Citation Nr: 19136992 Decision Date: 05/14/19 Archive Date: 05/13/19 DOCKET NO. 15-39 056 DATE: May 14, 2019 ORDER An effective date earlier than October 2, 2013, for the assignment of a 10 percent rating for residuals of left face contusion is denied.   FINDINGS OF FACT 1. A June 1972 rating decision granting noncompensable service connection for residuals of a left face contusion was not appealed. 2. There is no earlier claim for increase than the October 2, 2013 claim. 3. It is not factually ascertainable prior to October 2, 2013, that entitlement arose to a 10 percent rating for residuals of a left face contusion. CONCLUSIONS OF LAW 1. The June 1972 rating decision that granted noncompensable service connection for residuals of a left face contusion is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for assignment of an effective date prior to October 2, 2013, for the award of a 10 percent disability rating for residuals of a left face contusion, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1969 to May 1971. This claim arises from a May 2014 rating decision. In October 2018, the Veteran testified at a Board videoconference hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An effective date earlier than October 2, 2013, for the assignment of a 10 percent rating for residuals of a left face contusion. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Otherwise, the effective date may be assigned beginning from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). Analysis The Veteran contends the increased rating granted by the RO in May 2014 should be retroactive to May 1971, when he filed his original claim for service connection, because he was in the same condition in May 1971 that he was in May 2014. The evidence of record shows the Veteran originally filed a claim of service connection for a facial contusion in October 1971. The RO issued a June 1972 rating decision, granting noncompensable service connection effective to May 14, 1971, which was the day following separation from service. The Veteran was notified of the June 1972 rating decision by letter later that month, which was mailed to his then current mailing address. Thereafter, no notice of disagreement or new and material evidence was received from the Veteran. As the Veteran did not appeal the June 1972 decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a VA Form 21-526EZ in October 2013. In a May 2014 rating decision, the RO granted an increased rating to 10 percent, effective October 2, 2013, the date of the claim for increase. In this case, the Board finds that there is no basis upon which to award an earlier effective date than October 2, 2013, the date already assigned. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board acknowledges the Veteran’s contention that he should be awarded an earlier effective date because he has suffered from the same symptoms related to his facial contusion since 1971. Although the Board is sympathetic to the Veteran’s contention, it is not authorized to grant an earlier effective date on this basis. There is no earlier claim for increase prior to October 2, 2013. After the June 1972 decision, the only other correspondence pertained to education benefits. Additionally, the record does not reflect, nor does the Veteran contend, that any evidence shows the increase to 10 percent was factually ascertainable in the one year prior to the October 2013 claim for increase. In fact, the Veteran contends the increase occurred many years prior. Therefore, an earlier effective date is warranted based on the 1-year look back period. See 38 C.F.R. § 3.400(o)(2); Gaston, 605 F.3d at 980. To the extent the Veteran believes there was clear and unmistakable error (CUE) in the June 1972 rating decision, he should request reversal or revision of that decision with a submission to the RO. Presently, the Board does not have jurisdiction over any CUE request. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Thus, as the preponderance of the evidence is therefore against the claim for an effective date prior to October 2, 2013, for the grant of an assignment of a 10 percent rating for residuals of a left face contusion; the benefit of the doubt doctrine is not applicable; and an earlier effective date is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becton, 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.