Gattis v. Wilkie
| Decision Date | 25 March 2020 |
| Docket Number | 18-7063 |
| Parties | David E. Gattis, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Glenn R. Bergmann, Esq. VA General Counsel
Before MEREDITH, Judge.
The appellant, David E. Gattis, through counsel appeals an August 21, 2018, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability rating in excess of 50% for obstructive sleep apnea (OSA) and an effective date prior to March 15, 2007, for the 50% disability rating for OSA. Record (R.) at 4-11. Additionally, the Board granted entitlement to disability compensation for a right shoulder disability. This is a favorable factual finding that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff'd in part and dismissed in part sub nom. Medrano v. Shinseki, 332 Fed.Appx. 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ().
This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). [1] Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 25-26 (1990). For the following reasons, the Court will vacate the Board's decision denying an effective date prior to March 15, 2007, for the 50% disability rating for OSA; remand that matter for further proceedings consistent with this decision; and affirm the Board's decision denying a disability rating in excess of 50% for OSA.
The appellant served on active duty in the U.S. Navy from June 1967 to March 1971, October 1976 to September 1977, April to November 1978, September 1980 to April 1983, February 1984 to September 1988, and November 1988 to March 1996. R. at 784, 786, 788, 790, 792, 794, 797. A March 1996 medical record reflects that his symptoms of loud snoring, breathing problems while asleep, and excessive daytime sleepiness were found consistent with OSA and his physician recommended the use of a nasal continuous positive airway pressure (CPAP) machine. R. at 2098. In April 1996, he filed a claim for disability compensation for sleep apnea. R. at 2309-12. He underwent a VA examination in June 1996; the examiner noted that the appellant underwent a sleep study in March 1996, "but he has not been started on any treatment," and diagnosed OSA. R. at 2261-62. On October 2, 1996, the RO awarded disability compensation for OSA and assigned a 0% disability rating under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8199-8108 (1996) (rated by analogy to narcolepsy).[2] R. at 2216-25. Effective October 7, 1996, VA added DC 6847 for sleep apnea syndromes (obstructive, central, and mixed) to 38 C.F.R. § 4.97, which provided for a 50% disability rating for sleep apnea requiring the use of a breathing assistance device such as a CPAP machine. 61 Fed. Reg. 46, 720, 46, 730 (Sept. 5, 1996). The appellant did not appeal the October 1996 rating decision.
In August 2010, the appellant filed a claim for an increased rating for OSA, R. at 2170, and in August 2011, the RO awarded an increased rating of 50% under DC 6847 effective March 15, 2007, the date medical evidence showed that entitlement to an increased rating was warranted, R. at 1796-97; see R. at 1795-804. He filed an NOD in May 2012, asserting that the effective date for the 50% disability rating should be October 2, 1996, because that was the date he was prescribed the use of a CPAP machine for his sleep apnea. R. at 1618-19, 1637. In August 2012, he submitted a more general NOD, broadly disagreeing with the August 2011 decision and noting that he was "filing to protect [his ap]pellate rights." R. at 1600. He subsequently perfected his appeal to the Board as to the effective date. R. at 603-05, 616-60. In November 2014, he questioned why he was not informed of the change in the rating schedule and the potential qualification for an increased rating when he was evaluated in September 2008 at a VA facility and noted that his VA treatment records showed that he was using a CPAP machine in May 2002. R. at 599, 601. He also indicated that he believed it was unfair that he was not informed of the pending change in the diagnostic codes when he underwent his VA examination in June 1996 and requested an effective date of October 7, 1996, for the award of the 50% disability rating. Id.
The appellant testified before a member of the Board in June 2018; the Board member identified the issues on appeal as including entitlement to both an increased rating for OSA and an earlier effective date for the 50% rating. R. at 445-59. On August 21, 2018, the Board denied entitlement to a disability rating in excess of 50% for OSA and an effective date prior to March 15, 2007, for a 50% disability rating for OSA. R. at 4-11. This appeal followed.
At the time of the decision on the appellant's claim for increase in this case, 38 U.S.C. § 5110(a), which governs the assignment of an effective date for an award of benefits, provided:
[T]he 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). The implementing regulation similarly provided that the effective date generally "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011).[3] However, if an increase in compensation is based on the issuance of a new act or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a) (2011); see DeSousa v. Gober, 10 Vet.App. 461, 467 (1997) (); McCay v. Brown, 9 Vet.App. 183, 187 (1996) (same), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). "If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request." 38 C.F.R. § 3.114(a)(3).
The appellant argues that the Board provided inadequate reasons or bases for denying an earlier effective date for the assignment of a 50% rating for OSA because the Board failed to address whether he was provided with adequate notice in the October 1996 rating decision to comply with due process, address VA's duty to notify him of the liberalizing law in 1996 pursuant to 38 U.S.C. § 7722, and adjudicate an allegation of clear and unmistakable error (CUE) in the October 1996 rating decision. Appellant's Brief (Br.) at 13-16, 19-29; Reply Br. at 1-10. He alternatively contends that the Board failed to consider whether he could be entitled to an earlier effective date pursuant to 38 C.F.R. § 3.157, based on the submission of a May 2002 VA treatment record showing that he used a breathing device for OSA. Appellant's Br. at 17-18; Reply Br. at 10-12. The Secretary counters that, in seeking an earlier effective date, the appellant generally attempts to circumvent the finality of the October 1996 rating decision, Secretary's Br. at 11-24, and that the Court does not have jurisdiction to consider the CUE allegation, id. at 29-32.
In the decision on appeal, the Board acknowledged the appellant's assertion that he should be awarded an effective date of October 7, 1996, for the 50% rating for OSA because that was the effective date for the regulatory amendment creating DC 6847 for OSA. R. at 6. The Board then determined that the change to the regulation was a liberalizing law such that § 3.114 applies. R. at 7-8. The Board found, however, that, because his claim for an increased rating was filed in August 2010, more than 1 year after the effective date of the liberalizing law, it was "barred as a matter of law from granting the earlier effective date that the [appellant] has requested." R. at 8. The Board acknowledged his assertion that he was not notified of the change to the DC in 1996, but found that VA did not have a duty to notify him of the change, explaining that VA is not required to sua sponte review a claimant's potential entitlement to benefits or seek out beneficiaries of a liberalizing law. Id.
The Fifth Amendment to the U.S. Constitution provides that "[n]o person shall . . . be deprived of life, liberty or property, without due process of law." U.S. Const. amend. V. "[T]he Due Process Clause provides that certain substantive rights-life, liberty, and property-cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). An essential principle of due process is that deprivation of a protected interest must "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The Court reviews constitutional questions de novo. Buzinski v. Brown, 6 Vet.App. 360, 365 (1994).
The appellant argues that his due process rights were violated because the October 1996...
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