Citation Nr: 21011828 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 190429-7584 DATE: March 2, 2021 ORDER Entitlement to an effective date of September 1, 2006, for the grant of service connection for obstructive sleep apnea, is granted. FINDINGS OF FACT 1. The Veteran’s initial claim for entitlement to service connection for a disability manifested by snoring was received on November 2, 2006 and has remained pending since that time. 2. The preponderance of evidence, including the January 2019 VA opinion, reflects that it is as likely as not that the Veteran’s obstructive sleep apnea had its onset during active service. CONCLUSION OF LAW The criteria for an effective date of September 1, 2006, for the grant of service connection for obstructive sleep apnea, have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The rating decision on appeal was issued in April 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2019 rating decision, the agency of original jurisdiction (AOJ) granted service connection for OSA and assigned an initial, 50 percent rating, effective October 25, 2018, the date of receipt of the Veteran’s petition to reopen the previously denied claim that was received on that date. In an April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket wherein he disagreed with the effective date assigned for the grant of service connection for obstructive sleep apnea (OSA). In a September 2019 decision, the Board granted an earlier effective date of May 9, 2017, for the grant of service connection for CUE. In that decision, the Board noted the Veteran’s contention that he started his OSA claim in 2006, but the Board found that the prior rating decisions, i.e., those dated prior to the receipt of his petition to reopen the previously denied claim that was received on May 9, 2017, were final and the Veteran had not alleged that a rating decision contained clear and unmistakable error (CUE). The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Joint Motion for Remand (JMR), the parties agreed that the effective date of May 9, 2017 was a favorable finding that should not be disturbed but that the September 2019 decision should be vacated to the extent that it failed to consider whether the Veteran’s April 2019 VA Form 10182 could be an allegation of CUE in the final March 2011 rating decision. The Court granted the JMR in June 2020 and the issue has returned to the Board for action consistent with the JMR. See June 2020 JMR and Court Order. The Veteran’s attorney has argued that the Veteran’s April 2019 VA Form 10182 should be liberally construed as a claim for CUE in the March 2011 rating decision that denied his request to reopen his previously denied claim for OSA, noting VA’s duty to fully and sympathetically develop a veteran’s claim to its optimum. The Veteran’s attorney has correctly noted that, in his April 2019 VA Form 10182, the Veteran requested reconsideration of the effective date for OSA and further indicated that, in January 2011, he had a sleep test, submitted that evidence and was denied in March 2011 but was finally approved using the same evidence from 2011. See October 2020 attorney statement. Under 38 C.F.R. § 3.105(a), a prior final decision can be reversed or amended where evidence establishes CUE. For CUE to exist: (1) “[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Any assertion of CUE must be pled with some degree of specificity and assert more than merely disagreement with how the facts of the case were weighed or evaluated. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium). In addressing the allegation of CUE in this case, the Board notes that, when very liberally construed, the Veteran’s April 2019 statement could be construed as an allegation of CUE in the March 2011 rating decision. Indeed, the Veteran’s April 2019 statement specified the date of the challenged decision and generally asserted that the correct facts, e.g., a diagnosis of OSA as shown by the January 2011 sleep study, were not considered by the adjudicator. He also generally asserted that, if not for that error, service connection would have been granted, as shown by the eventual grant of service connection which he alleges was based upon the same evidence. Despite the allegation and finding of CUE in the March 2011 rating decision, the Board, again, notes that this appeal is being adjudicated under the AMA framework and it is bound by the applicable statutes and regulations. In this context, the Board notes that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the AOJ in the first instance. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Indeed, the June 2020 JMR suggests that the Board may need to refer the CUE issue to the AOJ, and the Veteran’s attorney requested that the CUE issue be remanded to the AOJ for initial consideration. See June 2020 JMR; October 2020 Veteran statement. Under the legacy system, the Board would be obligated to refer a new theory of CUE to the AOJ to “be decided in the same manner as any other claim.” See Godfrey v. Brown, 7 Vet. App. 398, 410 (1995). However, under the AMA framework, the Board does not have the authority to refer the CUE issue, or any other newly raised issue, to the AOJ. Nor does the Board have the authority to remand the CUE issue because there is no indication or argument that an error was made by the AOJ prior to or at the time of the rating decision on appeal. Indeed, the Veteran and his attorney have argued that the April 2019 VA Form 10182 raised the allegation of CUE, which was received after the April 2019 rating decision, and there is no indication or allegation that the evidentiary record contained an allegation of CUE prior or at the time of the April 2019 rating decision. Therefore, the Board is unable to take action on the CUE claim under the parameters of the AMA framework. Nevertheless, the Board has jurisdiction to consider the earlier effective date claim based upon the evidence of record at the time of the April 2019 rating decision and, based upon review of this evidence, the Board finds that 38 C.F.R. § 3.156(b) provides a basis to grant an earlier effective date for the grant of service connection for OSA in this case. The effective date for a grant of service connection will be the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service. 38 U.S.C. § 5110(a); 38 C.F.R.§ 3.400(b)(2)(i). Where a claim has not been filed within one year after separation from service, the law provides that the effective date of a compensation award 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. Id. Regulations defining a “claim” were revised, effective March 24, 2015, and eliminated informal claims and required claims to be on specific standard forms. However, because this appeal includes consideration of communications received prior to March 2015, the Board finds that the regulations in effect prior to March 2015 apply in this case. The applicable regulation defined a “claim” as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2015). With regard to informal claims, the regulation in effect prior to March 2015 stated that “[a]ny communication or action, indicating intent to apply for one or more benefits under the laws administered by the [VA]...may be considered an informal claim. Such informal claim must identify the benefit sought.” See 38 C.F.R. § 3.155(a) (2015). In November 2006, the Veteran filed a claim seeking service connection for several disabilities, including one identified as “snoring”. In a March 2007 rating decision (which was issued in April 2007), the Regional Office (RO) denied service connection for sleep apnea syndrome, claimed as snoring. In that decision, the RO considered service treatment records (STRs) submitted by the Veteran in November 2006, which it noted were silent for complaints, treatment, or a diagnosis of sleep apna. The RO also considered an October 2006 VA general medical examination which it noted did not contain any subjective complaints, objective findings, or a diagnosis of sleep apnea. See March 2007 rating decision. The Veteran was advised of the decision and his appellate rights in April 2007, but he did not submit a notice of disagreement (NOD) as to the decision. Instead, the next communication received from the Veteran regarding sleep apnea was a claim/petition to reopen received in November 2010, which the RO denied in the March 2011 rating decision. While the Veteran did not disagree with or initiate an appeal following the March 2007 rating decision, the evidence reflects that he had received treatment at the San Juan VA Medical Center (VAMC) in October 2006 and continued to receive treatment at the VAMC during the one-year appeal period following the issuance of the March 2007 rating decision, as evidenced by the treatment records that were created at that time. See e.g., May 2007 VA treatment record. Those treatment records were constructively received by the AOJ on the date they were generated and were reasonably related to his sleep apnea claim; however, the AOJ never determined whether the treatment records generated during the one-year appeal period following the issuance of the March 2007 rating decision were new and material to his claim. In this regard, the Board notes that, while the March 2011 rating decision adjudicated the Veteran’s November 2010 petition to reopen the previously denied sleep apnea claim, it only considered VA treatment records dated from August 2009 to January 2011 and, thus, any determination as to new and material evidence made at that time did not apply to the VA treatment records generated prior to August 2009. Therefore, the Board finds that the March 2007 rating decision did not become final and the Veteran’s November 2, 2006 claim remained pending. 38 C.F.R. §3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). Turning back to the effective date discussion, the Board acknowledges that the November 2006 claim was received within one year of the Veteran’s separation from service and, as such, the proper effective date for service connection for OSA is the day after separation from service or the day entitlement arose. See 38 U.S.C. § 5110(a); 38 C.F.R.§ 3.400(b)(2)(i). The term “date entitlement arose” is not defined in the current statute or regulation. However, the Court 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). It is important to note that an effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). 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. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this case, the January 2019 VA examiner opined that it is as likely as not that his current OSA was incurred in service, as she noted that sleep apnea was suspected on the Veteran’s May 2006 retirement examination, which suggested that his sleep apnea had its onset during service. See January 2019 VA opinion. Based on the January 2019 VA examination and the other medical evidence of record, including continued reports of snoring during the year after discharge from service and a diagnosis of sleep apnea in January 2011 based upon lay reports of snoring and witnessed apneic episodes, the Board finds that entitlement to service connection arose in this case when the Veteran filed his claim in November 2006, during the year after discharge from service on August 31, 2006. See e.g., January 2007 Veteran statement; January 2011 private treatment records. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds an effective date of September 1, 2006 is warranted for the grant of service connection for obstructive sleep apnea. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.