Citation Nr: 21013442 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-36 164 DATE: March 9, 2021 ORDER Entitlement to an effective date earlier than January 7, 2013 for the grant of service connection for obstructive sleep apnea (OSA) is denied. FINDING OF FACT The Department of Veterans Affairs (VA) received the Veteran’s claim for entitlement to service connection for OSA on January 7, 2013; no written communication was received prior to January 7, 2013 that could be construed as an informal claim for entitlement to service connection for sleep apnea. CONCLUSION OF LAW The criteria for an effective date earlier than January 7, 2013 for the grant of service connection for sleep apnea are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1968 to May 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a VA Agency of Original Jurisdiction (AOJ) rating decision dated in May 2014. The Veteran testified at a Board hearing in October 2015. A copy of the transcript has been associated with the claims file. In October 2020, the Veteran was notified that the Veterans Law Judge who conducted the October 2015 hearing was no longer employed by the Board, and he was offered another hearing. However, the Veteran did not reply or elect another hearing. Therefore, a decision will be made considering the transcript of record. This case was most recently before the Board in May 2020. It was remanded to the AOJ for additional development. The Board finds that the AOJ substantially complied with all remand directives, making another remand unnecessary. Stegall v. West, 11 Vet. App. (1998). In this regard, the Board does note that in the May 2020 Board remand, the Board directed that the AOJ adjudicate a claim of clear and unmistakable error (CUE) in a November 2012 rating decision; the AOJ was instructed to not return the case to the Board until either the Veteran perfected his appeal as to the CUE claim or the time period for doing so expired, whichever occurred first unless otherwise indicated by the Veteran and/or his representative. The AOJ adjudicated the Veteran’s CUE claim in an August 2020 rating decision, and then returned the earlier effective date appeal to the Board. The Board finds that the Veteran is still within the time period to perfect his appeal of the CUE claim denial, and should he subsequently perfect and prevail as to that appeal, any effective date would accordingly be adjusted. As such, the Board finds that it may proceed to adjudicate the Veteran’s current earlier effective date appeal. 1. Entitlement to an effective date earlier than January 7, 2013 for the grant of service connection for sleep apnea The Veteran contends that the effective date assigned for the grant of service connection for OSA should be earlier than January 7, 2013 because he was diagnosed with sleep apnea in 2006 and a claim for service was reasonably raised by the record earlier than January 7, 2013. For the reasons set forth below, the claim must be denied. The effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or the date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The Board acknowledges that VA revised the requirements for a valid claim for VA benefits effective March 24, 2015. However, as this claim for an earlier effective date pertains to a period prior to this effective date, the former version of VA regulations for claims is to be considered in the adjudication of this appeal. Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § § 3.151 (2014). Any communication or action indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. 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. If 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. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2014). In some cases, the date of relevant VA treatment reports and the date of receipt of private treatment reports is the date of an informal claim if a relevant claim is received within one year from the date of treatment. 38 C.F.R. § 3.157 (b)(1, 2) (2014). The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record. Id. The provisions of 38 U.S.C. § 5110 refer to the date an “application” is received. And “date of receipt” means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2014). While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and a “claim” is defined broadly as a “written communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA.” 38 C.F.R. § 3.1(p) (2014). While VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by the claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The mere presence of a disability does not establish an intent on the part of a Veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). In the instant case, the Veteran filed an informal claim for service connection for sleep apnea, received on January 7, 2013. VA received two documents, a letter from the Veteran’s then-representative indicating that the Veteran had a “sleeping disorder,” and an article in support of the claim. The Veteran was afforded a VA examination in April 2014. In May 2014, the AOJ granted service connection for OSA, with an effective date of January 7, 2013. In August 2014, the Veteran submitted his Notice of Disagreement. He argued that the effective date for service connection should be earlier because entitlement arose in 2006. The Veteran submitted private records indicating he was diagnosed with OSA after a sleep study in April 2006. In his October 2014 VA Form 9, the Veteran argued that his claim was reasonably raised by the record earlier than January 7, 2013. In September 2015, the Veteran’s then-representative submitted written argument. He argued that “in making the determination on when entitlement arose, it does not matter when any of the evidence was submitted. It only matters what all of the evidence shows, no matter when submitted.” The representative cited Delisio v. Shinseki, 25 Vet. App. 45 (2001). He further argued that a veteran’s submissions must be read sympathetically to ascertain all potential claims, and the duty to assist requires VA to inform veterans of benefits available and to assist them in developing their claims. In this case, he contended that the Veteran was not properly notified or informed that he should apply for service connection for OSA, despite notifying a VA examiner he had difficulty sleeping and described the symptoms of his disability. The Veteran’s spouse also submitted a statement describing the Veteran’s sleep apnea symptoms and getting him to participate in a sleep study in 2006. A Board hearing was held in September 2015. The Veteran explained why he did not file a claim earlier than January 7, 2013, but said that he knew that he could. Based on the foregoing, the Board finds that the claim for an earlier effective date must be denied. First, the Board concludes that the date of the claim for service connection was January 7, 2013. The AOJ did not receive a formal claim on a form prescribed by the Secretary; VA received an informal claim in the form of a letter and an article in support of the claim. There is no written communication indicating an intent to file a claim for entitlement to service connection for sleep apnea prior to January 7, 2013. Next, the Board determines the date entitlement arose. In this regard, the evidence of record contains an April 2006 sleep study, which was received by the AOJ in August 2014. Thus, entitlement arose in April 2006. To reiterate the aforementioned law, 38 C.F.R. § 3.400 (q)(2) states that the later either of the date of the claim (in this case, January 7, 2013) or the date upon which entitlement arose (in this case, April 2006) controls, and is the appropriate effective date. The date of the claim, January 7, 2013, is later than the date entitlement arose, in 2006; therefore, the date of the claim controls. As previously stated, the Veteran is currently in receipt of a January 7, 2013 effective date. The Board has considered the Veteran’s contention that his claim for service connection was reasonably raised by the record prior to January 7, 2013. However, a review of the record does not show any communication received by the AOJ that could be construed as an informal claim for entitlement to service connection for sleep apnea or a sleeping disorder earlier than January 7, 2013. No correspondence was added to the claims file between May 1983 and June 2011. In June 2011, a report of a phone call is documented, and the Veteran indicated that he intended to file for service connection for hearing loss, and he was not intending to file for service connection for posttraumatic stress disorder (PTSD). There is no mention of a sleep or breathing disability. A formal claim was received in August 2011, and the Veteran listed “tinnitus and bilateral hearing disorder, depression, and peripheral neuropathy.” Again, the Veteran did not mention a sleep or breathing disability. After August 2011, no other correspondence was received by the Veteran or his representative indicating a claim, intent to file a claim, or different disability other than tinnitus, hearing loss, depression, or neuropathy until January 7, 2013. While the Veteran’s representative argued that there was a duty to assist error because the Veteran reported a sleep disorder and disabling symptoms to a VA examiner prior to January 7, 2013, the Board notes that there is no note of such a report in any VA examination report prior to 2013. The only VA examination conducted in the relevant timeframe was a VA examination for hearing loss in August 2012, which was completed by an audiologist. While the Veteran may have reported such symptoms to the audiologist, there is no evidence in the claims file that the Veterans Benefits Administration (VBA) had notice that the Veteran had OSA, or intended to file a claim for service connection for the disability prior to January 7, 2013. As there is no documented evidence that the claim for sleep apnea was part of the record before the AOJ prior to January 7, 2013, it was therefore was not reasonably raised by the record. The mere existence of a disability prior to January 7, 2013, as evidenced by the April 2006 sleep study and the Veteran’s spouse’s statement, is insufficient to award an earlier effective date. Moreover, as noted above, 38 C.F.R. § 3.1(p) defines “claim” as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement” to benefits, and the presence of a disability without evidence of an intent to seek service connection for it does not trigger a duty for VA to assist. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57; KL, 5 Vet. App. at 208; and Crawford, 5 Vet. App. at 35. Thus, describing symptoms to a VA examiner during examination for a different claim cannot be construed as a claim, nor does it create a duty to assist. Without written notice to VBA of an intent to seek service connection or belief in entitlement, the duty to assist cannot attach. While VA is required to liberally construe a veteran’s claims and pleadings, the prerequisite is the existence of a claim, which cannot be found in the record with regard to sleep apnea prior to January 7, 2013. Finally, the Veteran’s representative’s reliance on Delisio is misplaced. The United States Court of Appeals for Veterans Claims (Court) addressed the circumstances where a veteran seeks service connection for a disability, and information reasonably indicates that the claimed disability is secondary to an underlying disability that may be associated with service. It held that the veteran need not file a separate claim for benefits for the causal disability, and the effective date of benefits for the causal disability can be as early as the date of the pending claim for the secondary disability. The Court clarified that it did not hold that a claim for benefits reasonably encompasses a claim for unclaimed disabilities that arise as a result of the disability for which benefits are sought. Delisio, 25 Vet. App. 45. Here, the Veteran’s OSA was granted as associated with bilateral hearing loss after the grant of service connection for hearing loss was effective in August 2011. Thus, the reasoning of Delisio would apply only if the Veteran sought service connection for sleep apnea first, without having been service connected for bilateral hearing loss. Moreover, the Court specifically indicated that circumstances such as the Veteran’s, where an unclaimed disability (here, the OSA was not claimed until January 2013) is secondary to the claimed disability (hearing loss claimed in August 2011), the benefits sought with the hearing loss claim did not encompass a claim for sleep apnea, the unclaimed disability. In sum, the claim for entitlement to an effective date earlier than January 7, 2013 for grant of service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.