Citation Nr: 19152802 Decision Date: 07/09/19 Archive Date: 07/08/19 DOCKET NO. 16-36 028 DATE: July 9, 2019 ORDER Entitlement to an effective date earlier than December 27, 2013 for the grant of an increased 10 percent rating for scar, scalp, with retained foreign body, is denied. Entitlement to an effective date earlier than December 27, 2013 for the grant of service connection for painful scar, scalp, superior right side of head, is denied. FINDINGS OF FACT 1. The June 1974 VA decision reducing the Veteran’s rating for his service-connected scalp scar was not appealed and became final. 2. The claim for an increased rating for scalp scar was received on December 27, 2013. It is not factually ascertainable that an increase in disability had occurred within one year of the receipt of the December 27, 2013 claim. 3. The claim which was the basis for the grant of service connection for painful scar of the scalp was received on December 27, 2013, more than one year following separation from service. CONCLUSIONS OF LAW 1. The June 1974 decision reducing the Veteran’s rating for his service-connected scar of the scalp is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. The criteria for entitlement to an effective date earlier than December 27, 2013, for the grant of an increased 10 percent rating for scar, scalp, with retained foreign body, have not been met. 38 U.S.C. § 1155, 5110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400(o). 3. The criteria for entitlement to an effective date earlier than December 27, 2013, for the grant of service connection for painful scar of the scalp, superior right side of head, have not been met. 38 U.S.C. §§ 5101(a), 5110(a); 38 C.F.R. §§ 3.1, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from April 1966 to April 1968. The Veteran served in the Republic of Vietnam and has been awarded the Purple Heart. The Veteran died in January 2017, and the Appellant is the surviving spouse. 1. Entitlement to an effective date earlier than December 27, 2013 for the grant of service connection for painful scar, scalp, superior right side of head 2. Entitlement to an effective date earlier than December 27, 2013 for the grant of an increased 10 percent rating for scar, scalp, with retained foreign body Procedural History In a July 1969 rating decision, the Veteran was awarded service connection for a scar on his scalp from a shrapnel wound sustained as a result of enemy action in July 1967. The Veteran was assigned a 10 percent rating, effective April 1968, immediately after his separation from service. In June 1974, the Veteran’s rating for his scar was reduced to noncompensable (zero percent) because the Veteran did not attend a VA medical examination of the scar. On December 27, 2013, VA received correspondence from the Veteran requesting an increased rating for his scalp scar. The Veteran attended a VA scars/disfigurement examination in April 2014. As a result of the findings at the examination, the Veteran was awarded an increased rating of 10 percent under Diagnostic Code 7800 for his scar of the scalp with a retained foreign body. The Veteran was also granted service connection and assigned a separate 10 percent rating under Diagnostic Code 7804 for painful scar of the scalp, superior right side of head. The ratings were assigned, effective December 27, 2013, the date the Veteran’s claim for an increased rating was received. The Appellant contends that the Veteran is entitled to an effective date earlier than December 27, 2013 for the award of an increased 10 percent rating for scar of the scalp with retained foreign body, and for the award of service connection for his painful scar of the scalp, superior right side of the head. Analysis As an initial matter, the Board notes that the June 1974 decision reducing the Veteran’s rating for his service-connected scalp scar from 10 percent to noncompensable was not appealed and became final. The Veteran did not appeal this decision, and new and material evidence was not received within one year of issuance of notice thereof. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. After the June 1974 decision, the Veteran’s next communication concerning the rating for his scar was not received until December 2013. In July 2016, the Veteran submitted a statement indicating that he was never notified of the missed VA examination which resulted in the June 1974 reduction in rating. However, the Board notes that the Veteran was notified in June 1974 that his rating was reduced based on his failure to report for a scheduled examination, and there is no indication that this correspondence was sent to the incorrect mailing address. Despite being properly notified of his reduction in rating, the Veteran did not appeal this decision, and it accordingly became final. Regarding the claim for an earlier effective date for the award of an increased 10 percent rating for service-connected scar, scalp, with retained foreign body, the effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, the VA received the Veteran’s claim for an increased rating for the scar on his scalp on December 27, 2013. Therefore, entitlement to an increased rating prior to that date requires evidence of a factually ascertainable increase in disability to warrant a 10 percent disability rating during the one-year period from December 2012 to December 2013. However, it is not factually ascertainable that an increase in the Veteran’s scar, scalp, with retained foreign body, had occurred within one year of the receipt of the Veteran’s claim. There is no objective evidence in the record which identified any increase in disability one year prior to the December 2013 claim. The date of the April 2014 VA examination is the earliest date in which it was factually ascertainable that an increase in disability had occurred. Accordingly, the effective date of the increased 10 percent rating was appropriately assigned by the date of receipt of the claim. For these reasons, an effective date prior to December 27, 2013, is not warranted for the assignment of a 10 percent rating for scar, scalp, with retained foreign body. Regarding the claim for an earlier effective date for the award of service connection for painful scar, scalp, superior right side of head, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date 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. An application for VA compensation must generally be a specific claim in the form prescribed by the Secretary, i.e., VA Form 21-526. 38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151(a). However, any communication received from the claimant (or specified individuals) that indicates an intent to apply for one or more VA benefits, and identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The words “claim” and “application” are defined as 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). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than December 27, 2013, for the grant of service connection for painful scar of the scalp, superior right side of head. Applying the pertinent VA regulation (38 C.F.R. § 3.400) to the facts, it is clear that an effective date earlier than December 27, 2013 is not warranted for the grant of service connection for painful scalp scar. The record contains no document or correspondence dated before December 2013 that constitutes an application for service connection prior to that date. Therefore, entitlement to an effective date earlier than December 27, 2013 is not warranted. The preponderance of the evidence is against the claims for an effective date prior to December 27, 2013 for the grant of an increased 10 percent rating for scar, scalp, with foreign body, and the grant of service connection for painful scar of the scalp, superior right side of head. Thus, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board is grateful for the Veteran’s honorable service in the Republic of Vietnam, and sympathetic to the Appellant’s claim. However, the Board is bound by the law and regulations as written. The Board is without authority to grant benefits simply because it might perceive a result to be more equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, 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.