Citation Nr: 1324253 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-39 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether the Veteran submitted a timely Substantive Appeal of a September 2004 rating decision that initially granted service connection for: head and neck cancer, rated 30 percent disabling; facial and neck disfigurement, rated 10 percent disabling; radiation burns to chest, rated 0 percent disabling; and abdominal surgical scar, rated 0 percent disabling; all effective September 26, 2001. 2. Entitlement to an effective date earlier than May 2, 2006, for a 50 percent evaluation for facial and neck disfigurement status post radical neck dissection. 3. Entitlement to an effective date earlier than May 2, 2006, for the grant of service connection for limitation of motion, right arm, secondary to neck surgery. 4. Entitlement to an effective date earlier than May 2, 2006, for the grant of service connection for numbness, right side of face and tongue, with loss of salivary gland function, secondary to neck surgery. 5. Entitlement to an effective date earlier than May 2, 2006, for a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to May 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that determined that a timely substantive appeal had not been submitted as to a September 2004 rating decision that initially granted service connection for head and neck cancer, rated 30 percent disabling; facial and neck disfigurement, rated 10 percent disabling; radiation burns to chest, rated 0 percent disabling; and abdominal surgical scar, rated 0 percent disabling; all effective September 26, 2001. These matters also come to the Board on appeal from a March 2007 rating decision that increased the rating for facial and neck disfigurement status post radical neck dissection to 50 percent, granted service connection for limitation of motion of the right arm, granted service connection for numbness of the right side of the face and tongue with loss of salivary gland function, and granted a total disability rating based on individual unemployability due to service connected disability (TDIU), all effective May 2, 2006. In March 2009, the Veteran testified before the undersigned at a Board hearing at the RO. A transcript of that hearing has been incorporated into the record. In February 2010, the Board remanded the appeal for further development. FINDINGS OF FACT 1. In a September 2004 rating decision, the RO effectuate a September 2004 Board decision and granted service connection for head and neck cancer, rated 30 percent disabling; granted service connection for facial and neck disfigurement, rated 10 percent disabling; granted service connection for radiation burns to chest, rated 0 percent disabling; and granted service connection for abdominal surgical scar, rated 0 percent disabling; all effective September 26, 2001. The RO notified the Veteran of the decision on September 28, 2004. 2. The RO received a Notice of Disagreement with the disability ratings assigned on October 8, 2004, and issued a Statement of the Case on February 24, 2006. 3. The RO did not receive any communication from the Veteran or his representative capable of being construed as a Substantive Appeal until May 2, 2006, more than 60 days following the issuance of the Statement of the Case, and more than one year following the notice of the September 2004 rating decision. 4. VA received a claim for an increased rating for facial and neck disfigurement status post radical neck dissection on May 2, 2006. 5. It is not factually ascertainable that the Veteran's facial and neck disfigurement status post radical neck dissection met the criteria for a 50 percent rating within the one-year period prior to May 2, 2006. 6. It is not factually ascertainable that the Veteran met the criteria for a TDIU within the one-year period prior to May 2, 2006. 7. VA received a claim for service connection for limitation of motion of the right arm and for numbness of the right side of the face and tongue with loss of salivary gland function, both secondary to neck surgery, on October 8, 2004. CONCLUSIONS OF LAW 1. The Veteran did not submit a timely Substantive Appeal as prescribed by law following the issuance of the February 24, 2006, Statement of the Case. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.202 (2012). 2. The criteria for an effective date earlier than May 2, 2006, for a 50 percent evaluation for facial and neck disfigurement status post radical neck dissection have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.400 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). 3. The criteria for an effective date earlier than May 2, 2006, for a TDIU have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.400, 4.16 (2012). 4. The criteria for an effective date of October 8, 2004, but no earlier, for the grant of service connection for limitation of motion, right arm, secondary to neck surgery, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2012). 5. The criteria for an effective date of October 8, 2004, but no earlier, for the grant of service connection for numbness, right side of face and tongue, with loss of salivary gland function, secondary to neck surgery, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the timeliness of the Substantive Appeal, the Board finds that the law, and not the evidence, is dispositive. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts, is dispositive in a matter, VA's duties to notify and assist have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2002). With respect to the claims for an earlier effective date for a 50 percent evaluation for facial and neck disfigurement and for a TDIU, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via a June 2006 letter of the criteria for establishing an increased rating, including a TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in February 2007. Nothing more was required. The earlier effective date claims regarding limitation of motion of the right arm and numbness of the right side of the face and tongue with loss of salivary gland function arise from an appeal of the initial effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including those from the Social Security Administration (SSA). The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Timeliness of Substantive Appeal An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.200 (2012). A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect and appeal. 38 C.F.R. § 20.202 (2012). Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (2012). The question in this case is whether the Veteran submitted a timely Substantive Appeal of a September 2004 rating decision that initially granted service connection for: head and neck cancer, rated 30 percent disabling; facial and neck disfigurement, rated 10 percent disabling; radiation burns to chest, rated 0 percent disabling; and abdominal surgical scar, rated 0 percent disabling; all effective September 26, 2001. It is not disputed that the Veteran promptly submitted a Notice of Disagreement to the rating decision. The RO notified the Veteran of the decision on September 28, 2004, and the RO received a Notice of Disagreement with the disability ratings assigned on October 8, 2004. The RO issued a Statement of the Case on February 24, 2006 as to the ratings assigned. It is also not disputed that the Veteran's Substantive Appeal was received on May 2, 2006. The Board notes that the Substantive Appeal was signed and dated by the Veteran on April 26, 2006 and the enclosed authorization form was signed and dated by the Veteran on April 27, 2006. In this case, the one-year period from the date of mailing of the notification of the determination being appealed has expired. Thus, the Substantive Appeal must have been received within 60 days from the date the Statement of the Case was mailed. As the Statement of the Case was mailed to the Veteran on February 24, 2006, 60 days from that date is April 25, 2006. When any written document is required to be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305 (2012). In this case, the postmark for the Substantive Appeal and enclosed authorization form is not of record. However, the date of receipt of the documents by the RO is May 2, 2006. Thus, the postmark date may be presumed to have been five days earlier, or April 25, 2006, which would have resulted in a timely filing. 38 C.F.R. § 20.305 (2012). However, as noted above, the Substantive Appeal was signed and dated by the Veteran on April 26, 2006, one day after the expiration of the 60-day period. Moreover, the enclosed authorization form was signed and dated by the Veteran on April 27, 2006, and that is most likely the date the Veteran mailed the documents. Thus, although the postmark rule would have provided for a timely filing of the Substantive Appeal, the record in this case clearly shows that the Substantive Appeal was not timely filed. No communication that could constitute a Substantive Appeal was received within the requisite time period, and a request for extension to file the Substantive Appeal was not filed prior to the expiration of the appeal period. Thus, the Board finds that the RO did not receive any communication from the Veteran or his representative capable of being construed as a Substantive Appeal until May 2, 2006, more than 60 days following the issuance of the Statement of the Case, and more than one year following the notice of the September 2004 rating decision. Therefore, the Board concludes that the Veteran did not submit a timely Substantive Appeal as prescribed by law following the issuance of the February 24, 2006, Statement of the Case. Accordingly, the appeal is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Dates Generally, the effective date for a grant of service connection or an evaluation and award of compensation based on a claim for increase is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). Specific to an original claim for compensation, the effective date will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)-(b)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(b)(2) (2012). Specific to a claim for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). A claim for a TDIU is a part of a claim for increased disability compensation. 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) (2012). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.151(a) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2012). A report of examination or hospitalization will be accepted as an informal claim for increase if the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157(a) (2012). The date of VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1) (2012). The date of receipt of evidence from a private physician or layman or state or other institution will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(2)-(3) (2012). In the March 2007 rating decision on appeal, the RO increased the rating for facial and neck disfigurement status post radical neck dissection to 50 percent, granted service connection for limitation of motion of the right arm, granted service connection for numbness of the right side of the face and tongue with loss of salivary gland function, and granted a TDIU, all effective May 2, 2006. The RO assigned the effective date based on the date of receipt of the Veteran's claim for increase. Historically, the RO received the Veteran's original claim for service connection for carcinoma of the head and neck on September 26, 2001. The claim was ultimately granted by the Board in a September 2004 decision and implemented by the RO in a rating decision issued later that month. Given the earlier finding that the Veteran did not timely perfect an appeal of the September 2004 rating decision, that decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). Thus, an effective date of the original September 2001 claim is not warranted for the award of increased compensation, including the TDIU, or the grant of service connection currently on appeal. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Increased Rating, Including TDIU The Veteran essentially contends that he is entitled to an effective date of his initial 2001 claim for the award of increased compensation, to include the TDIU, because the disability was of the same severity at that time and prevented him from working. As discussed earlier, the RO received the Veteran's untimely Substantive Appeal on May 2, 2006. The RO construed that communication as a claim for increase and used that date as the date of receipt of the claim. Initially, the Board notes that the rating criteria pertaining to scars were revised effective October 23, 2008. However, those changes only apply to claims filed on or after that date and as such are not applicable to this claim. The regulations also specify that an award based on the revised rating criteria will not be effective before October 23, 2008. Thus, the Board will only consider the rating criteria in effect prior to October 23, 2008. Under Diagnostic Code 7800, a 50 percent rating is warranted for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. Under Note 1, Diagnostic Code 7800, the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) Scar 5 or more inches (13 or more cm.) in length. (2) Scar at least one-quarter inch (0.6 cm.) wide at widest part. (3) Surface contour of scar elevated or depressed on palpation. (4) Scar adherent to underlying tissue. (5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). After a careful review of the record, the Board finds that VA received a claim for an increased rating for facial and neck disfigurement status post radical neck dissection on May 2, 2006. There is no communication from the Veteran or his representative prior to May 2, 2006, and since the final September 2004 rating decision that can be construed as a claim for increase. The Board also finds that it is not factually ascertainable that the Veteran's facial and neck disfigurement status post radical neck dissection met the criteria for a 50 percent rating within the one-year period prior to May 2, 2006. There is no VA medical record dated during that time that establishes an increase in disability. There is no private medical record received during that time that establishes an increase in disability. Although there is medical evidence dated prior to May 2, 2006, including an October 2005 VA examination report, that arguably indicates that the Veteran's disability met the criteria for a 50 percent rating, that evidence was considered during the appeal of the initial evaluation which, as determined earlier, was not timely perfected. Thus, that evidence cannot be the basis of an earlier effective date in this case. Given the above, an effective date earlier than May 2, 2006, for a 50 percent evaluation for facial and neck disfigurement status post radical neck dissection is not warranted. With respect to the effective date for the TDIU, the Veteran's claim for a TDIU was received as part of his claim for increased disability compensation, which was received on May 2, 2006. There is no communication from the Veteran or his representative prior to that date and since the final September 2004 rating decision that can be construed as a claim for a TDIU. Thus, similar to the above analysis, the question becomes whether it is factually ascertainable that the Veteran met the criteria for a TDIU within the one-year period prior to the date of claim for increase. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). Except for an abdominal scar (rated at 0 percent), all of the Veteran's service-connected disabilities stem from the carcinoma of the head and neck. His combined evaluation for compensation is 80 percent from May 2, 2006. Thus, he met the percentage standards of 38 C.F.R. § 4.16(a) since that date. The remaining question is whether he has also been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After review, the Board finds that it is not factually ascertainable that the Veteran met the criteria for a TDIU within the one-year period prior to May 2, 2006. There is no objective evidence dated during that time that establishes that his service-connected disabilities precluded him from securing or following a substantially gainful occupation. As above, although there is evidence dated prior to May 2, 2006, that arguably indicates that he met the criteria for a TDIU, that evidence was considered during the appeal of the initial evaluation and cannot be the basis of an earlier effective date in this case. Thus, an effective date earlier than May 2, 2006, for a TDIU is not warranted. To the extent the record raised a claim for a TDIU at the time of the September 2004 rating decision, the Veteran's appeal for higher initial ratings for the residuals of the surgery for the carcinoma of the head and neck included a claim for a TDIU. As the Substantive Appeal of that rating decision has been found untimely, any raised claim for a TDIU ended with that untimely appeal. The Board is sympathetic to the Veteran's situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Accordingly, the Board finds that May 2, 2006, is the appropriate effective date for the 50 percent evaluation for facial and neck disfigurement status post radical neck dissection and the TDIU. See 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against each claim for any earlier effective date, the claims must be denied. Service Connection With respect to the grant of service connection for limitation of motion of the right arm and for numbness of the right side of the face and tongue with loss of salivary gland function, the Board finds that an earlier effective date is warranted. On October 8, 2004, the RO received a statement from the Veteran indicating that he has limited use of his right arm and is unable to salivate due to the surgery to remove his service-connected cancer. The RO acknowledged that statement as a claim for benefits in a September 2005 letter to the Veteran. Thus, the record establishes October 8, 2004 as the date of receipt of the claim. While the RO adjudicated other claims raised in the October 8, 2004, statement, the RO did not adjudicate the claims for disabilities of the right arm or face and tongue until the March 2007 rating decision. As claims for those disabilities remained pending until that time, an earlier effective date of October 8, 2004, is warranted. An even earlier effective date is not warranted, as there is no communication from the Veteran or his representative prior to October 8, 2004, and since the final September 2004 rating decision that can be construed as a claim for service connection for those disabilities. Although the Veteran did not mention the numbness of the right side of the face and tongue in the October 2004 statement, as that aspect of the disability appears to be related to the loss of salivary gland function, which he did mention, the Board finds that a claim for that manifestation was reasonably raised by the record at that time. In conclusion, the Board finds that an earlier effective date of October 8, 2004, is warranted for the grant of service connection for limitation of motion of the right arm and the grant of service connection for numbness of the right side of the face and tongue with loss of salivary gland function, both secondary to neck surgery. The Board notes that this grant does not affect the decision regarding the effective date for a TDIU. The October 8, 2004, claim for service connection for the above disabilities did not indicate that they prevented him from securing or following a substantially gainful occupation. Moreover, there is no communication or other lay or medical evidence received prior to May 2, 2006, that so indicates. Thus, the Board's decision regarding the effective date for a TDIU is undisturbed. (CONTINUED ON NEXT PAGE) ORDER As the Veteran did not submit a timely Substantive Appeal of a September 2004 rating decision, the benefit sought on appeal is denied. An effective date earlier than May 2, 2006, for a 50 percent evaluation for facial and neck disfigurement status post radical neck dissection is denied. An effective date earlier than May 2, 2006, for a TDIU is denied. An earlier effective date of October 8, 2004, for the grant of service connection for limitation of motion, right arm, secondary to neck surgery, is granted, subject to the provisions governing the award of monetary benefits. An earlier effective date of October 8, 2004, for the grant of service connection for numbness, right side of face and tongue, with loss of salivary gland function, secondary to neck surgery, is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs