Citation Nr: 18154647 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-47 195 DATE: November 30, 2018 ORDER Entitlement to an earlier effective date of September 28, 2016, but no earlier, for the grant of an increased rating of 50 percent for service-connected scars of the face, vertical mild frontal, vertical right supraorbital horizontal left malar region, is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran submitted a form construed as an intent to file a claim for an increased rating on September 28, 2016, and submitted a claim for a compensable rating for service-connected scars of the face within one year of that date. 2. The Veteran’s service-connected scars of the face are not shown to have increased in severity during the one-year period prior to September 28, 2016. CONCLUSION OF LAW The criteria for an effective date of September 28, 2016, but no earlier, for a higher rating of 50 percent for scars of the face, vertical mild frontal, vertical right supraorbital horizontal left malar region, have been met. 38 U.S.C.§ 5110; 38 C.F.R. §§ 3.155(b), 3.400(o)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1975 to June 1976. He also had an earlier period of active duty for training (ACDUTRA) from February 1973 to October 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date The Veteran has asserted that he is entitled to an effective date earlier than October 24, 2016 for a grant of a higher rating of 50 percent for service-connected scars of the face, vertical mild frontal, vertical right supraorbital horizontal left malar region. Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” When an application for disability compensation is received within one year of the date of the Veteran’s discharge or release from service, the effective date of such award shall be the day following the veteran’s release. 38 U.S.C. § 5110(b)(1). With respect to higher ratings, 38 C.F.R. § 3.400(o)(2) provides that where evidence of record dated within the one-year period preceding the date of receipt of the claim demonstrates a factually ascertainable increase in disability, the effective date of the award is the earliest date at which the increase was factually ascertainable. The Veteran was granted entitlement to service connection for a “scar, forehead and left thigh” rated as noncompensable from June 15, 1976, in a January 1977 rating decision. The Veteran later filed a claim for a higher rating for his service-connected scars, which was denied in a May 1994 rating decision. In an October 2002 rating decision, the RO granted a separate evaluation of 10 percent for the scar of the left anterior thigh. The Veteran filed another claim for a compensable rating for the scar of the face, now characterized as scar, vertical mild frontal, vertical right supraorbital horizontal left malar region, which was denied in a January 2003 rating decision. In a September 2004 rating decision, the RO again denied a compensable rating for the Veteran’s scars, vertical mild frontal, vertical right supraorbital horizontal left malar region. The Veteran appealed the denial to the Board. In an October 2006 decision, the Board denied the Veteran’s claim for a compensable rating for scars of the face. The Veteran appealed one of the issues denied in the October 2006 Board decision, entitlement to an effective date earlier than November 21, 2001, for the assignment of a 50 percent disability rating for post-traumatic headaches with migraine features, to the U.S. Court of Appeals for Veterans Claims (Court). In January 2008, his representative and VA’s Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting the Court vacate the Board’s decision on that issue and remand the case for readjudication. In the Joint Motion, the parties specifically noted that the Veteran was not pursuing the issue of entitlement to a compensable disability rating for scars of the face, to include vertical mild frontal, vertical right, supraorbital, and horizontal left malar region. The Joint Motion stated that these issues were not presently before the Court for review and should be considered abandoned. The Court issued an Order that same month granting the Joint Motion. As the Veteran abandoned his claim for a compensable rating for scars of the face, the October 2006 Board decision is final. 38 C.F.R. § 20.1100. In an October 24, 2016 claim, the Veteran filed a claim for an increased evaluation of the service-connected scars, vertical mild frontal left malar region. He stated, “grant effective date from 1982 to 2001.” In an April 2017 rating decision, the RO granted a higher rating of 50 percent for the service-connected scars, vertical mild frontal, vertical right supraorbital horizontal left malar region, effective October 24, 2016, the date of the Veteran’s claim. The RO also denied entitlement to an effective date earlier than October 24, 2016, for the increased rating of 50 percent for the facial scars. In a July 2017 notice of disagreement, the Veteran appealed the effective date of the award. He asserted that he should be entitled to a 50 percent rating for the facial scars “from 1976 (date after discharge).” As noted above, the October 2006 Board decision is final as to the issue of entitlement to a compensable rating for the service-connected facial scars. A review of the record does not show that the Veteran filed a claim for an increased rating of the facial scars from October 2006 to September 2016. For claims received prior to March 24, 2015, a “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2014). Effective March 24, 2015, a change in regulation requires claims to be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1 (p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Non-standard narrative communications/submissions - previously construed as informal claims - will be considered a request for an application for benefits. Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014) (where a claimant submits an informal claim, VA will deem it a request for an application for benefits). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic application - when an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims-submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant’s records. Id. The Veteran submitted a claim for an increased evaluation that did not specify the disability claimed, which was received on September 28, 2016. In a September 15, 2016 statement received on October 7, 2016, the Veteran requested re-evaluation of his case and discussed his facial scars. He stated that his facial scars caused him to become depressed when he looks in the mirror. He stated that surgeons told him there is no remedy. He stated he believed there was an administrative mistake because his claim was not filed properly. In an October 2016 letter, the RO informed the Veteran that his application form, received on September 28, 2016, was incomplete and the Veteran needed to specify the condition that he was claiming for increase. The letter stated that if VA received the completed application within one year from the date VA received his incomplete application, VA would consider the claim filed as of the date of receipt of the incomplete application. The Board finds that the September 28, 2016, incomplete application form for an increased rating was an intent to file a claim. The Veteran completed his claim for an increased rating for the scar of the face within one year of the form indicating an intent to file for a claim, as acknowledged by the RO in the October 2016 letter. Therefore, the correct date of the claim is September 28, 2016, and an earlier effective date of September 28, 2016, for the increased rating of 50 percent for scars of the face is warranted. As noted above, an earlier effective date may be warranted if there was a factually ascertainable increase in disability in the one-year period prior to the date the claim was received. The Veteran’s service-connected facial scars are rated under Diagnostic Code 7800. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, disfigurement of the head, face, or neck are rated based upon 8 characteristics of disfigurement: (1) scar 5 or more inches (13 or more cm. ) in length, (2) scar at least on-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.). Id., Note 1. A 10 percent disability rating is warranted with one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent disability rating is warranted 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. A maximum schedular 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. The Board finds that there is no evidence showing a factually ascertainable increase in disability in the one year prior to September 28, 2016. The Veteran’s VA treatment records do not note any treatment for the scar. The Veteran submitted a record from a plastic surgeon dated October 10, 2016, after the date of his claim. A December 2016 VA examination report addressing his scars noted that since 2004, the Veteran’s scars had remained stable. The December 2016 VA examination report showed that a higher rating of 50 percent was warranted for the scars of the face based on 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. Although the December 2016 exam indicates the scars have been stable since 2004, the Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence shows that the increase occurred earlier than one year prior to the date of the claim, then, the effective date is no earlier than the date of the claim. Therefore, as there is no evidence of record showing a factually ascertainable increase within the one year prior to September 28, 2016, the Board finds that an effective date prior to September 28, 2016 on this basis is not warranted. Finally, the Board notes that in the September 2016 statement, the Veteran asserted that he thought a mistake had been made in not guiding him in filing properly. However, he has not specifically claimed that there was clear and unmistakable error (CUE) in a prior decision, including the October 2006 Board decision that denied entitlement to a compensable rating for the scars of the face. The Board notes that prior RO decisions concerning an increased rating for the scars of the face were subsumed by the October 2006 Board decision addressing the issue. As the Veteran did not indicate which decision he asserts contained an error, and he did not provide any specificity regarding the kind of error he contends occurred, the Board finds that a valid motion for CUE has not been reasonably raised. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (holding that for a motion for CUE to be reasonably raised, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error); Crippen v. Brown, 9 Vet. App. 412, 420 (1996). In conclusion, the Board finds that prior to September 28, 2016, there were no pending claims for an increased rating nor was it factually ascertainable within one year of September 28, 2016 that the Veteran’s service-connected scars of the face had increased in severity. Therefore, the appropriate effective date of the Veteran’s claim is September 28, 2016, the date of his intent to file the increased rating claim. Accordingly, an effective date of September 28, 2016, but no earlier, for the grant of a higher rating of 50 percent for the service-connected scars of the face, is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel