Case A26039370

Summary

The veteran, who served from July 1976 to July 1979, appeals the denial of an earlier effective date for service connection for sleep apnea. The veteran initially filed a claim for sleep apnea on June 30, 2020. This claim was denied by the RO in September 2021 and became final as it was not appealed within the one-year period. More than a year later, the veteran filed an Intent to File on December 5, 2022, followed by a supplemental claim on December 9, 2022. The RO granted service connection for sleep apnea with an effective date of December 5, 2022, based on the Intent to File. The veteran's appeal to the Board challenges this effective date, seeking an earlier date. The Board reviewed the relevant statutes, including 38 U.S.C. § 5110 regarding effective dates, and noted the finality of the prior September 2021 denial. The Board found that the current claim for an earlier effective date was precluded by law, as the prior claim stream became final and the current claim was not received until December 2022. The Board affirmed the RO's decision, denying an earlier effective date prior to December 5, 2022, as the evidence persuasively favored the RO's determination and the benefit-of-the-doubt rule did not apply.

Rationale

Prior claim for sleep apnea became final after September 2021 denial and no appeal.; Current claim for earlier effective date received December 2022.; Governing law (38 U.S.C. § 5110(a)) states effective date cannot be earlier than receipt of application.

Full Decision Text

Citation Nr: A26039370
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 231215-401867
DATE: April 28, 2026

ISSUE

Entitlement to an earlier effective date prior to December 5, 2022 for service connection for sleep apnea

ORDER

Entitlement to an earlier effective date prior to December 5, 2022 for service connection for sleep apnea is denied.

FINDINGS OF FACT

1. The Veteran filed an original claim for service connection for sleep apnea, received on June 30, 2020.

2. A September 2021 rating decision denied service connection for sleep apnea.  The Veteran did not file a supplemental claim or Notice of Disagreement (NOD), and that decision became final.

3. More than one year later, the Veteran filed an Intent to File received by VA on December 5, 2022.

4. On December 9, 2022 the Veteran filed a supplemental claim for service connection for sleep apnea.

5. The October 2023 rating decision granted service connection for sleep apnea with an effective date of the Intent to File, December 5, 2022.

6. Entitlement to service connection for sleep apnea arose on December 5, 2022, the date of receipt of the Veteran's Intent to File followed shortly thereafter by a December 9, 2022 supplemental claim.  

CONCLUSION OF LAW

There is no legal entitlement to an effective date prior to December 5, 2022 for the grant of service connection for sleep apnea.  38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. § 3.1, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from July 1976 to July 1979. 

This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2023 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The rating decision considered the evidence of record on that date.  The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review docket for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ).  In the AMA decision, the Agency of Original Jurisdiction (AOJ) made binding favorable findings.  See 38 C.F.R. § 3.104(c).

As a threshold matter, this claim on appeal has been variously characterized as due to clear and unmistakable error (CUE).   CUE is a specific type of allegation.  For the instant appeal, there is not a collateral attack on a now final rating decision because there has been continuous pursuit since the grant of service connection.  In other words there is no prior final denial.  The issue of the correct date for entitlement to service connection remains, as discussed below in the context of an earlier effective date claim.  There is no prejudice to the Veteran in this regard.  The Veteran maintains that he has continuously pursued the claim since 2020.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301.  The Veteran declined a Board hearing.

The April 2024 Informal Hearing Presentation (IHP) requests full consideration of the appeal but does not discuss one piece of procedural history in asserting that an earlier effective date is warranted.  There is no basis suggested for the Board to revise the finding already reached by the RO.  The Board still reviewed all of the evidence, the relevant components of which are discussed in detail below.

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3
 April 2024 Informal Hearing Presentation (IHP) requests full consideration of the appeal but does not discuss one piece of procedural history in asserting that an earlier effective date is warranted.  There is no basis suggested for the Board to revise the finding already reached by the RO.  The Board still reviewed all of the evidence, the relevant components of which are discussed in detail below.

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to an earlier effective date prior to December 5, 2022 for service connection for sleep apnea

Given the procedural nature of the issue on appeal, a review of the relevant governing statutes is instructive.

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110 (a).

Subsection (b) provides:

(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. 

(2) (A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 

(3) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C. § 5110 (b).

Claim means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.  38 C.F.R. § 3.1 (p).

In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The Board observes that the VA adjudication system is a non-adversarial, pro-claimant system wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir.
 of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The Board observes that the VA adjudication system is a non-adversarial, pro-claimant system wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF. v. Derwinski, 1 Vet. App. 324 (1991).  The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Next, a review of the procedural and rating history is informative.

The Veteran filed an original claim for service connection for sleep apnea on June 30, 2020.

Next, a September 2021 rating decision denied service connection for sleep apnea.  The Veteran did not file a supplemental claim or Notice of Disagreement (NOD), and that decision became final.

More than one year passed.  The Veteran filed an Intent to File received by VA on December 5, 2022.

This was followed by a supplemental claim for service connection for sleep apnea received on December 9, 2022.

Later, the October 2023 rating decision granted service connection for sleep apnea with an effective date of the Intent to File, December 5, 2022.

Additional procedural records are substantially the same.

The Veteran through his representative submitted an April 2024 Informal Hearing Presentation (IHP).  They do not explain how the appeal was continuously pursued since 2020 or reconcile the finality matter noted above.  They do not suggest any other correct date of claim.

The Veteran seeks an earlier effective date for the grant of service connection for sleep apnea.  As described below, we find that this is precluded under the relevant statutory law.

First, prior to December 5, 2022 the record does not show any pending claims for service connection for sleep apnea, or one that could be construed as such.  In addition, the previous denial of service connection in September 2021 became final when there was no new evidence received, no continuous pursuit, no supplemental claim, and no Notice of Disagreement (NOD) within one year.  Thus the June 30, 2020 original claim cannot serve as the basis for assignment of service connection benefits from the original date of claim.  In short, this earlier claim stream became final.

Second, the RO already assigned a favorable effective date of December 5, 2022.  This is the date the Veteran filed an intent to file a claim.  This is earlier than than the supplemental claim for sleep apnea filed afterward.  

As referenced above, the relevant law essentially shows that the effective date of the claim shall not be earlier than the date of receipt of application therefor.  See 38 U.S.C. § 5110 (a).  Indeed, the Veteran has received treatment and was afforded a March 2023 VA examination surrounding the sleep apnea claim.  Nevertheless, VA is bound by the governing regulation, notably using the unambiguous word shall.  Unfortunately, however, the Veteran's earlier claim for sleep apnea became final, and the current pending claim for service connection for sleep apnea was not received until December 9, 2022.  The related intent to file days earlier on December 5, 2022.  This is the earliest date which VA may consider.  See U.S.C. § 5110 (a).  

Once again, the Board notes that the RO has already liberally construed the date of application to be December 5, 2022 as opposed to later date of the supplemental claim.  The Board acknowledges the Veteran's sincere belief that he is entitled to an earlier effective date. 

There are no earlier
 the unambiguous word shall.  Unfortunately, however, the Veteran's earlier claim for sleep apnea became final, and the current pending claim for service connection for sleep apnea was not received until December 9, 2022.  The related intent to file days earlier on December 5, 2022.  This is the earliest date which VA may consider.  See U.S.C. § 5110 (a).  

Once again, the Board notes that the RO has already liberally construed the date of application to be December 5, 2022 as opposed to later date of the supplemental claim.  The Board acknowledges the Veteran's sincere belief that he is entitled to an earlier effective date. 

There are no earlier documents prior to December 5, 2022 that could be construed as an intent to file.  Prior to this the September 2021 rating decision was unappealed and became final.  No earlier claim for a sleep apnea was raised by the record implicitly or explicitly.  

In reaching this decision the Board has considered all of the Veteran's contentions.  However, given the facts of the case, the law governing the assigned effective date is clear: the effective date of an award based on an original claim...shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110 (a).  Service connection for sleep apnea was eventually granted following the Veteran's December 9, 2022 supplemental claim, and the Veteran later received the benefits sought.  No consideration of CUE would lead to a different result because the claim has been continuously pursued since the grant of service connection.  Consequently, we find that entitlement to service connection for sleep apnea arose on December 5, 2022, the date of receipt of the Veteran's Intent to File followed shortly thereafter by a December 9, 2022 supplemental claim.  An earlier effective date is denied.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching this conclusion, the evidence persuasively stands against finding in favor of the claim in that it is not in "approximate balance" or "nearly equal" to the evidence that supports the claim.  See Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other.")  Although the rule does not require that the evidence be in exact equipoise, there is still no doubt to resolve in the Veteran's favor.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, the claim for an earlier effective date prior to December 5, 2022 for service connection for sleep apnea is denied.

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Bodi

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.