Citation Nr: A26020249 Decision Date: 03/05/26 Archive Date: 03/05/26 DOCKET NO. 251001-593463 DATE: March 5, 2026 ORDER Entitlement to an effective date earlier than August 10, 2022, for the award of service connection for asthma is denied. FINDING OF FACT The Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which directed the Department of Veterans Affairs (VA) to provide examinations for veterans who participated in toxic exposure risk activities during their active service and directed further that such examinations must consider the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran, became effective on August 10, 2022. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than August 10, 2022, for the grant of service connection for asthma have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1989 to July 1993. In October 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2023 rating decision. In February 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2023 rating decision. In the October 2025 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 October 2023 AOJ decision, which addressed a claim for a respiratory disability, and was subsequently subject to higher-level review. 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an effective date prior to August 10, 2022, for service connection of asthma. The Veteran contends that service connection for asthma is warranted at least as early as May 19, 2022, the date of his reopened claim for service connection. He additionally contends that he submitted new evidence, in the form of a lay statement stating that he experienced fires, fights, accidents, and mishaps while aboard the USS Nimitz CVN-68 in February 1993, within 60 days following a February 2017 Statement of the Case (SOC) concerning his initial 2014 claim for service connection for a respiratory condition, which was later changed to a claim for obstructive sleep apnea. According to the November 2025 brief, the Veteran argues that because he submitted a March 2017 statement within 60 days of the initial SOC, the initial SOC was not final, and VA must issue a Supplemental Statement of the Case addressing the statement as new evidence. Generally, the effective date of service connection based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception is that the day following the date of separation from active service, or the date entitlement arose controls if the claim is received within one year after separation from active service; otherwise, the general rule applies. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 38 C.F.R. § 3.155(b) provides that if a claimant or other person acting on their behalf submits an intent to file a claim to VA and a complete application form prescribed by the Secretary is received within one year of the receipt of the intent to file a claim, the date of receipt of the intent to file a claim will be considered the date of receipt of claim. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). Except as specifically provided, the effective date of a rating and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400 (r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332, 340 (1995). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400 (q). If new and material evidence other than service department records is received within the appeal period or prior to appellate decision, the effective date will be as though the former decision had not been rendered. Submission of new and material evidence within a year of a rating decision delays finality of the rating decision until such time as readjudication of the claim with consideration of that evidence occurs and that decision becomes final. 38 C.F.R. § 3.156(b). Applicable regulations provide that if new and material evidence was received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Under the "legacy" system, an appeal consists of a timely-filed Notice of Disagreement (NOD) in writing, and, after a SOC has been furnished, a timely-filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1102. When a timely, valid NOD is filed in response to a rating decision, that rating decision cannot be considered a final decision; instead, the claim will remain pending until VA re-adjudicates it in a SOC. Then, a VA Form 9 or substantive appeal must be filed either (1) within 60 days from the date on which the AOJ mailed the SOC to the Veteran; or (2) within the balance of the one-year period following the date of mailing of the rating decision, whichever period ends later. See 38 C.F.R. §§ 19.32, 19.52(b). If a claimant does not file a timely VA Form 9 or substantive appeal, then the underlying rating decision becomes final. 38 C.F.R. § 19.32. Whether a substantive appeal has been timely filed is an appealable issue. 38 C.F.R. § 19.34. The Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 45 (2009). Here, VA has not waived this requirement for a substantive appeal and the Board declines to do so as this case is distinguishable from the circumstance in Percy. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA in effect had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Here, unlike in Percy, VA never received a substantive appeal from the Veteran and did not treat the claim as if it were on appeal at any time after the issuance of the February 2017 SOC. Further, the issue of a "respiratory condition" addressed by the February 2017 SOC was later recharacterized as his claim for sleep apnea, as the Veteran never actually submitted a claim for asthma, and cannot be considered to have been on appeal at the time of the February 2017 SOC because the condition was not diagnosed at that time; the earliest documentation for a diagnosis of asthma in the claims file is 2019. The Board acknowledges that the Veteran has a pending claim for obstructive sleep apnea that is not currently on appeal. Under the PACT Act, service connection may be established for a covered veteran with a disease associated with exposure to burn pits and other toxins. Under this Act, any enumerated disease becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, air, or space service even though there is no record of such disease during the period of such service. Asthma is an enumerated disease for which presumptive service connection is available under the PACT Act. See PACT Act of 2022, sec. 406, § 1120. The Veteran qualifies as a covered Veteran under the PACT Act. In the February 2025 Higher-Level Review decision, the AOJ determined that while not specifically claimed, asthma was within the scope of the claim for a respiratory condition, and diagnosed asthma is presumed to be associated with the Veteran's participation in a toxic exposure risk activity (TERA), which VA conceded. The Board has considered whether service connection could be granted without reliance on the PACT Act, in order to provide the Veteran with a more favorable effective date. However, service connection without reliance on the presumptive provision of the PACT Act is unavailable in this case because there is no competent medical nexus evidence concerning a diagnosed asthma condition. Specifically, the August 2023 examination report listed asthma as a diagnosis, but the accompanying medical nexus opinion addressed only obstructive sleep apnea and found no positive nexus to service, direct or otherwise. Because the only competent medical nexus evidence even nearly related to the claim of asthma of record is against the claim, service connection on a non-presumptive basis, i.e., without resort to the presumptive provision of the PACT Act, is not available in this case. Given this, the Board finds that the Veteran's asthma is related to his service under the presumption of service connection for certain diseases associated with exposure to burn pits and other toxins pursuant to the PACT Act. 38 U.S.C. § 1120. Accordingly, entitlement to an effective date prior to August 10, 2022, is not warranted. The appeal is denied. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. E. Lee 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.