Case A26040899

Summary

The Veteran, a Navy Veteran who served from January 1987 to March 1994, appeals the effective date assigned to the grant of service connection for obstructive sleep apnea (OSA). The Veteran initially claimed service connection for PTSD on July 30, 2017. The Board found that this initial claim reasonably encompassed the issue of OSA, as the Veteran's treatment records and subsequent VA examinations noted sleep impairments and OSA diagnoses relevant to his mental health condition. The Veteran also submitted a private medical opinion in February 2020 correlating OSA with his mental health disability. Although the agency of original jurisdiction granted service connection for OSA in December 2020, it assigned an effective date based on a May 2020 supplemental claim rather than the initial July 2017 PTSD claim. The Board agreed with the Veteran that his claim for PTSD reasonably included OSA, citing continuous pursuit of the claim and evidence of record, including treatment records and examiner notes. Therefore, the Board granted the earlier effective date of July 30, 2017, for the OSA award, aligning with the date of the initial PTSD claim.

Rationale

Claim for OSA reasonably encompassed within initial PTSD claim; Continuous pursuit of claim since July 2017; Treatment records and examiner notes supported OSA diagnosis; Private medical opinion correlated OSA with mental health disability

Full Decision Text

Citation Nr: A26040899
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210119-135141
DATE: April 30, 2026

ORDER

Entitlement to an effective date of July 30, 2017, but no earlier, for the award of service connection for obstructive sleep apnea (OSA) is granted.

FINDINGS OF FACT

1. The Veteran filed a claim for benefits for posttraumatic stress disorder (PTSD) on July 30, 2017. 

2. In a June 20, 2020, rating decision, the agency of original jurisdiction (AOJ) granted the Veteran service connection for PTSD, major depressive disorder, and anxiety disorder, effective July 30, 2017.  

3. Prior to the June 20, 2020, rating decision, the AOJ had conceded that the scope of the Veteran's claim for service connection for PTSD included sleep disturbances.  

4. The Veteran's claim for service connection for PTSD reasonably encompassed the issue of entitlement to service connection for sleep apnea.  

5. The Veteran has continuously pursued his claim for service connection for OSA, since July 30, 2017.

CONCLUSION OF LAW

The criteria for the assignment of July 30, 2017, for the award of service connection for the Veteran's OSA have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.104(c), 3.155.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from January 1987 to March 1994.

In the January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on December 3, 2024, before the undersigned Veterans Law Judge.

Although the Veteran initially requested Higher-Level Review when submitting the July 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. Therefore, the Board may only consider the evidence of record at the time of the December 2020 AOJ\ supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the RAMP supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 of July 30, 2017, but no earlier, for the award of service connection for OSA is granted.

In the rating decision on appeal, the Veteran was granted service connection for OSA as secondary to the Veteran's service-connected disability of post-traumatic stress disorder, major depressive disorder, and anxiety disorder and assigned a 50 percent rating effective May 4, 2020. The Veteran contends that the claim for service connection for OSA was reasonably raised during the administrative appeal for his claim for PTSD. See Hearing Transcript at 3. The Board agrees.  

Generally, the effective date for the award of service-connected compensation is the "date of receipt of the claim, or date entitlement arose, whichever is later." 38 U.S.C. § 5110(a)(1); 38 C.F.R. § 3.400(b)(2)(i). For rating decisions issued after February 19, 2019, (i.e., claims adjudicated under The Veteran Appeals Improvement and Modernization Act of 2017), once the AOJ decides a claim, the claimant has one year to seek administrative review of that claim by filing the appropriate form for a request for higher-level review or an appeal to the Board. 38 C.F.R. § 3.2500(a)(
Generally, the effective date for the award of service-connected compensation is the "date of receipt of the claim, or date entitlement arose, whichever is later." 38 U.S.C. § 5110(a)(1); 38 C.F.R. § 3.400(b)(2)(i). For rating decisions issued after February 19, 2019, (i.e., claims adjudicated under The Veteran Appeals Improvement and Modernization Act of 2017), once the AOJ decides a claim, the claimant has one year to seek administrative review of that claim by filing the appropriate form for a request for higher-level review or an appeal to the Board. 38 C.F.R. § 3.2500(a)(1). A claimant can continuously pursue a claim by filing a Supplemental Claim, a request for higher-level review, or a Board appeal within one year of the AOJ's decision on an initial claim or a Supplemental Claim. 38 C.F.R. § 3.2500(c), (h). The effective date of a continuously pursued claim is the date of the initial claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1).

Here, the Veteran originally filed a claim for service connection for PTSD on July 30, 2017. During the course of the adjudication of his claim for service connection for PTSD, the AOJ conceded that the Veteran's claim had included sleep disturbances, which the Board finds, based on this record, reasonably included the issue of entitlement to service connection for OSA.  See, e.g., November 2, 2018, Rating Decision; See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Indeed, this is supported by the record.  The Board observes that when the Veteran filed his original service connection claim for PTSD, the record had already contained treatment records reflecting that the Veteran had a history of sleep impairment associated with his mental health disability. See June and July 2017 VA Treatment Records. Additionally, in November 2017, the Veteran described his claim for service connection as "sleep disturbances." During October 2018 and November 2019 PTSD VA Examinations, VA examiners noted sleep apnea as a diagnosis relevant to understanding and managing the Veteran's mental health disorder. Additionally, in February 2020, the Veteran submitted a private medical opinion by Dr. B.B. pertaining to the correlation between the Veteran's history of OSA and his mental health disability. Additionally, the Veteran's December 2020 VA Examination for OSA noted that the Veteran had symptoms of insomnia, heavy snoring, and fatigue, associated with the Veteran's PTSD as early as 2017, in which the Veteran's diagnosis for OSA was confirmed. Thus, pursuant to Clemons, supra, the Board finds that the Veteran's initial claim for service connection for PTSD reasonably encompassed the issue of entitlement to service connection for OSA.

Following significant procedural development, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, formally seeking service connection for OSA in May 2020.  His claim was summarily denied the same month.  One month later, he was granted service connection for PTSD, major depressive disorder, and anxiety disorder, effective July 30, 2017, the date of the Veteran's initial claim.  

In response, the Veteran filed a July 2020 VA Form 20-0995, Decision Review Request: Higher Level Review, seeking to establish service connection for sleep apnea, contending that it was secondary to his service-connected PTSD.  Following a November 2020 rating decision, finding a duty to assist error had occurred and additional development was warranted, the AOJ issued the December 2020 rating decision on appeal granting service connection for OSA.  The AOJ, however, affixed the effective date of the award based on the Veteran's May 2020 Supplemental Claim and not his initial July 2017 claim.  

The Board finds that the Veteran is entitled to an earlier effective date of July 30, 2017, but no earlier, for the award of service connection for OSA.  This is so because the Board finds that his claim for service connection for PTSD which was granted in the June 2020 rating decision reasonably encompassed the issue of entitlement to service connection for OSA.  Subsequent to the June 2020 grant of service connection for PTSD, the Veteran timely filed requests for Higher Level Review and Board Review following adverse AOJ decisions, continuously pursuing his claim, which ultimately led to the grant of service connection for OSA and the instant appeal involving the dispute pertaining to the proper effective date to be assigned to that benefit award.  The Board resolves this dispute in the Veteran's
 an earlier effective date of July 30, 2017, but no earlier, for the award of service connection for OSA.  This is so because the Board finds that his claim for service connection for PTSD which was granted in the June 2020 rating decision reasonably encompassed the issue of entitlement to service connection for OSA.  Subsequent to the June 2020 grant of service connection for PTSD, the Veteran timely filed requests for Higher Level Review and Board Review following adverse AOJ decisions, continuously pursuing his claim, which ultimately led to the grant of service connection for OSA and the instant appeal involving the dispute pertaining to the proper effective date to be assigned to that benefit award.  The Board resolves this dispute in the Veteran's favor and finds that the assignment of an effective date of July 30, 2017, for the award of service connection for OSA is warranted.  38 U.S.C. § 5110(a)(1); 38 C.F.R. § 3.400(b)(2)(i); see also 38 C.F.R. § 3.2500(c), (h)(1).   

 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Fam, Associate Counsel

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.