Citation Nr: 18131294
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-40 041
DATE:	August 31, 2018
ORDER
An effective date earlier than July 26, 2010, for the award of service connection for left ankle sprain is denied.
REMANDED
Service connection for sleep apnea is remanded.
FINDINGS OF FACT
The Veteran filed an original claim of service connection for a left ankle disorder in May 1980.  The claim was denied in December 1980 and the Veteran received notice and filed a notice of disagreement, but he did not perfect his appeal following the issuance of a January 1981 statement of the case.  
CONCLUSION OF LAW
The criteria for an effective date earlier than July 26, 2010, for the award of service connection for left ankle sprain have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active service from June 1969 to November 1977. 
This matter is on appeal from an April 2013 rating decision.  
The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in September 2016.  
A transcript of the hearing has been associated with the claims file.  
EARLIER EFFECTIVE DATE 
Entitlement to an effective date earlier than July 26, 2010, for the award of service connection for left ankle sprain
The current effective date for the award of service connection for the left ankle sprain is July 26, 2010.  The Veteran maintains that an earlier effective date is warranted because he has had ankle problems since service and originally filed a claim of service connection for that disability in 1979.  Board Hr’g Tr. 1-4.  
Applicable Law
The effective date of an award based on an original claim or a claim reopened after final adjudication 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); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter.  See 38 C.F.R. § 3.400(r). 
(1) Date of Claim
A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. §5101(a)); 38 C.F.R. § 3.151.  A “claim” is 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).  The benefit sought must be identified, though it need not be specific.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). 
An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends).  38 C.F.R. §§ 20.200, 20.300, 20.302.  Otherwise, the rating decision becomes final.  See 38 C.F.R. § 20.1103.  
Also, if new and material evidence is received during an applicable appellate period following a RO decision, 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.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  
Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim.  See 38 C.F.R. §§ 3.156(c), 20.1000(b).  By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted.  Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014).
(2) Date Entitlement Arose
Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (‘nexus’) between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).
If a veteran whose petition to reopen is granted and the claim is ultimately granted “relies on the ‘receipt of the claim’ prong of section 3.400, rather than the ‘date entitlement arose’ prong, [the claimant] by definition had an entitlement to benefits that existed before the date of the relevant application to reopen.”  Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012).
Discussion
(1)	Date of Claim
The initial question for the Board concerns the date of claim that may be recognized for purposes of assigning an effective date.  After review, the Board finds that although the Veteran filed an earlier claim, the current effective date, July 26, 2010, is the earliest date that can be recognized.  
Specifically, the Veteran filed an original claim of service connection in May 1980.  That claim was denied in a December 1980 rating decision.  The Veteran filed a timely NOD in January 1981 after which the RO issued an SOC in January 1981.  He did not perfect his appeal by filing a substantive appeal.  At his Board hearing, he acknowledged that he did not appeal this issue.  See Board Hr’g Tr. 5-6.  Because he did not perfect his appeal, the original claim became final. 
Since that time, no additional, relevant service records have been received.  To the contrary, the STRs were in the record by the time of the December 1980 rating decision.  That rating decision cited all the relevant entries from those STRs.  Additional service personnel records (SPRs) were received at a later time, but they do not pertain to the left ankle disorder and did not support the award of service connection for the disability.  Thus, an earlier effective date is not assignable pursuant to § 3.156(c).  
No additional evidence was received after the January 1981 SOC.  See 38 C.F.R. § 3.156(b).  
Finally, the Veteran did not file a new claim until the instant claim was received in July 2010.  
Accordingly, the original claim became final, and the next earliest claim is the July 26, 2010 claim.  
(2)	Entitlement Arose
The next question for the Board concerns when entitlement to service connection for the left ankle sprain arose.  
On this question, the claims file shows that the RO reopened and granted service connection for the disability in the April 2013 rating decision on appeal.  The RO assigned the effective date based on the date the new claim was received.  Therefore, by definition, entitlement to benefits existed before the date of the July 2010 application to reopen.  See Akers, 673 F.3d at 1359.
In light of the foregoing, the Board is unable to assign an effective date earlier than July 26, 2010, for the award of service connection for left ankle sprain.  The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later.  Because the later of these two dates in this case is the date the Veteran filed his July 26, 2010 claim, there is no legal basis to assign an effective date earlier than that date.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.  Consequently, the appeal is denied.  
REASONS FOR REMAND
Service connection for sleep apnea is remanded.
This claim is remanded to obtain (1) missing private medical records constructively within VA’s possession; (2) outstanding private medical records (not in VA’s constructive possession); (3) SSA records; and (4) a new VA examination. 
First, a June 2015 VA medical record identifies “MULTI DATES” of non-VA care consultation results scanned into the Veteran’s electronic healthcare record.  The scanned records were not associated with the claims file.  As they appear potentially relevant, a remand is required to allow the RO to do so.  
Similarly, at his Board hearing, the Veteran testified that a private doctor, Dr. Russo, told him his sleep apnea was related to service.  Currently, the claims file contains only one record from this doctor, and it does not document such an opinion.  Accordingly, the Board has no way to determine the factual foundation and rationale for the opinion.  The Veteran is competent and credible in relating the doctor’s ultimate opinion, but without that underlying information, the Board cannot determine the probative value assignable to the opinion.  
Similarly, the Veteran testified at his Board hearing that a doctor, who was treating his wife, researched the chemicals associated with Camp Lejeune contamination and “thought . . . a lot of my problems could be related to that also.”  Board Hr’g Tr. 10.  Again here, this doctor’s opinion is not of record.  Therefore, the Board has  no way to determine its probative value.  
Upon remand, the Veteran should be asked to complete a VA Form 21-4142 for these private providers’ records to determine if the opinions are documented in those records.
Also, a May 2010 letter from the Social Security Administration (SSA) indicates that there may be outstanding and relevant records from that agency.  A remand is required to allow VA to request these records.
Finally, a new VA examination is needed.  A VA examiner previously reviewed his claim in August 2015 and reached a negative opinion as to the Veteran’s contention that his current diagnosis is related to his in-service snoring and apnea.  
Yet, at his Board hearing, the Veteran also indicated his belief that his sleep apnea may be related to two other events during service.  First, he was cleaning a shower during service, when he mixed bleach and drano together, which caused him to become sick and be taken away in an ambulance.  Board Hr’g Tr. 8.  (This event is well-documented in his STRs.)  Second, as indicated, a doctor who was treating the Veteran’s wife researched the chemicals associated with the Camp Lejeune contamination and “thought . . . a lot of my problems could be related to that also.”  Board Hr’g Tr. 10.  The August 2015 VA examiner did not address these theories.  However, as the Veteran’s testimony indicates a possible nexus, a new opinion is needed.  
The matter is REMANDED for the following action:
1. Obtain the scanned medical records in the VA electronic record, including those documented as scanned into the record in June 2015.
2. Obtain the Veteran’s federal records from SSA.  Document all requests for information as well as all responses in the claims file.
3. Ask the Veteran to complete a VA Form 21-4142 for Dr. Russo and his wife’s treatment provider.  Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile.
4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not related to either (a) an event during service in December 1971 when the Veteran was hospitalized after inhaling a bleach-drano mixture, or (b) exposure to contaminated water while serving at Camp Lejeune.  

 
C. CRAWFORD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Bosely, Counsel 
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