connection for PTSD are met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.156(c)(3), 3.400. 2. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3. 310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to October 1982 and from October 2004 to December 2005. These matters come before the Board of Veterans' Appeal (Board) on appeal from a December 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. However, the Board also notes that new and material evidence is not required for consideration of the claim for service connection for sleep apnea. Although the September 2008 rating decision denied a claim for service connection for sleep apnea, that decision did not become final because relevant service records were associated with the claims file after that decision, as discussed further below. Any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as opposed to requiring new and material evidence to reopen it. 38 C.F.R. § 3.156(c). Here, the record reflects that the Veteran's complete service records were first added to the record after February 2012. The records are relevant to the claim for service connection for sleep apnea secondary to PTSD as they reflect the Veteran's stressors for PTSD during active service. Accordingly, the Board will consider the claim for service connection for sleep apnea on a de novo basis. Effective Dates The Veteran contends that he is entitled to an earlier effective date than currently assigned for his service-connected PTSD. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. If a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date of benefits will be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). If, however, at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). When benefits are awarded based all or in part on the receipt of service department records that were not "associated with the claims file when VA first decided the claim," VA allows the assignment of an effective date of benefits "on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). A review of the evidence of record reveals that the Veteran's claim of entitlement to service connection for PTSD was initially denied in a September 2008 rating decision. The RO acknowledged in the September 2008 rating decision that the Veteran had a diagnosis of PTSD and that VA did not have all of the Veteran's service records. Although notified of the denial in a letter dated in September 2008, the Veteran did not initiate an appeal. Moreover, no additional evidence was received within the one-year appeal period following notification of the denial. See 38 C.F.R. § 3.156(b). Typically, this fact would render that decision final and binding based on the evidence then of record, and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. In this circumstance, VA could only reopen and review this claim upon receipt of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The effective date of benefits would then be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later. Nevertheless, resolving all doubt in favor of the Veteran the Board finds that additional relevant service records were associated with the claims file following the September 2008 denial, and that the associated records at least in part formed the basis of the award of service connection. Specifically, VA requested service records in May 2008 via a PIES request. However, the August 2008 PIES response specifically noted that the request should have been addressed under Code 11 and not Code 13, as it was an invalid DPRIS code. Although the record reflects that another PIES request was made following this response, there is no evidence that it was made using the appropriate code or that a response to this request was received. Accordingly, although the additional service treatment records existed at the time of the September 2008 denial, they were not associated with the claims file or considered by the RO until the December 2012 rating decision. Pursuant to 38 C.F.R. § 3.156(c), the additional service records received require reconsideration of the claim. Accordingly, because the Veteran's award of service connection was based in part on the receipt of service department records that were not "associated with the claims file when VA first decided the claim," the proper effective date of his award will be the latter of the date entitlement arose or the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(3). The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the Veteran's claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. A claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p). Moreover, it has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. The Board notes that the Veteran does not assert that he filed a claim of service connection for PTSD at any time prior to discharge from active military service, or within one year of his separation from service. The record shows that the Veteran first filed a claim for PTSD on May 5, 2008 via a VA Form 21-4138, Statement in Support of Claim. Although the Veteran asserted at the August 2021 Board hearing that he filed a claim of service connection for PTSD in 2007, the only service connection claim in the record prior to May 2008 is a June 2007 claim of service connection for an abdominal disability. As the June 2007 claim did not involve PTSD, the date that claim was received cannot be used as a basis for assigning an effective date of service connection for PTSD. The date entitlement arose is the date the claimant meets the basic eligibility criteria for the benefit. The term "date entitlement arose" is somewhat ambiguous. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Here, the September 2008 rating decision conceded the Veteran had a current diagnosis of PTSD. This finding is sufficient to establish that entitlement arose prior to May 5, 2008 date of claim. The May 5, 2008 date of claim is therefore the appropriate effective date for the grant of service connection for PTSD. For this reason, the Board finds that an earlier effective date of May 5, 2008 for the grant of service connection for PTSD is warranted. Service Connection The Veteran essentially contends that service connection for sleep apnea is warranted because he developed symptoms, including snoring, associated with sleep apnea during active duty. He also contends that service connection for sleep apnea is warranted as a result of his service-connected PTSD. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). Turning to the relevant evidence, service treatment records are absent complaints of or treatment for signs or symptoms of sleep apnea. Post-service treatment records show diagnoses of and treatment for sleep apnea, including use of a CPAP machine. In an August 2021 statement, the Veteran's wife also reported that she noticed the Veteran's snoring prior to their marriage in 2010. She also endorsed that the snoring had worsened throughout the years and that she noticed that the Veteran would stop breathing during his sleep and she would have to wake him up. The Veteran's wife further stated that these occurrences have become more and more frequent, including noticeable gasping for air, until he was treated with a CPAP machine. In an August 2021 report completed by the Veteran's treating physician, the physician opined that the Veteran's sleep apnea is more likely than not related to his service-connected PTSD. The physician explained that there was a myriad of scientific literature to support this association, which he attached to his opinion. After review of the record, the Board finds that service connection for sleep apnea is warranted. Here, the Board finds the Veteran's reports of sleep apnea symptoms during service, and his wife's reports of symptoms thereafter, to be both competent and credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In addressing the competent nexus opinion evidence of record, the Board finds that the positive opinion of the August 2021 private physician, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes post-service treatment records documenting treatment for obstructive sleep apnea and service-connected PTSD, and findings that the accepted medical literature indicates that there is a bidirectional relationship between PTSD and sleep disturbances including sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no contrary opinion of record. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for sleep apnea is granted. 38 U.S.C. §§ 1110, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.