Citation Nr: 21075278 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-24 957 DATE: December 20, 2021 ORDER Entitlement to an effective date prior to February 29, 2016 for the assignment of a disability rating in excess of 30 percent for discoid lupus erythematosus is denied. REMANDED Entitlement to an earlier effective date for a compensable disability rating for discoid lupus erythematous based on clear and unmistakable error in the July 2016 rating decision is remanded. FINDINGS OF FACT 1. The rating criteria for scarring was changed effective October 23, 2008; in order to qualify for application of the new criteria, the Veteran was required to request a review or increased rating. 2. The Veteran filed his claim for increased rating on February 29, 2016, the currently assigned effective date for the 50 percent disability rating. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 29, 2016, for the assignment of a disability rating in excess of 30 percent for discoid lupus erythematosus have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active-duty military service from June 1981 to June 2001, including service in Southwest Asia. Entitlement to an effective date prior to February 29, 2016 for the assignment of a disability rating in excess of 30 percent for discoid lupus erythematosus The Veteran is service connected for discoid lupus erythematosus (lupus) which is rated based on the manifestations of scarring and disfigurement of his face and body. At the time service connection was granted, effective July 2001, a 10 percent disability rating was assigned. This was increased to a 30 percent disability rating effective August 30, 2002. He filed for an increased rating on February 29, 2016 and a 50 percent disability rating has been awarded as of that date. The Veteran contends that an earlier effective date is warranted for the 50 percent disability rating, particularly in light of changes to the rating criteria for scarring and skin disabilities which were effective in October 2008. The Veteran was awarded a 10 percent disability rating, effective July 2001, and a 30 percent disability rating, effective August 2002, in a Supplemental Statement of the Case (SSOC) issued in April 2003. (See SSOC, 04/07/2003.) That same month, he filed a statement indicating that he was satisfied with the rating and would not continue his appeal. (See Statement in Support, 04/18/2003.) In February 2016, the Veteran filed a statement of intent to file a claim, preserving the date of receipt of the statement as the effective date of the forthcoming claim. (See Notification Letter, 02/29/2016.) He then filed for an increased disability rating for his lupus on March 18, 2016. An examination in April 2016 provided information on the Veteran's current symptoms and disability picture. (See C&P Exam, 05/03/2016.) In June 2016 a rating decision assigned a 50 percent disability rating for lupus based on scarring, effective March 2016, which was subsequently modified to February 29, 2016. (See Rating Decision, 06/14/2016.) Except as otherwise provided, the effective date of an increase in disability rating will be the date of receipt of claim or the date entitlement to a higher rating arose, whichever is later. See generally, 38 C.F.R. § 3.400 (o). The date that entitlement arose for an increase will be the earliest date at which it is feasibly ascertainable based on the evidence that an increase in disability occurred if the claim for increase is received within one year of that date. At the Board hearing in March 2021, the Veteran's representative asserted that the scars on his head from lupus, which are the basis of the disability rating on appeal, were present since he was on active duty. (See Hearing Transcript, 03/09/2021.) Those scars had not widened or lengthened, although there was also no measurement made of them prior to the VA examination in 2017. They had been the same the entire time and had met four or five of the characteristics of disfigurement since he was on active duty. The Veteran's representative contended that they had therefore met the criteria for a 50 percent disability rating since the date that the regulations were changed in October 2008. The Board notes that the 10 percent rating, effective July 2001, and the 30 percent rating, effective August 2002, were both awarded on appeal of an assigned 0 percent (noncompensable) rating, by the April 2003 SSOC. The increased rating was not based on a change in the Veteran's symptoms or overall disability picture between July 2001 and August 2002. Rather, the rating criteria for scars and skin disabilities was changed effective August 2002 and the Veteran's disability picture was more appropriately described by the 30 percent criteria under the new regulations. Because the Veteran's skin rating was on appeal at the time the rating criteria were changed, the regulation specifically required that he be rated based on the more favorable criteria that had been adopted. The rating criteria for skin and scars, effective October 2008, under Diagnostic Code 7800 provide ratings for disfigurement of the head, face, or neck. Where there are two or three characteristics of disfigurement, a 30 percent disability rating is assigned. 38 C.F.R. § 4.118. Where there are four or five characteristics of disfigurement, a 50 percent disability rating is assigned. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is 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.). The Board notes that additional changes were made to the rating criteria for scars and skin disabilities under 38 C.F.R. § 4.118, effective August 13, 2018. However, the rating criteria with respect to Diagnostic Code 7800 were not changed and none of the changes made are relevant with respect to the Veteran's disability picture. With regard to the change in the rating criteria which took effect in October 2008, the change was automatically applicable to any relevant pending claims received prior to October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008.) The regulation provided that a veteran whom VA had rated before October 2088 date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 could request review under these clarified criteria, irrespective of whether his or her disability had worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). The question is whether it is to be applied retroactively in this case, where the claim for increased rating was not filed until February 2016. The Board notes that the Veteran's claim for increase, filed more than 7 years after the new rating criteria became effective, was not based on a request to review the rating based on the recent rulemaking. Rather, it was based on a worsening of the subjective symptoms, particularly itching. As such, this claim for increase falls under the normal parameters of the effective date rule, with the earliest possible date being one year prior to the date of the claim for increase if it could be ascertained that worsening was shown as of that date. Otherwise, the date of claim is the earliest possible effective date which can be assigned. 38 C.F.R. § 3.400. In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400 (o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. Likewise, it would not apply here where the disability met the criteria for the higher rating since the date of service connection, but the higher rating was made possible only by a change in the regulations. In light of all the considerations above, the Board finds that an earlier effective date for the assignment of the 50 percent rating for lupus is not warranted. The current effective date of February 29, 2016 is the date that the informal claim for increase was received. This is consistent with the provisions of 38 C.F.R. § 3.400, that the effective date is the date of claim or the date that entitlement to an increased rating was ascertainable. In this instance, the entitlement to an increased rating was not ascertainable until the November 2017 VA examination. The claim for an earlier effective date is denied. REASONS FOR REMAND Entitlement to an earlier effective date for a disability rating higher than 30 percent for discoid lupus erythematous based on clear and unmistakable error (CUE) in the July 2016 rating decision is remanded. At the Board hearing in March 2021, the Veteran's representative asserted that the July 2016 rating decision included clear and unmistakable error when it failed to award an effective date prior to July 2016 for the increased rating for lupus. While the Board recognizes the claim for CUE as asserted by the Veteran and his representative, any such claim must first be considered by the Agency of Original Jurisdiction (AOJ) before the Board can adjudicate it. This aspect of the claim is therefore remanded to the AOJ for appropriate consideration. The matters are REMANDED for the following action: Consider and adjudicate the claim of CUE in the July 2016 rating decision, as articulated by the Veteran's representative at the March 2021 hearing. This should include a discussion of the applicability of an earlier effective date for the assignment of a 50 percent disability rating, particularly in connection with the rating criteria changes to 38 C.F.R. § 4.118 which were effective in October 2008. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.