Citation Nr: 18900009
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180629-46
 DATE:	August 15, 2018
ORDER
Entitlement to an effective date of April 28, 2017, for the award of a 70 percent rating for service-connected posttraumatic stress disorder (PTSD), is granted.
Entitlement to an effective date of April 28, 2017, for the award of entitlement to service connection for erectile dysfunction associated with PTSD, is granted.
Entitlement to an effective date of April 28, 2017, for the award of special monthly compensation (SMC) under 38 U.S.C. 1114(k) and 38 C.F.R. 3.350(a) based on loss of use of a creative organ, is granted. 
Entitlement to an effective date of April 28, 2017, but no earlier, for the award of entitlement to service connection for sleep apnea, is granted.
Entitlement to an initial 50 percent rating for sleep apnea is granted.

FINDINGS OF FACT
1. A February 2009 rating decision denied the Veteran’s claim of entitlement to service connection for erectile dysfunction.  The Veteran was notified of this decision and of his appellate rights, but did not appeal the decision and it became final.
2. An October 2009 rating decision denied the Veteran’s claim of entitlement to service connection for sleep apnea.  The Veteran was notified of this decision and of his appellate rights and initiated an appeal of this decision; however, he did not perfect an appeal and it became final.
3. The Veteran submitted an “intent to file” on April 28, 2017; on April 26, 2018, the Veteran filed an application for service connection for erectile dysfunction, service connection for sleep apnea, and an increased disability rating for his service-connected PTSD. 
4. Entitlement to the award of SMC at the (k) rate under 38 U.S.C. § 1114, for loss of use of a creative organ, arose on April 28, 2017.
5. The Veteran’s sleep apnea requires the use of a continuous positive airway pressure (CPAP) machine but does not exhibit chronic respiratory failure with carbon dioxide retention or cor pulmonale, or require tracheostomy.

CONCLUSIONS OF LAW
1. The criteria for an effective date of April 28, 2017, for the award of a 70 percent rating for service-connected PTSD, have been met.  38 U.S.C. §§ 5100, 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.130, Diagnostic Code 9411 (2018).
2. The criteria for an effective date of April 28, 2017, for the award of entitlement to service connection for erectile dysfunction associated with PTSD, have been met.  38 U.S.C. §§ 5100, 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018).

3. The criteria for an effective date of April 28, 2017, for the award of SMC under 38 U.S.C. 1114(k) and 38 C.F.R. 3.350(a) based on loss of use of a creative organ, have been met.  38 U.S.C. §§ 1114(k), 5100, 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 3.350(a) (2018).
4. The criteria for an effective date of April 28, 2017, for the award of entitlement to service connection for sleep apnea associated with allergic rhinitis, have been met.  38 U.S.C. §§ 5100, 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018).
5. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial rating of 50 percent, and no higher, for sleep apnea are met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.310, 3.321, 4.3, 4.97, Diagnostic Code 6847 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1993 to April 2001.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review.  The Veteran chose to participate in BEAAM, the Board’s Early Applicability of Appeals Modernization research program.  This decision has been written consistent with the new AMA framework.
Earlier Effective Dates
In the June 2018 rating decision that forms the basis for this appeal, the RO granted an increased 70 percent rating for the Veteran’s service-connected PTSD, effective from April 26, 2018 forward; granted service connection for erectile dysfunction as secondary to the service-connected PTSD, assigning a noncompensable (0 percent) evaluation and awarding special monthly compensation (SMC) at the (k) rate under 38 U.S.C. § 1114 for loss of use of a creative organ, each effective from April 26, 2018 forward; and granted service connection for sleep apnea as secondary to the service-connected allergic rhinitis, assigning a noncompensable rating, also effective from April 26, 2018.  The RO based the assigned effective date on the date of receipt of the Veteran’s Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), in which he requested an increased rating for PTSD and service connection for erectile dysfunction and sleep apnea. 
The Veteran seeks an earlier effective date of April 28, 2017. for the awards of the 70 percent rating for his PTSD, service connection for erectile dysfunction, and SMC (k).  He seeks an effective date in 2009 for the award of service connection for sleep apnea.  Specifically, the Veteran argues that he submitted a form notifying VA of his intent to file a claim less than one year before he submitted his April 2018 application, and thus the April 28, 2017 date of his “intent to file” should serve as the effective date for the awards of the 70 percent rating for his PTSD, service connection for erectile dysfunction, and SMC.  As concerning the effective date for the grant of service connection for sleep apnea, the Veteran asserts that his award should be effective as of the date of his previously denied claim for service connection for sleep apnea, which his representative states is March 13, 2009.  See June 2018 Memorandum of Information Regarding Appeal.
Except as 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 the later.  38 U.S.C. § 5100; 38 C.F.R. § 3.400.  If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  Nevertheless, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability at that time.  38 C.F.R. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  For this purpose, the evidence must show that an ascertainable increase in disability sufficient to warrant a higher rating under the rating criteria.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability).
For claims received prior to March 24, 2015, a “claim” is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p), 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  Any communication or action indicating an intent to apply for one or more VA benefits, including statements from a Veteran’s duly authorized representative, may be considered an informal claim.  38 C.F.R. § 3.155 (a) (2015).  Such informal claims must identify the benefit sought. Id.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id.  
Also effective prior to March 2015, VA regulation provided, in relevant part, that a report of examination, treatment, or hospital admission by VA will be accepted as the date of receipt of claim for increased benefits when it pertains to a disability for which service connection has previously been established.  38 C.F.R. § 3.157.  In order to qualify as an informal claim under § 3.157, 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.
Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155).  Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary.  38 C.F.R. § 3.155(a).  Non-standard narrative communications/submissions — previously construed as informal claims — will be considered a request for an application for benefits.  See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014) (where a claimant submits an informal claim, VA will deem it a request for an application for benefits).  The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157.  See id.
The amended regulation also allows a claimant to submit an “intent to file a claim,” which operates similarly to the informal claim process.  Specifically, 38 C.F.R. § 3.155(b) provides that, if VA receives a complete application form within one year of the receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received.  There are three ways in which a claimant may submit an intent to file a claim: (i) by electronically initiating and saving a benefits application in a claims-submission tool with a VA web-based electronic claims application system; (ii) by submitting a written intent, signed and dated on the intent to file a claim form prescribed by the Secretary; or (iii) by orally communicating intent to designated VA personnel that is subsequently recorded in writing and documented in the claimant’s records.  38 C.F.R. § 3.155(b). 
In the instant case, the record reflects that, in an April 2017 letter, the RO notified the Veteran of VA’s receipt of his “intent to file” a claim for compensation on April 28, 2017.  See April 2017 Notification Letter (stating that “[w]e received your intent to file on April 28, 2017[, in which y]ou indicated you would like to file a claim for compensation”).  On April 26, 2018, within one year of VA’s receipt of his intent to file, the Veteran submitted a completed Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), requesting service connection for erectile dysfunction and sleep apnea, as well as an increased rating for his service-connected PTSD.  As such, pursuant to 38 C.F.R. § 3.155(b), the complete claim is considered to have been filed on April 28, 2017, the date that the Veteran’s intent to file a claim was received. 
1. Effective Date of PTSD Rating 
In the June 2018 rating decision that forms the basis of this appeal, the RO granted an increased 70 percent rating for the Veteran’s service-connected PTSD based upon the results of the May 2018 VA PTSD examination report, which determined that the Veteran’s PTSD was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  See May 2018 VA PTSD Disability Benefits Questionnaire (DBQ) (identifying psychiatric symptoms including depressed mood; anxiety; suspiciousness; panic attacks that occur more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; and chronic sleep impairment).  See also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411; June 2018 Rating Decision (“The overall evidentiary record shows that the severity of your disability most closely approximates the criteria for a 70 percent disability evaluation”). 
Additionally, as noted above, the RO premised the assignment of the effective date for the award of the increased 70 percent rating for the Veteran’s PTSD upon the finding that April 26, 2018, was the date of the Veteran’s claim.  See June 2018 Rating Decision (noting that “[w]hen an increased evaluation is granted based on VA medical evidence showing an increase in disability after the date the claim was received, the effective date of the increase is the date the claim was received). 

However, as discussed, April 28, 2017 is the effective date of the Veteran’s claim for the increased rating for his PTSD.  38 C.F.R. § 3.155(b).  As such, because the date of claim is April 28, 2017, rather than April 26, 2018, there is essentially no principled reason for awarding the 70 percent rating effective the latter date as opposed to the former.  Accordingly, a 70 percent rating is granted effective April 28, 2017.  38 U.S.C. §§ 5100, 5110; 38 C.F.R. §§ 3.155(b), 3.400; Hazan, 10 Vet. App. at 519.
2. Effective Date of Service Connection for Erectile Dysfunction
As concerning the issue of entitlement to an earlier effective date for the grant of service connection for erectile dysfunction associated with PTSD, as discussed in detail above, the June 2018 rating decision based the currently assigned effective date of April 26, 2018, on the finding that this was the date of claim.  However, as discussed, the Veteran’s complete claim is considered to have been filed on April 28, 2017.  Moreover, the May 2018 VA male reproductive system examination report, upon which the grant of service connection was based, reflects the determination that the Veteran’s erectile dysfunction has been productive of essentially the same manifestations since at least 2008. 
As such, the Board finds that an earlier effective date of April 28, 2017, is established for the grant of service connection for erectile dysfunction associated with PTSD, based on the date of the Veteran’s intent to file and the medical evidence indicating that his erectile dysfunction was present at the time of his April 2017 submission.  38 U.S.C. § 5100; 38 C.F.R. §§ 3.155(b), 3.400.
The Board additionally notes that the Veteran’s claim for service connection for erectile dysfunction was initially denied in a February 2009 rating decision.  The Veteran did not submit a notice of disagreement (NOD) as to that issue and there was no new and material evidence physically or constructively received by VA prior to the expiration of the appellate period.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302; see Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  The February 2009 rating decision thus became final.  And as noted above, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the new claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2).  Therefore, April 28, 2017, is the earliest possible effective date for the award of service connection for erectile dysfunction. 
3. Effective Date for SMC (k) Based on Loss of Use of a Creative Organ
In light of the grant of an effective date of April 28, 2017, for the award of service connection for erectile dysfunction associated with PTSD, an earlier effective date for the award of SMC (k) is also warranted.  38 C.F.R. § 3.350 (a)(1)(ii).  Accordingly, an effective date of April 28, 2017, is granted SMC at the (k) rate under 38 U.S.C. § 1114 for loss of use of a creative organ.  38 U.S.C. § 1114(k); 38 C.F.R. § 3.350 (a)(1)(ii). 
4. Effective Date of Service Connection for Sleep Apnea
The Veteran initially filed a claim for service connection for sleep apnea on May 5, 2009.  See Statement in Support of Claim (VA Form 21-4138) (reflecting the Veteran’s request for “service connection for Sleep Apnea secondary to his Allergic Rhinitis”).  An October 2009 rating decision denied his claim, and the Veteran submitted a timely NOD later that month. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating an appeal).  A March 2010 statement of the case (SOC) continued to deny service connection for sleep apnea.  See March 2010 Notification Letter (notifying the Veteran of this denial and enclosing the SOC and instructions on perfecting his appeal to the Board).  However, the Veteran did not perfect his appeal.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (setting forth requirements and time limits for perfecting an appeal to the Board).  Moreover, new and material evidence was not received within one year of the October 2009 rating decision.  38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds).  Accordingly, the October 2009 rating decision became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a); 20.200, 20.302, 20.1103.
As noted, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the new claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2).  Because the Veteran’s complete claim, which included a new claim for service connection for sleep apnea, is considered to have been filed on April 28, 2017, this date is the earliest possible effective date for the award of service connection for sleep apnea associated with allergic rhinitis.
The Board is sympathetic toward the Veteran’s well-articulated and sincere arguments presented in his documentation in support of his contentions that an even earlier effective date is warranted.  However, the Board cannot consider the Veteran’s assertions concerning the incorrect factual foundation upon which the RO based its October 2009 denial of service connection for sleep apnea, no matter how well founded, in the context of this earlier effective date claim.  This is because previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE).  See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date as to a previous final decision is not authorized by law).  Only where evidence establishes such error will the prior decision be reversed or amended.  38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a).  To date, neither the Veteran nor his representative have requested revision of the October 2009 rating decision based on CUE, and the issue has not been adjudicated by the RO.  Therefore, should the Veteran wish to challenge the initial denial of service connection for sleep apnea, he should file the proper motion with the RO.  See Rudd, 20 Vet. App. at 300 (holding that there are no freestanding effective date claims).
Accordingly, based on the date of the Veteran’s intent to file and the medical evidence, including specifically the Veteran’s November 2008 VA Sleep Study and the May 2018 VA Sleep Apnea DBQ, indicating that his sleep apnea was present at the time of his April 2017 submission, the Board finds that an effective date of April 28, 2017, but no earlier, is established for the grant of service connection for sleep apnea associated with allergic rhinitis.  38 U.S.C. § 5100; 38 C.F.R. §§ 3.155(b), 3.400.
Initial Compensable Disability Rating
5. Sleep Apnea Associated with Allergic Rhinitis
VA has adopted a Schedule for Rating Disabilities (Rating Schedule) to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  Diagnostic codes (DCs) in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned. Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. 
Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.
Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In initial-rating cases, where the appeal stems from a rating decision granting service connection with respect to the initial evaluation assigned the disability at issue, VA assesses the level of disability from the effective date of service connection. Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110 (2014); 38 C.F.R. § 3.400. 
The Veteran’s service-connected sleep apnea was initially rated as noncompensable (0 percent) under 38 C.F.R. § 4.97, DC 6847. 
Under DC 6847, a noncompensable rating is warranted where sleep apnea syndromes are asymptomatic but there is documented sleep disorder breathing; a 30 percent rating is assigned for sleep apnea syndromes that result in persistent day-time hypersomnolence; a 50 percent rating is warranted where sleep apnea syndromes require the use of breathing assistance device such as continuous airway pressure (CPAP) machine; and a 100 percent rating is assigned for sleep apnea syndromes that result in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.  38 C.F.R. § 4.97.
Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established.  This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b).  The rating activity will determine the baseline and current levels of severity under the Rating Schedule and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id.
In the June 2018 rating decision, the RO granted entitlement to service connection for sleep apnea based on aggravation by the Veteran’s service-connected allergic rhinitis.  As concerning the baseline level of disability, the RO found that “[p]rior to aggravation by a service-connected condition, the [sleep apnea] was considered 50 percent disabling based on evidence that showed that [the Veteran require[d] a CPAP machine[; and f]ollowing aggravation, the total disability is 50 percent disabling because [the Veteran] require[s] a CPAP machine and medication, and experience[s] persistent daytime hypersomnolence.”  See June 2018 Rating Decision.  The RO thus determined that there was no difference between the evaluation warranted for the pre- and post-aggravation sleep apnea manifestations, resulting in an initial noncompensable rating.
Significantly, the RO’s findings concerning both the aggravating effect of the allergic rhinitis on the sleep apnea, as well as the baseline level of disability and the extent of aggravation, were based solely upon the May 2018 VA sleep apnea examination report and opinion.  See June 2018 Rating Decision; May 2018 VA Sleep Apnea DBQ; May 2018 VA Medical Opinion DBQ.  In this regard, the May 2018 VA examiner opined that the Veteran’s sleep apnea was not caused by or proximately due to his service-connected allergic rhinitis because the Veteran “was originally diagnosed with [sleep apnea] [in November 2008], and he was not diagnosed with allergic rhinitis until 2009.”  However, because rhinitis-related nasal congestion “causes the upper airway to narrow” and “increase[s] the risk of both snoring and [obstructive sleep apnea]” the VA examiner determined that the allergic rhinitis likely aggravated the Veteran’s sleep apnea beyond its natural progression. 
Despite these findings, the Board notes that there is extensive medical documentation in the Veteran’s claims file reflecting diagnoses of allergic rhinitis since at least 2003.  See March 2007 Board Decision (awarding service connection for allergic rhinitis and discussing medical evidence including “an April 2003 private treatment record [in which] the Veteran s private medical doctor noted that the Veteran had a ten-year history of allergic rhinitis” and the April 2005 VA examination report noting “that the veteran had year-round allergy attacks since 1994”).  Thus, the May 2018 VA examiner’s ultimate determination concerning the presence of a pre-aggravation baseline level for the sleep apnea is based entirely upon the inaccurate factual premise that the sleep apnea diagnosis predated the allergic rhinitis diagnosis, when, in fact, the opposite is true.  Furthermore, although the examiner checked the box that indicated that she could determine the baseline level of severity of the Veteran’s sleep apnea prior to the asserted aggravation by the allergic rhinitis, she provided no rationale, opinion, or findings to support that conclusion. 
Because the medical evidence establishes a diagnosis of allergic rhinitis more than a decade before the Veteran was diagnosed with sleep apnea, considering the VA examination report and opinion which notes medical treatise evidence highlighting that “sleep apnea . . . is linked with allergic rhinitis,” given that the Veteran’s sleep apnea has required the use of a CPAP machine since his 2008 diagnosis, and in the absence of any probative evidence to the contrary, the Board will resolve all reasonable doubt in favor of the Veteran and find that an initial disability rating of 50 percent is warranted for the service-connected sleep apnea.  38 C.F.R. § 4.97, DC 6847.
There is no evidence, however, reflecting that higher or separate ratings are warranted for any of the manifestations of the Veteran’s sleep apnea, as the sleep apnea has not resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, and has not required a tracheostomy.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, and 4.97, DC 6847. See also Fenderson, 12 Vet. App. at 125. 
 
K.A. KENNERLY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. McCabe, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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