Citation Nr: A25027872 Decision Date: 03/25/25 Archive Date: 03/25/25 DOCKET NO. 240310-424262 DATE: March 25, 2025 ORDER Entitlement to service connection for insomnia is dismissed. Entitlement to an effective date of January 23, 2018, but no earlier, for the grant of service connection for posttraumatic stress disorder (PTSD) (also claimed as anxiety condition, major depression and psychosis), to include insomnia, (hereinafter "PTSD") is granted. FINDINGS OF FACT 1. Service connection for insomnia was effectively granted as a symptom of PTSD in a February 2024 rating decision. 2. The Veteran filed his original claim for service connection for PTSD on October 2, 2018, within one year from his January 22, 2018, separation from service. 3. The Veteran continuously pursued his claim since October 2, 2018. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for entitlement to service connection of insomnia are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 2. The criteria for entitlement to an effective date of January 23, 2018, but no earlier, for the grant of service connection for PTSD are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 2014 to January 2018. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2023 (insomnia) and February 2024 (PTSD) decisions by the Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In March 2024, the Veteran filed a VA Form 10182, notice of disagreement (NOD), and elected direct review of the AOJ decisions by the Board. 38 C.F.R. § 20.202. Under direct review, the Board considers the same record as that before the AOJ at the time of the decisions on appeal. 38 C.F.R. § 20.301. Insomnia In a June 2023 rating decision, the AOJ denied service connection for insomnia. Treatment records at the time showed no diagnosis of insomnia, nor were sleep problems shown in service. At a January 2024 VA examination, the Veteran was diagnosed with PTSD and schizoaffective disorder, depressive type. He was not diagnosed with insomnia or any other sleep disorder, but chronic sleep impairment was noted as a symptom of his mental health problems. In a February 2024 rating decision, the AOJ granted service connection for PTSD, and assigned a schedular 100 percent rating, based in part on "chronic sleep impairment." The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. Here, as the February 2024 rating decision granted service connection for PTSD and took into consideration the Veteran's symptoms of sleep problems, there no longer remains case or controversy with respect to the insomnia claim. No independent sleep disorder is diagnosed. Therefore, the Board lacks jurisdiction over the issue because it has been granted and is rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.104. Accordingly, dismissal is warranted. Effective Date for PTSD In February 2024, the AOJ granted service connection for PTSD effective October 2, 2023. The Veteran contends he is entitled to an earlier effective date of January 23, 2018, the day following his separation from service. The Board agrees. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p). Date of receipt means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). There are specific provisions for claims regarding revision of a decision based on a supplemental claim and continuously pursued claims. At any time after VA issues notice of a decision on an issue within a claim, a claimant may file a supplemental claim. 38 C.F.R. § 3.2500(a)(2). If a claimant continuously pursues an issue by timely filing in succession a supplemental claim, or other review options including a request a higher-level review, an appeal to the Board, or a notice of appeal to the Court of Appeals for Veterans Claims, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later. Continuous pursuit requires any review option be filed within one year of the issuance of the decision with which the Veteran disagrees. 38 C.F.R. § 3.2500(h)(1). However, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issues a notice of a decision, or the Board issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). The United States Court of Appeals for Veterans Claims (Court) in Calhoun v. McDonough, held a continuously pursued claim under the AMA is not final, thus allowing for an effective date of an award as early as the date of the first claim in a continuously pursued claim. Calhoun v. McDonough, No. 21-6125 (U.S. Vet. App. January 9, 2024). On October 18, 2018, the Veteran filed a VA Form 21-526 Fully Developed claim, within the one year period following his discharge from service. The Veteran claimed service connection for anxiety, depression, a personality disorder, a back injury, a right shoulder injury, hearing loss and tinnitus. The Veteran's service treatment records (STRs) document his in service treatment for anxiety and severe major depressive disorder with psychotic features. The Veteran was scheduled for a VA mental disorders examinations in November 2018. The Veteran requested cancellation of the examinations because he was unavailable until December 2018 due to work. The AOJ did not reschedule the Veteran despite this notice. In January 2019, the AOJ issued a rating decision which denied service connection for a personality disorder, also claimed as anxiety and depression because the Veteran failed to report for a VA examination. In March 2019, the Veteran called VA to reschedule his VA examination that was originally scheduled on November 15, 2018. The Veteran reported that he missed the examination because he had to work and stated that he would make the rescheduled examination. This telephone conversation was documented and associated with the Veteran's file. In May 2019, correspondence was mailed to the Veteran informing him that because he indicated that he would attend a rescheduled examination, he needed to submit a VA Form 20-0995, Decision Review Request: Supplemental Claim as this is considered new and relevant evidence. The correspondence was returned to VA as undeliverable, as the forwarding order time had expired. The forwarding address was noted on the label affixed to the returned mail. However, review of the file reveals VA did not send this correspondence informing the Veteran of his need to file a VA Form 20-0995 to the forwarding address. This is in violation of VA's duty to supply the required form on request, under 38 C.F.R. § 3.150(a), and to notify the Veteran of the information required to complete his claim, under 38 C.F.R. § 3.155(c). This effectively tolled the one year period for the Veteran to respond to VA and complete his claim. In March 2023, the Veteran filed a VA Form 21-526, Fully Developed Claim, seeking service connection for insomnia, among other disabilities. In June 2023, the AOJ issued a rating decision that denied entitlement to service connection for insomnia. Under Clemons v. Shinseki, 23 Vet. App. 1, 5, (2009), the claim for service connection for one acquired psychiatric condition must be considered a claim for service connection for all potentially diagnosed conditions. Accordingly, the June 2023 filing must also be accepted as a claim for PTSD. Indeed, as is discussed above, the claimed sleep disturbances have now actually been service-connected as part of PTSD. The AOJ also expanded the October 2, 2023, claim of service connection for anxiety and depression to include PTSD. The Board finds that the Veteran continuously pursued his claims for service connection for an acquired psychiatric disorder, eventually identified as PTSD. A review of the record establishes that, within one year of the January 2019 decision denying his original claim, the Veteran contacted the AOJ and provided good cause for his failure to report to scheduled VA examinations. The AOJ attempted to send correspondence to the Veteran, informing him that he needed to complete a supplemental claims form in order to have his VA examinations rescheduled. However, the correspondence was returned to the AOJ as undeliverable. After receiving the returned mail, the AOJ made no further attempts to contact the Veteran and/or to re-send the VA Form 20-0995, tolling the time for the Veteran to respond with a complete claim form. Accordingly, the Veteran has continuously pursued a claim of service-connection for an acquired psychiatric disorder since his original October 2018 filing. He responded to the January 2019 denial in a timely manner, and the burden shifted to VA to fulfill its duty to assist the Veteran in completing his claim. The March 2023 claim form must therefore be considered to have been filed in connection with that earlier filing. The AOJ erred in assigning an effective date of October 2, 2023 for the award of service connection for PTSD. The evidence of records weighs in favor of an effective date of January 23, 2018, for PTSD, the day following separation from service. The Veteran filed his original claim within a year of separation, and continually pursued such since. Accordingly, an effective date of January 23, 2018, but no earlier, for the award of service connection for PTSD is granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.