Citation Nr: 18143231 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-31 391A DATE: October 18, 2018 ORDER Based on the discussion below, VA is instructed to update the Veteran's disability records, including his rating decision codesheet, to reflect that the effective date of the grant of service connection for his left foot scar, a residual of his fractured left foot, is September 13, 1994. The disability rating for the period from September 13, 1994 to May 20, 2010 is 0 percent. This correction is solely for administrative clarity, and it confers no new benefit upon the Veteran. The appeal for entitlement to an effective date prior to May 21, 2010 for the grant of service connection for a left foot scar, a residual of a fractured left foot, is dismissed. FINDING OF FACT No questions of fact or law remain before the Board. CONCLUSION OF LAW The Board does not have jurisdiction. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1962 to February 1964. The claim comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision of the Department of Veterans Affairs (VA). VA granted the Veteran a total disability based upon individual unemployability effective May 23, 2001. Issue: Entitlement to an effective date prior to May 21, 2010 for the grant of service connection for a left foot scar, a residual of a fractured left foot In November 1994, VA granted service connection for "residuals of left foot fracture," effective September 13, 1994. The rating decision stated: "Physical examination indicated an intact vascular supply. Sensory deficit was noted on the left superficial peroneal nerve cutaneous distribution and most notably the intermediate dorsal cutaneous nerve. He has symptoms in the toes which correspond to this nerve distribution distal to the ankle. Range of motion of all joints in the foot was within normal limits and no other gross abnormalities were noted. A one inch long depressed scar was noted over the left midfoot area which was the site of the injury" (emphasis added) The "residuals," as described above, included both the nerve and scar considerations. Thus, VA service connected the scar, albeit without an explicit separate noncompensable rating, effective September 13, 1994. VA did not grant a separate rating because the scar did not merit a compensable rating under the regulations applicable in 1994. The Veteran appealed the noncompensable "residuals" rating, and the Board decided the issue in April 2010. In that decision, the Board stated on page 12: "While the Veteran has testified as to having a tender left foot scar and requested a separate rating for such, the objective evidence of record, particularly the January 1997 VA examination report, describes a well-healed scar with no pain on palpation or adherence. As such, a separate, compensable rating is not for consideration in this matter." The Board granted a 10 percent rating for the “residuals” from September 13, 1994 to January 13, 2000. VA implemented the Board's rating in October 2011. Prior to the Board's decision, VA, in October 2009, increased the rating of the "residuals" to 20 percent disabling, effective January 14, 2000, the date of an increased rating claim. In response, the Veteran submitted a VA Form 9, which VA received on May 21, 2010, noting that he had a scar on his left foot. VA, given that it had previously service connected the scar, incorrectly construed this statement as a service connection claim instead of as an increased rating claim. Unfortunately, this error carried forward when VA, in September 2013, granted service connection for "scar, left foot," effective May 21, 2010, the date VA received the VA Form 9 cited above. This grant is a nullity because VA had already service connected the scar in November 1994. The Veteran, with the assistance of counsel, appealed the effective date of this "new" grant of service connection. As counsel has represented the Veteran since January 14, 2009, he knew, or should have known, the Board considered the scar issue in April 2010 before embarking on this appeal. It appears counsel desired to relitigate the issue of a compensable rating under the guise of an erroneous earlier effective date claim. Notwithstanding this, VA is also culpable because it incorrectly processed the claim received on May 21, 2010. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. This is such a case, so the Board, for the reasons above, considers this matter moot. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel