Citation Nr: 20021971 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-55 550 DATE: March 30, 2020 ORDER The issue of an effective date prior to August 19, 2010, for the grant of service connection for facial scar residuals is dismissed. An effective date of August 19, 2010, for the grant of service connection for a traumatic brain injury (TBI) is granted. An effective date of August 19, 2010, for the grant of service connection for a painful left cheek scar is granted. An effective date prior to November 7, 2016, for the award of a 30 percent rating for facial scar residuals is denied. FINDINGS OF FACT 1. A November 2011 rating decision granted service connection for a left zygoma fracture and left cheek scar residuals (Board recharacterized as “facial scar residuals”) and assigned a noncompensable rating effective August 19, 2010; a timely notice of disagreement (NOD) was not filed challenging the effective date of the grant of service connection for facial scar residuals, and no new and material evidence was received within the appeal period. 2. The October 1984 rating decision denying service connection for a facial scar and facial injury was final. 3. On August 19, 2010, VA received a VA Form 21-526 which contained a claim for entitlement to service connection for concussion of the head and injury to left side of head and face. 4. On November 7, 2016, VA received a VA Form 21-526EZ which contained a claim for entitlement to service connection for TBI and an application for an increased rating for facial scar residuals. 5. The weight of the competent and probative evidence is against finding factually ascertainable evidence in the record that the Veteran’s facial scar residuals increased in severity within one year prior to November 7, 2016. CONCLUSIONS OF LAW 1. The issue of an effective date prior to August 19, 2010, for the grant of service connection for facial scar residuals is dismissed. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. § 20.1103. 2. The criteria for an effective date of August 19, 2010, for the grant of service connection for TBI have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 3. The criteria for an effective date of August 19, 2010, for the grant of service connection for painful left cheek scar have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to November 7, 2016, for the award of a 30 percent rating for facial scar residuals have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1961 to April 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. Dismissal 1. The issue of an effective date prior to August 19, 2010, for the grant of service connection for facial scar residuals. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for facial scar residuals. August 2017, NOD; January 2020, Hearing transcript. After review of the record, the Board finds that the appeal for an earlier effective date for the grant of service connection for facial scar residuals must be dismissed. A November 2011 rating decision granted service connection for facial scar residuals and assigned a noncompensable rating effective August 19, 2010; a timely NOD was not filed challenging the effective date of the grant of service connection for facial scar residuals, and no new and material evidence was received within the appeal period. The November 2011 rating decision therefore became final. See 38 C.F.R. § 20.1103. The United States Court of Appeals for Veterans Claims (Court) has held that once a rating decision establishing an effective date becomes final, the only way to revise the outcome is by demonstrating clear and unmistakable error in the decision. Rudd, 20 Vet. App. at 299-300. Stated differently, the Court found there can be no freestanding claim for an earlier effective date. As is the case in the current appeal, the prior determination became final, the claim for an earlier effective date is freestanding, and the appeal must be dismissed. Id. Effective Date Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57, 660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to in this section. A “claim” is defined broadly to include 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) (2014). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014).   2. An effective date prior to November 7, 2016, for the grant of service connection for TBI. 3. An effective date prior to November 7, 2016, for the grant of service connection for a painful left cheek scar. The Veteran contends he is entitled to an effective date prior to November 7, 2016 for the grant of service connection for TBI and a painful left cheek scar. August 2017, NOD; January 2020, Hearing transcript. A February 2017 rating decision granted service connection for TBI and a painful left cheek scar, assigned a 70 percent rating for TBI and a 10 percent rating for painful left cheek scar effective November 7, 2016. After review of the relevant evidence and applying the above laws and regulations, the Board finds that an effective date of August 19, 2010, but not earlier, for the grant of service connection for TBI and a painful left cheek scar is warranted. On August 9, 1984, VA received VA Form 21-526 which contained an original claim of service connection for a facial scar and facial injury. August 1984, VA Form 21-526. VA scheduled an examination and requested that the Veteran provide recent medical records regarding his facial injury and scar. The Veteran did not appear at the VA examination and did not provide recent medical records of his facial injury and/or scar. An October 1984 rating decision denied service connection for a facial scar because the evidence of record was insufficient, and the Veteran failed to prosecute the claim; a timely NOD was not filed, and no new and material evidence was received within the appeal period. The October 1984 rating decision, accordingly, became final. See 38 C.F.R. § 20.1103. On August 19, 2010, VA received VA Form 21-526 which contained an original claim of service connection for “concussion from head injury” and “injury to left side of head and face,” in addition to other claims. A November 2011 rating decision granted service connection for facial scar residuals but did not consider the “concussion” claim. On November 7, 2016, VA received VA Form 21-526EZ which contained a claim of service connection for moderate TBI. November 2016, VA Form 21-526EZ. At a January 2020 hearing, the Veteran testified that the scar on his left cheek has been painful since 1963. January 2020, Hearing transcript. The Board finds the Veteran reasonably raised the issue of service connection for TBI and painful left cheek scar in his August 2010 claim. The Board acknowledges that the RO granted service connection for facial scar residuals based on the August 2010 claim; however, the Veteran was clearly seeking service connection for concussion related symptoms, namely a TBI, and all claims regarding injuries to the left side of his face and head, including a painful left cheek scar. As the RO failed to address same, the TBI and painful facial scar claims remained pending after the November 2011 rating decision until service connection was granted in the February 2017 rating decision. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (finding the Board is obligated to consider all claims reasonably raised by the record). The Board, accordingly, finds an effective date of August 19, 2010, but not earlier, for the grant of service connection for TBI and a painful left cheek scar is warranted. 4. Entitlement to an effective date prior to November 7, 2016, for the award of a 30 percent rating for facial scar residuals. The Veteran contends that he is entitled to an effective date prior to November 7, 2016, for the 30 percent rating for residual facial scars. January 2020, Hearing transcript; November 2018, VA Form 9. For claims due to an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Diagnostic Code 7800, which applies to scars of the head, face, or neck, provides for a 10 percent rating with one characteristic of disfigurement; and a 30 percent rating with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (including the cheeks), or with two or three characteristics of disfigurement. The eight characters of disfigurement, for purposes of evaluation under DC 7800, are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds an effective date prior to November 7, 2016, for the award of a 30 percent rating for facial scar residuals is not warranted. On November 7, 2016, VA received a claim for a compensable rating for service-connected facial scar residuals. A February 2017 rating decision assigned a 30 percent rating effective November 7, 2016, the date VA received the claim for an increased rating. A February 2017 VA examination and accompanying photograph of the Veteran’s face indicates a scar on the left cheek that measures 1.3 cm in length, 0.5 cm in width. The VA examiner stated the scar is stable, is not hyper- or hypo-pigmented, adherent to underlying tissue. Though the underlying soft tissue is intact, the scar is depressed on palpation, has an abnormal texture, and is painful. February 2017, VA examination. At the January 2020 hearing, the Veteran did not discuss facial scar residuals other than the scar being painful. January 2020, Hearing transcript. The Board finds that the weight of the competent and probative evidence is against finding a factually ascertainable date at which the Veteran’s facial scar residuals warranted a 30 percent rating within one year prior to November 7, 2016. The Board notes there are no medical records in the claims file concerning facial scar residuals within the one-year period prior to November 7, 2016. In this regard, the Veteran’s treatment records do not demonstrate symptoms that would warrant a compensable rating within the one-year period prior to November 7, 2016. Additionally, the Board has not discovered communication prior to November 7, 2016, and subsequent to a November 2011 rating decision granting service connection for facial scar residuals, which might be construed as a claim (formal or informal) for an increased rating for facial scar residuals. The Board, accordingly, finds an effective date prior to November 7, 2016, for the increased rating for facial scar residuals is not warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.