Citation Nr: 21075400 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-40 098A DATE: December 20, 2021 ORDER Entitlement to an earlier effective date for service-connected obstructive sleep apnea is denied. FINDINGS OF FACT 1. On December 7, 2011, the Veteran filed his claim for entitlement to service connection for narcolepsy. The Agency of Original Jurisdiction (AOJ) awarded service connection for narcolepsy in a rating decision dated January 2013. This decision subsequently became final, and the Veteran did not appeal. 2. The Veteran thereafter sought service connection for obstructive sleep apnea on June 2, 2014, alleging misdiagnosis of narcolepsy. However, sleep apnea was considered at the time of the January 2013 rating decision and found to be without merit. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for service-connected obstructive sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from May 1985 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a virtual hearing before the undersigned in July 2021. A transcript of the proceeding is of record. 1. Entitlement to an earlier effective date for service-connected obstructive sleep apnea The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the 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 the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The CAVC has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. However, the date entitlement arose is not the date that VA receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. "Claim" is 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, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015 and are not applicable in the present case. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). As such, any communication or action in this case, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran became service-connected for obstructive sleep apnea in a February 2015 rating decision; the AOJ established June 2, 2014 the day he filed this claim as the effective date for service connection. He contends, however, that he should receive an earlier effective date because he was originally misdiagnosed with narcolepsy, for which he has been service-connected since January 1, 2012. As such, he suggests he is entitled to an effective date of January 1, 2012 his effective date for narcolepsy for his service-connected sleep apnea. Following a review of the record, the Board finds that there is no basis for an earlier effective date because the controlling law sets the date of a grant of service connection as not being earlier than the date of claim under the statute and as the date of claim or the date entitlement arose, whichever is later, under the regulation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A review of the file reveals that the Veteran filed a claim for entitlement to service connection for narcolepsy in December 2011. Prior to adjudication, service treatment records (STRs) and a VA examination were associated with the file. These documents chronicle that he primarily suffered from symptoms including snoring, insomnia, and daytime somnolence. The VA examiner recorded, "Veteran was not sleeping well at night. He was falling asleep during the day. [He] went in for a sleep apnea test [and] was diagnosed instead with narcolepsy." In a January 2013 rating decision, the AOJ awarded service connection for narcolepsy and evaluated his condition as 10 percent disabling from January 1, 2012. By letter dated January 9, 2013, the Veteran was notified of this decision and his appellate rights. The Veteran did not appeal this rating decision, or submit new and material evidence, within one year of the notice of decision. Thus, this decision became final. 38 U.S.C. § 7252. It was not until June 2, 2014 that the Veteran first submitted a claim reflecting his intent to file for service connection for obstructive sleep apnea specifically. In accordance with the law, because the effective date for an award of service connection must be the date of receipt of the claim or the date entitlement arose, whichever is later, the Board finds that June 2, 2014 is the appropriate effective date. The Board has considered whether 38 C.F.R. § 3.157(b), in effect prior to April 2014, is applicable. This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in §3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that §3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to sleep problems in the VA clinic setting cannot constitute a formal or informal claim under 38 C.F.R. § 3.157(b). Pacheco, 27 Vet. App. 21 (2014); Sears, 16 Vet. App. at 249. The Board sympathizes with the Veteran's arguments suggesting that he was misdiagnosed with narcolepsy and instead, had sleep apnea. However, the Board is precluded from awarding benefits where they are not allowed by statute. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (finding where a statute specifically provided an effective date as the date of application, an earlier effective date was not allowed under equitable estoppel because payment of government benefits must be authorized by statute); Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990). Indeed, at the time the Veteran filed his claim for entitlement to service connection for narcolepsy, the scope of the claim included any sleep impairment condition encompassing his symptoms. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the veteran's description of the claim, reported symptoms, and the other information of record). Notably, the sleep study he received in 2011 showed he had an apnea-hypopnea index of 4 per hour which is, according to his physician, within normal limits and did not warrant a diagnosis of sleep apnea at that time. It was not until later that he suggested this may have been indicative of mild obstructive sleep apnea. Nonetheless, the AOJ considered the evidence of record at the time of the January 2013 rating decision and determined that service connection for narcolepsy not sleep apnea was warranted and subsequently provided. To the extent the Veteran believes he had a pending claim of service connection for sleep apnea which was not fully adjudicated, the Board observes that the medical opinion considered the same symptoms and found a diagnosis of narcolepsy rather than sleep apnea was the proper diagnosis. Thus, the Veteran was on notice that his symptoms were diagnosed as narcolepsy and any disagreement with the diagnosis or scope of claim considered in January 2013 resulted in an implicit denial of sleep apnea which he could have appealed. See Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010). (Continued on the next page) On these facts, because the earliest effective date legally possible has been assigned, and no effective date for the award of service connection for obstructive sleep apnea earlier than June 2, 2014 is warranted, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board concludes that an effective date earlier than June 2, 2014 for the grant of service connection for obstructive sleep apnea is not warranted, there is no reasonable doubt to be resolved, and the appeal is denied. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.