Citation Nr: 21027956 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-51 801 DATE: May 7, 2021 ORDER Entitlement to an effective date earlier than August 19, 2014, for the award of service connection for obstructive sleep apnea is denied. FINDING OF FACT The first date the VA received a formal or informal claim for entitlement to service connection for a sleep disorder was August 19, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than November 12, 2014, for the award of service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In March 2015, the AOJ issued a rating decision that granted service connection for obstructive sleep apnea. The Veteran was assigned a 50 percent disability rating under Diagnostic Code (DC) 6847 from August 19, 2014. The Veteran timely disagreed in a December 2015 Notice of Disagreement (NOD) and perfected his appeal in an October 2017 VA Form 9. In February 2019, the Veteran's case was returned to the Board. Then in February 2021, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file. Entitlement to an effective date earlier than August 19, 2014, for the award of service connection for obstructive sleep apnea. The Veteran contends an earlier effective date is warranted. See October 2017 VA Form 9. He contends he had sleep problems during service and, if he had known he could get a sleep study back then, he may have been diagnosed with obstructive sleep apnea before he filed his August 19, 2014, sleep apnea claim. Id. The question for the Board is whether the evidence supports the grant of an effective date that is earlier than August 19, 2014. For the reasons discussed below, the Board concludes an effective date earlier than August 19, 2014, is not warranted. Generally, the effective date of an award based on an initial claim is assigned based on the facts found, but will not be earlier than the date the VA received the entitlement claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless there is some exception (and there is not one here), an effective date cannot be awarded before the date of the filing of a claim. Id. So, identification of the earliest nonfinal claim for benefits is important in determining the appropriate effective date. At the time the Veteran had filed a claim, in August 2014, the VA recognized informal claims. The elements of an informal claim are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing[.]" Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019). Although "a claimant's identification of the benefits sought does not require any technical precision," the Board is not required to "'conjure up issues that were not raised by the Veteran. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) Beginning with the evidence of record, it shows the Veteran reported sleep problems during service. The record reflects at least five reports from March 2001 through February 2002. Those service treatment records (STRs) also note diagnoses of sleep deficit, insomnia, and situational insomnia. However, the STRs do not contain a diagnosis of sleep apnea. Also, none of the records indicate a sleep study was performed. See March 9, 2001; April 18, 2001; January 16, 2002; January 22, 2002; and February 5, 2002, STRs. The record also reflects the Veteran separated from service in June 30, 2005, and the date the VA first received a claim for disability compensation is July 20, 2006. The Veteran sought compensation for sarcoidosis, syncope, and chronic back pain. His statement associated with the claim asserted his sarcoidosis is in remission and his syncope is being managed by medication. He did not mention sleep problems in his statement. See October 11, 2006, Statement in Support of Claim at 1. In August 2007, the Veteran underwent disability examinations for syncope, sarcoidosis, and back pain. The examinations included an evaluation for respiratory and neurological conditions. During the examination for a neurological condition, to include syncope, the Veteran reported he felt so well that he did not see a need to visit a doctor over the past three years, except to refill his medication(s). See Compensation and Pension (C&P) Exam Report at 2. The examiner did not indicate any signs or symptoms of a sleep problem. Id. During the examination for respiratory conditions, to include sarcoidosis, the Veteran discussed his ability work and perform daily activities. He reiterated he did not need to see a doctor for at least three years. Id. at 5. The examiner did not indicate any signs or symptoms of a sleep problem. Id. In October 2007, the Veteran was granted service connection for syncope, sarcoidosis, and a back disability. There is no record of any other formal entitlement claims received by the VA until August 19, 2014, when he filed his sleep apnea claim. The AOJ granted service connection for obstructive sleep apnea in the March 2015 rating decision on appeal. In February 2021, a Board hearing was conducted for the Veteran's earlier effective date claim. The Veteran testified that he had sleep problems as early as 2001, while still in service. He testified that, during service, he was told by his wife and daughter he stopped breathing during his sleep. He added that he complained of sleep problems and prescribed Ambien before separating from service. Also, if he knew he could get a sleep study earlier than he did, he would have taken steps to get one. See Transcript at 3, 5, 6. The Veteran was asked if he had reported observing sleep problems during his August 2007 VA disability examination for syncope and sarcoidosis. The Veteran could not recall. Id. at 3. Turning to the Veteran's claim for an earlier effective date, the first question is whether there were any open claims for service-connection for obstructive sleep apnea before he filed his August 19, 2014, claim. A search of the record shows that, before August 19, 2014, the VA did not receive any formal applications for disability compensation that listed sleep apnea or any other sleep disorder. Accordingly, the Board finds the record does not show any open sleep disorder claims stemming from a formal application for benefits before the VA received the Veteran's August 19, 2014, sleep apnea claim. Since the Veteran filed his formal claim during a time the VA recognized informal claims for disability compensation, the next issue is whether the record suggests an informal sleep apnea claim was made before August 19, 2014. Even though the evidence that existed before August 19, 2014, includes STRs that note diagnoses of sleep conditions, like insomnia, the Board finds they do not constitute an informal claim. A review of those records did not show signs that he intended to apply for benefits, such as mark-ups indicating those diagnoses should be given special attention. The Board finds that even though those records constitute evidence of sleeping difficulties during service, they do not show he intended to file a claim a sleep disorder claim, to include obstructive sleep apnea. The Board's conclusion is supported by the lack of any reference to sleep problems in the Veteran's July 2006 syncope, sarcoidosis, and back disability claim. Also, his October 2006 statement does not reference any sleep problems such as sleep apnea. The July 2006 entitlement claim specifically asked that the Veteran list the disabilities he wanted to VA disability compensation for. Since he listed another condition without a clear medical diagnosis, like chronic back pain, the Board finds it is likely he would have provided a general description of a sleep disorder too, if he desired compensation at that time. Since he did not, it suggests he did not want to pursue a sleep disorder claim at that time. Similarly, his October 2006 statement was intended to describe provide lay observations of symptoms he believed warranted special attention by the VA. Considering he did not mention any sleep problems, it suggests he did not want to pursue a sleep disorder claim at that time. In this case, the evidence does not support finding any intent to on the Veteran's part to seek disability benefits for a sleep disorder before the VA received his August 19, 2014, sleep apnea claim. Thus, the Board finds there were no open formal or informal claims before that date. His August 19, 2014, sleep apnea claim was the first claim for service connection for obstructive sleep apna. That is, it was his initial claim for a sleep disorder. Since the Board has determined that August 19, 2014, is the date the VA first received a formal or informal sleep disorder claim, the next question is whether an effective date before that time is warranted. Although the record reflects the Veteran's July 2006 syncope, sarcoidosis, and back disability claim was received within the year he left service, the Board notes it is not the date of his first sleep apnea claim. Generally, the effective date of an original claim could be no earlier than the date of claim. 38 U.S.C. § 5110(a). But, if the VA receives a claim within one year after separating from service, the effective date will be the day after the Veteran separated from service. 38 C.F.R. § 3.400(b)(2). Here, the July 2006 claim did not list sleep apnea among the disabilities he wanted compensation for. Also, the Board has found the evidence associated with that claim did not raise an informal claim for service connection claim for sleep apnea. Thus, the July 2006 entitlement claim did not constitute a sleep apnea claim. In this case, the effective date can be no earlier than August 19, 2014. The Board has found the Veteran's initial sleep apnea claim was received by the VA on August 19, 2014, which is many years after he left service. Since he has not established an exception to the general rule that the effective date is the date of the initial claim, the Board concludes the effective date cannot be earlier than August 19, 2014. Even if he was diagnosed or manifested while in service, the effective date cannot be earlier than the filing of a sleep disability claimwhich is August 19, 2014. In sum, the record reflects the first date the VA became aware of the Veteran's intent to apply for benefits for his (now service-connected) obstructive sleep apnea was on August 19, 2014. Since that is the date of his initial claim and no earlier date can be assigned, his appeal for an effective date before August 19, 2014, must be denied. The Board regrets a more favorable decision could not be reached in the Veteran's case. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.