Citation Nr: 21015835 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-05 944 DATE: March 18, 2021 ORDER Entitlement to an earlier effective date than March 10, 2016, for service connection for obstructive sleep apnea is denied. FINDING OF FACT VA first received an intent to file a claim of entitlement to service connection for obstructive sleep apnea on March 10, 2016. In May 2016, VA established entitlement to service connection for obstructive sleep apnea and assigned a 50 percent rating, effective March 10, 2016, the date the intent to file a claim was first received by VA. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date than March 10, 2016, for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1987 to June 1991, from November 1994 to June 1996, and from December 1997 to February 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran appeared at a hearing before a Veterans Law Judge. A copy of the transcript is of record. 1. Entitlement to an earlier effective date than March 10, 2016, for service connection for obstructive sleep apnea Generally, the effective date for service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or 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 date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400(b)(2). A claim is 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. If a formal claim is received after one year of its receipt, then the effective date will be the date of VA’s receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. The effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). VA amended regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by VA, regardless of the type of claim or posture in which the claim arises. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. 38 C.F.R. § 3.1. The amended regulations apply only to claims filed on or after March 24, 2015, as is the case here. Thus, prior to March 24, 2015, the standardized forms were not required. The Veteran contends he is entitled to an earlier effective date than March 10, 2016, for service connection for obstructive sleep apnea. The Veteran filed an intent to file a claim for compensation form on March 10, 2016. Subsequently, on March 29, 2016, the Veteran filed a claim for service-connection for obstructive sleep apnea. As a result of that claim filing, in May 2016, VA established entitlement to service connection for obstructive sleep apnea and assigned a 50 percent rating, effective March 10, 2016. VA assigned March 10, 2016 as the effective date as that was the date the intent to file a claim form was first received by VA. The Board finds that the record does not show any communication that could be interpreted as a claim for benefits for obstructive sleep apnea prior to the receipt of the March 10, 2016 intent to file claim. Therefore, an earlier effective date prior to March 10, 2016, is not warranted as that is the date the claim was first filed. The Board notes that while the Veteran has claimed entitlement to an earlier effective date for service connection for obstructive sleep apnea, the Veteran and representative have not provided evidence showing that it is at least as likely as not that any earlier effective date is warranted. They contend that an earlier effective date in February 1999 is warranted because that is the date of the Veteran’s separation from active duty service. The Veteran asserts that he separated from service as a result of sleep apnea and was granted service connection for obstructive sleep apnea while in service. The record shows that the Veteran was medically separated from service on February 13, 1999, because of obstructive sleep apnea. Subsequently, the Veteran established entitlement to an evaluation for vocational rehabilitation under 38 U.S.C. Chapter 31 due to obstructive sleep apnea. However, the Board notes that entitlement to an evaluation for vocational rehabilitation is not considered a grant of service connection for compensation purposes, nor does it constitute a valid application for disability compensation and related compensation benefits on VA Form 21- 526EZ. Therefore, the Veteran is not entitled to an effective date earlier than when he first filed a claim for compensation. The earlier claim for vocational rehabilitation was not a claim for compensation. The Veteran has provided no evidence of any earlier claim filing. The Veteran did not submit a claim for service connection for obstructive sleep apnea until March 10, 2016. Because a claim of service connection was not received within one year of the Veteran's separation from active duty service, the effective date cannot be the day following either of his separations from active duty service, or the first date of an obstructive sleep apnea diagnosis. 38 C.F.R. § 3.400(b)(2)(i). The Board finds that the record does not show any evidence or statement prior to March 10, 2016, relating to any claim for service connection for any sleep disability. The Board notes that there is evidence that the Veteran was diagnosed with obstructive sleep apnea while in-service. However, the record does not show that the Veteran filed a claim for service connection for obstructive sleep apnea that was received by VA prior to March 10, 2016. Accordingly, the Board finds that the effective date for service connection for obstructive sleep apnea can be no earlier than the date the intent to file a claim was first received by VA, March 10, 2016. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date and the claim is denied. 38 C.F.R. § 3.158(a); Sabonis v. West, 6 Vet. App. 426 (1994); 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.