190820-27114

Opinion

Citation Nr: AXXXXXXXX Decision Date: 03/31/20 Archive Date: 03/31/20

DOCKET NO. 190820-27114 DATE: March 31, 2020

ORDER

Entitlement to an earlier effective date of February 6, 2018 for the grant of service connection for sleep apnea with chronic bronchitis is dismissed as moot.

FINDING OF FACT

In a February 2020 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted an effective date of February 6, 2018 for the grant of service connection for sleep apnea with chronic bronchitis, the date the Veteran submitted an Intent to File for Compensation (VA Form 21-0966).

CONCLUSION OF LAW

Entitlement to an earlier effective date of February 6, 2018 for the grant of service connection for sleep apnea with chronic bronchitis is dismissed as moot. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1(p), 3.155, 3.156(a)-(b), 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1997 to July 1997, May 1998 to August 1998, October 2002 to August 2003, May 2007 to March 2009, October 2009 to November 2010, March 2011 to February 2012, and April 2013 to April 2014. He also performed service in the National Guard.

In December 2018, the Veteran elected the Higher-Level Review option under the Rapid Appeals Modernization Program (RAMP), the program that allowed veterans to opt-in to the new claims and appeals process before the Appeals Modernization Act went into effect in February 2019. 84 Fed. Reg. 138, 177 (Jan. 18, 2019); 38 C.F.R. § 19.2(d). Accordingly, a March 2019 AMA rating decision considered the evidence of record as of the date of that decision.

In August 2019, the RO issued a rating decision after special review that granted the Veteran’s claim for service connection for sleep apnea with chronic bronchitis, effective July 15, 2019, the date the Veteran filed a Decision Review Request: Supplemental Claim (VA Form 20-0996) for sleep apnea. This case comes before the Board of Veterans’ Appeals (Board) on appeal from that rating decision.

In an August 2019 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely and properly appealed the effective date of the grant of service connection for sleep apnea with chronic bronchitis and selected the direct review by a Veterans Law Judge. The Veteran specifically requested an earlier effective date of February 6, 2018 for the grant of service connection for sleep apnea with chronic bronchitis as that was the date he submitted his Intent to File. 38 C.F.R. § 20.202(b)(3) (2019).

In February 2020, after the Veteran’s appeal was docketed with the Board, the RO granted an effective date of February 6, 2018 for the grant of service connection for sleep apnea with chronic bronchitis, thereby constituting a full grant of the benefit the Veteran sought on appeal.

Even though an earlier effective date for the grant of service connection for sleep apnea was granted, there was no communication indicating that the Veteran filed a claim on the appropriate form or an intent to file a claim for service connection for sleep apnea prior to February 6, 2018, or filed a formal or informal claim prior to March 24, 2015. 38 C.F.R. §§ 3.150, 3.151 (from March 25, 2015 forward, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary); 38 C.F.R. § 3.155(b) (a veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA); 38 C.F.R. § 3.155(a) (prior to March 24, 2015, an informal claim was “[a]ny communication or action, indicating an intention to apply for one or more benefits...such informal claim must identify the benefit sought).

As there was no such formal or informal communication, there is therefore no evidence of record pointing to a claim for service connection for sleep apnea prior to the grant of service connection for sleep apnea with chronic bronchitis on February 6, 2018. Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018) (“The Secretary is correct that a general statement of intent to seek benefits for unspecified disabilities standing alone is insufficient to constitute a claim. Yet, the Secretary’s argument misses a crucial additional factor present here: evidence of reasonably identifiable in-service diagnoses of psychiatric conditions that predate the appellant’s claim were in the possession of the RO before it rendered its rating decision”); Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) (“language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition” can satisfy the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a)).

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Therefore, as the RO already has awarded the Veteran the benefit sought on appeal, the issue of an earlier effective date for the grant of service connection for sleep apnea with chronic bronchitis has been rendered moot. As there remains no case or controversy concerning whether the Veteran is entitled to this benefit sought, the issue on appeal must be dismissed since there is no remaining case or controversy within the Board’s jurisdiction as relating to this claim for an earlier effective date for the grant of service connection for sleep apnea with chronic bronchitis. 38 U.S.C. § 7105(d) (allowing the Board to dismiss any appeal which fails to identify the specific determination with which the claimant disagrees).

Jonathan Hager

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board H. Styer, 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.