Citation Nr: A25035707 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220622-254176 DATE: April 17, 2025 ORDER Entitlement to an effective date of April 17, 2014, for a rating of 50 percent for post-traumatic stress disorder (PTSD) is granted. Service connection for sleep apnea is dismissed. FINDINGS OF FACT 1. The April 17, 2014, treatment record pertaining to the Veteran's PTSD was a pending, unadjudicated claim for an increased rating per 38 C.F.R. § 3.157(a)-(b). 2. In the April 2024 decision, the Board found CUE in the March 2013 Board decision and found that service connection for sleep apnea is warranted, effective September 9, 2008 (the original date of claim). CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of April 17, 2014, for a rating of 50 percent for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 2. The criteria for dismissal of service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1988 to December 1991, from August 1992 to August 1995, from February 2003 to March 2004, from March 2006 to April 2007, and from June 2007 to April 2008, with service in Iraq and Kuwait. In the June 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review in June 2021. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an effective date of April 17, 2014, for a rating of 50 percent for PTSD. The Veteran asserts that an effective date prior to October 6, 2019, for a rating of 50 percent for his service-connected PTSD is warranted. By way of background, service connection for PTSD with a 30 percent disability rating, effective September 9, 2008, was granted in a December 2011 rating decision. In an April 2020 rating decision, the RO granted a 50 percent rating for PTSD, effective October 6, 2019. This effective date coincides with the date VA received the Veteran's intent to file a claim. The Veteran argues that the prior December 2011 rating decision (notification letter received in January 2012) never closed due to VA medical treatment records received during the appeal period per 38 C.F.R. § 3.156(b). Alternatively, the Veteran argues that VA treatment records constitute an informal claim for increase per 38 C.F.R. § 3.157(b). The laws for effective dates are clear. Specifically, except otherwise provided, the effective date of an evaluation and award of compensation 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). After the December 2011 rating decision was issued, the Veteran was notified of the decision in January 2012 but did not file a formal appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Further, during the appellate period following the decision medical treatment records were associated with the file. However, the evidence added during the appellate period was not material, as it did not relate to the severity of the Veteran's service-connected PTSD. The treatment records added contained no medical opinions or lay reports discussing the Veteran's PTSD. As the submissions are not material, the December 2011 rating decision was not prevented from becoming final. 38 C.F.R. § 3.156(b). Under the law at the time of the December 2011 rating decision, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims or claims for increases, reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b) (2014) (repealed effective March 24, 2015). As in effect prior to March 24, 2015, 38 C.F.R. § 3.157(a) notes that a report of examination or hospitalization will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Prior to March 24, 2015, 38 C.F.R. § 3.157(b)(1)-(3) indicates that, once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by VA or uniformed services, evidence from a private physician or layman, and/or evidence from a state or other institution will be accepted as an informal claim for increased benefits. To qualify as an informal claim under 38 C.F.R. § 3.157(b)(1), as it existed before March 2015, the VA report in question must (1) identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013); Massie, 724 F.3d at 1328-29. Unlike other informal claims, there is no requirement that an intent to file a claim be shown under § 3.157. Further, the provisions of 38 C.F.R. § 3.400(o), whereby a rating increase can be granted up to one year prior to the date of claim, also apply to claims submitted under § 3.157. Massie, 25 Vet. App. at 132. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In this regard, medical treatment records were associated with the Veteran's file in July 2019. On April 17, 2014, primary care outpatient note, shows that the Veteran reported insomnia, waking at night thinking he has heard noises, has been more vigilant/alert in recent weeks, and wakes up diaphoretic at night. During the examination, the Veteran's medication profile was reviewed and updated, and the Veteran was referred for counseling. An addendum was added on May 23, 2014, after the Veteran's doctor called to discuss medication. During the conversation, the Veteran noted that his PTSD symptoms are worsening. He reported that his insomnia continues, and he is more irritable to the point that it is affecting his work. Here, the Board notes that the April 2014 and May 2014 treatment records are specific, dated medical examinations, therefore satisfying the first criterion of 38 C.F.R. § 3.157(b)(1). As such, and because in its role as a finder of fact the Board concludes that there was a worsening of the Veteran's symptoms was discussed, the Board finds that pursuant to 38 C.F.R. § 3.157(b)(1), the April 17, 2014, VA treatment record indicates that the PTSD worsened since the last time it was evaluated, satisfying the second criterion. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013); Massie, 724 F.3d at 1328-29. Therefore, the Board finds that the April 17, 2014, VA treatment record constitutes an informal claim for an increased disability rating under 38 C.F.R. § 3.157. As stated above, in the case of claims for earlier effective dates for awards of increased compensation, three possible effective dates may be assigned: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (the date entitlement arose) (38 C.F.R. §3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. §3.400(o)(2)); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (38 C.F.R. §3.400(o)(2)). The Board has reviewed the Veteran's record and finds that the April 17, 2014, VA treatment record constitutes an informal claim for an increased disability rating for the PTSD and is the earliest effective date available even when considering if an increase in disability precedes the claim by a year or less. 38 C.F.R. § 3.157(b)(1). Therefore, an earlier effective date of April 17, 2014, but no earlier, for the increased 50 percent disability rating for PTSD is granted. 2. Service connection for sleep apnea. In a separate April 2025 decision, the Board determined that there was CUE in the March 2013 Board decision in which the Board denied service connection for obstructive sleep apnea. The Board concluded that, absent this clear error, service connection for obstructive sleep apnea would have been granted. Consequently, the Veteran's motion to revise the March 2013 Board decision to reflect a grant of service connection for sleep apnea, effective September 9, 2008 (the date of claim), was warranted. As the Veteran's claim for service connection for obstructive sleep apnea as granted, the total grant of benefits sought on appeal has been awarded so there remains no case or controversy. In light of the above, because there is no case or controversy currently before the Board, this issue must be dismissed. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leigh, Sara 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.