Citation Nr: 21076156 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-47 715 38 C.F.R. § DATE: December 22, 2021 ORDER Entitlement to an effective date of January 25, 2008 for service connection for sleep apnea is denied. Entitlement to service connection for pes planus is denied. FINDINGS OF FACT 1. The RO received the Veteran's original claim for service connection for sleep apnea on July 5, 2005. 2. In March 2006, the RO denied service connection for obstructive sleep apnea. The Veteran expressed timely disagreement in July 2006, and the RO issue a statement of the case on November 1, 2007, advising the Veteran that he had 60 days to perfect an appeal. 3. On December 18, 27, and 28, 2007, the RO received additional new lay evidence from fellow Sailors relevant to service connection for sleep apnea that indicated an intent to pursue the appeal. 4. The RO received the Veteran's substantive appeal (VA Form 9) on January 7, 2008, after the expiration of the 60 days, and on January 14, 2008 advised the Veteran that it was untimely and provided his options to appeal. On January 25, 2008, the RO received the Veteran's application to reopen the claim. 5. The weight of competent and credible evidence did not demonstrate entitlement to service connection for obstructive sleep apnea until later than January 25, 2008. 6. Resolving reasonable doubt in favor of the Veteran, the Veteran's pes planus was onset during and continued after his Naval service. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 5, 2005 for service connection for sleep apnea have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for service connection for pes planus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1968 to August 1972 and from February 1991 to July 1991 with service between these periods and to 1993 in the Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) from November 2009, November 2014, January 2017, and March 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans' Law Judge at an August 2021 Board virtual hearing. A transcript of the hearing has been associated with the claims file. The Board acknowledges that in the March 2020 rating decision addressing service connection for pes planus, the RO declined to reopen the claim because new and material evidence had not been received referring to both a March 2006 and January 2017 rating decisions. However, A decision in March 2006 did not address the service connection issue. The January 2017 decision addressed the issue on the merits and the Veteran timely appealed. Therefore, the March 2020 rating decision indicated that no change was warranted, but the Board need not address whether new and material evidence was required as the issue was first addressed on the merits in the January 2017 decision on appeal. Earlier Effective Date The Veteran contends that he is entitled to an effective date prior to January 25, 2008 for service connection for sleep apnea. Except as otherwise provided, 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. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. An appeal consists of a timely filed Notice of Disagreement submitted in accordance with the provisions of § 19.21, and either § 19.52(a) or § 20.501(a) of this chapter, as applicable and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. However, the submission of a substantive appeal is not jurisdictional before for the Board. In December 2001, the Veteran was diagnosed with moderate obstructive sleep apnea. See December 2001 Medical Treatment Record-Non-Government Facility, p.4. The Veteran's claim for service connection for sleep apnea was received by the RO on July 5, 2005. See July 2005 VA 21-526 Veterans Application for Compensation or Pension. In March 2006, the RO denied service connection for obstructive sleep apnea. The Veteran expressed timely disagreement in July 2006, and the RO issued a statement of the case on November 1, 2007, advising the Veteran that he had 60 days to perfect an appeal. On December 18, 27, and 28, 2007, the RO received additional new lay evidence from fellow Sailors that were material to service connection for sleep apnea and that indicated an intent to pursue the appeal. The RO received the Veteran's substantive appeal (VA Form 9) on January 7, 2008, after the expiration of the 60 days. On January 14, 2008, the RO informed the Veteran that his form 9 was not excepted because it was due by December 31, 2007 and not submitted until January 7, 2008. Therefore, the Veteran's appeal was closed because his form 9 was received more than 60 days after his SOC was mailed. There was no indication of record that the Veteran did not receive the SOC timely or that he appealed the timeliness decision. See January 2008 Notification Letter (e.g. VA 20-8993, VA 21-0290, PCGL). On January 25, 2008, the Veteran submitted a statement requesting to reopen his sleep apnea claim. See January 2008 VA 21-4138 Statement in Support of Claim. In his current substantive appeal, the Veteran noted that the RO received his substantive appeal late because of slow mail deliveries during the December holiday. During the Board hearing, the Veteran testified that he submitted his form 9 late because he was waiting for statements from fellow soldiers. See January 2008 Form 9. The form was dated January 7, 2008 and first received by his service organization representative. However, the file shows that statements from fellow Sailors were received by the RO in December 2007. Employing jurisdictional discretion with respect to the substantive appeal, and resolving all doubt in the Veteran's favor, the Board finds that the new and material evidence of lay statements received in December 2007 relevant to sleep apnea indicated the Veteran's continued desire to appeal. Moreover, this new evidence should have required readjudication of the claim in a supplemental statement of the case. Therefore, the Board finds that the March 2006 rating decision was not final, and July 5, 2005 is the applicable date of claim. However, in response to the application to reopen the claim, the RO readjudicated it in a July 2008 in which it considered the December 2007 lay statements but continued to deny service connection on the merits. The Veteran expressed timely disagreement and perfected the appeal for service connection in November 2009. Turing to the matter of what date entitlement arose, in November 2009, the RO considered the December 2007 lay statements but correctly found that lay reports of snoring in service were not sufficient to demonstrate an onset of the disorder during active or Reserve service or demonstrated that it was caused by any aspect of service. On February 6, 2014, the RO granted service connection for obstructive sleep apnea. The RO cited the diagnosis of sleep apnea in a study in December 2001, lay statements from the Veteran and others, and several statements by medical providers, received on January 24, 2009. These lay statements reported only observations of snoring and the medical providers provided brief and conclusory opinions. Finally, the RO obtained a supportive opinion from a VA examiner in a July 1, 2013 examination report. Even though the date of claim is July 7, 2005, the date of entitlement to service connection was not established until after January 25, 2008 when competent and credible evidence of an onset or cause by service was received. Therefore, an effective date earlier than January 25, 2008 is not warranted. SERVICE CONNECTION Generally, to establish service connection a Veteran must 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 incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (2018). Pes Planus The Veteran contends that his pes planus had its onset during service. The Veteran's service treatment records (STRs) are associated with the claims file. Service personnel records show that the Veteran served as a dental technician. STRs include a report of examination June 1968 at enlistment that is silent for any foot abnormalities, and the Veteran is presumed sound at entry on active duty. In July 1968, the Veteran sought treatment for flatfeet and tenderness of arches. The Veteran was diagnosed with pes planus. See May 2008 STR-Medical, p.51. In a December 1973 report of medical history, the Veteran stated that he had at the time or in the past had foot trouble. See May 2008 STR-Medical, p.6. In a December 1973 report of medical examination, the clinical evaluation revealed the Veteran had abnormal feet, he was listed as having flat feet. See May 2008 STR-Medical, p.32. Eight Reserve physical examination reports from 1977 to 1989 are silent for any foot abnormalities. In a May 1991 report of medical history, the Veteran's health was marked as excellent, and he denied ever having foot trouble. However, the Veteran's clinical evaluation was abnormal for feet, revealing he had pes planus. See August 2005 STR-Medical, p.11 In December 2016, the Veteran was afforded a VA examination. The Veteran did not review the Veteran's claim file or medical evidence. The examiner noted a diagnosis of bilateral pes planus. The Veteran did not use any assistive devices, but the condition did impact his ability to work due to severe limitation in standing, walking, and running. The examiner did not provide comments on the onset or cause for the disorder. In August 2021, the Veteran testified at a Board hearing that he was not sure when he was diagnosed with pes planus (flatfoot) but did not have the condition going into the military but coming out of the military. The Veteran stated that he was prescribed orthopedics that he wore in his work shoes, but the Veteran indicated that occurred as an outpatient and he did not have those records. See August 2021 Hearing Transcript, p.4. As to a nexus between the Veteran's current bilateral pes planus and in-service bilateral pes planus, the Veteran reported having experienced foot pain in service and a continued worsening since service. The Veteran is competent to report continuation of pes planus, as the symptoms of pes planus are readily observable by lay persons. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran entered active duty in sound condition of his feet, and his reports of onset in service are consistent with the notations of a military examiner during the discharge examination. Accordingly, the Veteran's competent and credible lay evidence is probative in establishing a connection between the current bilateral pes planus and his in-service bilateral pes planus. (continued next page) The Veteran's statements support a finding that his pes planus has been present since service, and in light of the in-service and current medical findings of bilateral pes planus, the Board finds that service connection for pes planus is warranted. Service connection for bilateral pes planus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, Associate 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.