Citation Nr: 21010264 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-09 939 DATE: February 24, 2021 ORDER Entitlement to an earlier effective date prior to January 12, 2012 for the assignment of a separate 10 percent rating for right anterior breast scar to include whether there was clear and unmistakable error (CUE) in the April 1970 and June 1979 rating decisions is denied. FINDINGS OF FACT 1. The Veteran filed a claim for increase of his service-connected scar disabilities on January 12, 2012; a November 2012 rating decision granted a separate 10 percent rating for the Veteran’s right anterior breast scar effective January 12, 2012. 2. There was no informal claim, formal claim, or written intent to file a claim for an increased rating for the Veteran’s right anterior breast scar following a final June 1979 rating decision and prior to January 12, 2012. 3. The April 1970 and June 1979 rating decisions are final as to the assigned disability ratings for the Veteran’s left hand and right anterior breast scars. 4. The Veteran has failed to set forth sufficient errors of fact or law, or establish that the result would have been manifestly different but for the alleged errors as it pertains to the rating decisions issued in April 1970 and June 1979. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to January 12, 2012, for the assignment of a separate 10 percent rating for right breast scar have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400 (2020). 2. The motions for revision based on CUE in the April 1970 and June 1979 rating decisions are denied. 38 U.S.C. §§ 5101, 5109A, 7105(2012); 38 C.F.R. § 3.105 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to December 1969. The Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in January 2018 and September 2019 for additional development. It now returns for further appellate review. A discussion of the procedural history is necessary to understand the nature of the Board’s jurisdiction. In January 2018, the Board remanded this matter to the agency of original jurisdiction (AOJ). At that time, the Board remanded the instant claim for an earlier effective date for a separate rating for right breast scar and referred the issue of whether there was CUE in April 1970, April 1971, or June 1979 rating decisions in failing to award a separate compensable rating for right breast scar. See January 2018 Board Remand. That matter was remanded to the RO for issuance of a statement of the case (SOC) consistent with Manlincon v. West, 12 Vet. App. 238 (1999). In August 2019, the AOJ issued a supplemental SOC (SSOC) but failed to adjudicate or address the referred CUE claim. Accordingly, the Board remanded the claim in September 2019 to ensure compliance with the January 2018 Board remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998). See September 2019 Board Remand. The Board specifically instructed the AOJ to adjudicate the Veteran’s CUE claim and the earlier effective date was remanded as inextricably intertwined with the CUE claim. Id. In July 2020, the AOJ issued a supplemental statement of the case (SSOC) with addressing the earlier effective date claim and the CUE claim as one issue and returned the matter to the Board. Generally, earlier effective date and CUE claims are separate claims. In fact, when the Board remands a claim to the AOJ for additional development and re-adjudication, that claim is only returned to the Board for further appellate review if the AOJ denies a benefit sought on appeal. In such situations, the AOJ issues an SSOC before remitting the appeal to the Board. This is not the same procedure when the Board refers a claim to the AOJ. A referred claim is one that the AOJ has not yet developed or adjudicated, and is not then pending before VA. The only method by which a referred claim comes to the Board is if the veteran perfects an appeal subsequent to the AOJ’s adjudication in the first instance. The perfection of an appeal confers jurisdiction to the Board to review the claim de novo. However, because the AOJ erroneously treated the CUE claim as a remanded issue, the Veteran, understandably, did not perfect an appeal for the CUE claim. Given the obvious confusion regarding this claim, and in the interest of fairness and due process, the Board finds that VA tacitly waived the regulatory requirement to perfect an appeal with regard to the CUE claim. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). As such, the CUE claim will be addressed in the instant decision. 1. Earlier Effective Date The Veteran seeks an effective date prior to January 12, 2012 for the assignment of a separate compensable rating for his service-connected right breast scar. See December 2012 Notice of Disagreement (NOD). Specifically, he contends “it is my belief that the additional 10% entitlement noted in your decision should be retroactive to the date of my discharge which was December 23, 1969.” Id. Legal Criteria VA laws and regulations provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. The provisions of 38 C.F.R. § 3.157 (which, as of September 25, 2014, have been removed) commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims “for increase or to reopen” where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining an appropriate effective date for an increased rating under the effective date regulations 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). For claims filed prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. See 38 C.F.R. § 3.155(a). For claims filed on or after March 24, 2015, however, VA requires that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Factual Background By way of history, the Veteran was injured during active service in January 1968 as a result of an electric fire and sustained third degree burns to his left hand and anterior right chest. See January 1968 Letter from Capt. R.J.V. in service treatment records (STRs)-Medical. In January 1970, the Veteran filed a claim for compensation for his injuries to his left hand and right chest due to an electrical fire. See January 1970 VA Form 21-526. In an April 1970 rating decision, the Veteran was granted service connection for scars, burns, third degree of the left thumb, second finger, third finger, and right lower anterior chest effective December 23, 1969 and assigned a combined 30 percent rating under Diagnostic Codes (DC) 5222-7801. See April 1970 Rating Decision. The Veteran was provided an initial examination for his service-connected burn scar disabilities in March 1971. See November 1970 VA Form 21-5207a; March 1971 VA Examination. In a confirmed rating decision dated April 1971, the VA confirmed the April 1970 rating decision and indicated that there was no change in the Veteran’s service-connected burn scars, third degree, left thumb, second and third finger, and right chest disability. See April 1971 VA Form 21-6789. The Veteran did not appeal or disagree with the initial April 1970 or April 1971 decisions assigning a 30 percent rating for his service-connected burn scars of the left hand and right anterior chest. In April 1979, the Veteran filed an informal claim for reevaluation of his service-connected disability. See April 1979 Informal Claim. The Veteran underwent a VA examination in June 1979. Consequently, a June 1979 rating decision increased the Veteran’s rating from 30 percent to 40 percent for his service-connected burn scars of the left hand and right anterior chest. See June 1979 Rating Decision. The Veteran did not appeal this decision or submit additional evidence within one year. On review of the claims file, there was no further medical evidence or claim for increase until January 12, 2012, when the Veteran filed an increased rating claim in excess of 40 percent for his service-connected burn scars of the left hand and right chest. See January 2012 VA Form 21-526b. The Veteran underwent a VA examination in connection with his claim in March 2012. See March 2012 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ). The examination revealed right chest anterior scar which was less than deep partial thickness which measured 19 centimeters (cm) x 4 cm. Id. Consequently, the AOJ granted a separate 10 percent rating for the Veteran’s right anterior chest scar in the November 2012 rating decision. See November 2012 Rating Decision. The AOJ assigned the 10 percent rating based on VA examination findings that the Veteran’s right anterior chest scar was deep non-linear measuring at least 39 square cm but less than 77 square cm under DC 7804 effective January 12, 2012. Id. The Veteran filed an NOD in December 2012 disagreeing with the assigned effective date of the separate 10 percent rating under DC 7804 for his service-connected right anterior chest burn scar, thus initiating this appeal. See December 2012 NOD. Analysis The VA received the Veteran’s increased rating claim on January 12, 2012, for his service-connected burns scars of the left hand and right chest. See January 2012 VA Form 21-526b. In a November 2012 rating decision, the AOJ granted a separate 10 percent rating for the Veteran’s right anterior chest scar and assigned an effective date of January 12, 2012. See November 2012 Rating Decision. The first question is what is the date of claim which resulted in the separate 10 percent rating for the Veteran’s right anterior chest scar. As noted above, the Veteran did not appeal the April 1970, April 1971, or June 1979 rating decisions. He was notified of the disability rating assigned for his third degree burn scars of the left hand and right chest and his appellate rights. However, he did not appeal those rating decisions. Thus, the April 1970, April 1971, and June 1979 rating decisions became final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d); 20.200, 20.302, 20.1103. Accordingly, because the April 1970, April 1971, or June 1979 rating decisions became final based on the evidence of record at the time, an earlier effective date prior to June 1979 for the assignment of a separate rating for right anterior chest scar is unavailable and the decisions are not subject to revision in the absence of CUE in the decision, which will be discussed in the next section. 38 U.S.C. § 7105; see Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The earliest claim for increase after the June 1979 rating decision, is the January 12, 2012 VA Form 21-526b. There was no correspondence in the claims file prior to January 12, 2012, which could be construed as a claim for increase or an intent to file a claim for increase. Additionally, the Board notes that there was no report of examination or hospitalization or clinical evidence which could serve as an informal claim for increase pursuant to 38 C.F.R. § 3.157 received prior to January 12, 2012. As such, the Board finds that January 12, 2012, application is the earliest date of claim. The remaining question is when did the Veteran meet the criteria for a separate 10 percent rating. 38 C.F.R. §§ 3.155, 3.400(o)(2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose)(38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable)(38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Veteran was assigned a separate 10 percent rating for the Veteran’s right anterior chest scar pursuant to 38 C.F.R. § 4.118, DC 7801. The criteria for rating skin disabilities are set forth in 38 C.F.R. § 4.118, DC 7801, which were revised and amended several times including effective on October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). Under DC 7801 in effect during the November 2012 rating decision, a 10 percent rating was warranted for burn scar(s) due to other causes, not of the head, face, or neck, that are deep and non-linear of an area measuring at least six square inches (39 sq. centimeters (cm)) but less than 12 square inches (77 sq. cm). Note 1 states “[i]f multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either anterior portion and the posterior portion of the trunk, … assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk. Id. The AOJ noted in its November 2012 rating decision that a separate 10 percent rating was assigned for right anterior breast scar as the evidence showed a deep nonlinear scar not of the face, head, or neck with an area of at least 39 sq. cm but less than 77 sq. cm. See November 2012 Rating Decision. This finding was supported by the March 2012 VA examination report, which confirmed that the Veteran’s anterior trunk scar was deep and nonlinear, and measured 19 cm x 4 cm (76 sq. cm). A January 2012 VA treatment record reflects that the Veteran had a flat burn scar of the right chest extending approximately 13 cm x 5 cm (65 cm). See January 2012 VA Primary Care Attending Note in CAPRI received May 2017. There is no other evidence of record demonstrating that the Veteran’s right anterior chest scar was at least 39 sq. cm within one year prior to the January 2012 increased rating claim. In this case, prior to January 12, 2012, the Veteran was in receipt of a total 40 percent rating for his burn scars of the left hand and right chest under DC 5222-7801 since April 1979. Under the rating criteria for DC 7801 in effect in 1979, a 40 percent disability rating was assigned for third degree burn scars of an area exceeding one square foot. Note 2 stated “[r]atings for widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined.” See 38 C.F.R. § 4.118, DC 7801 n. 2 (1975) in Miscellaneous C&P Correspondence. However, based on the revised regulations in effect at the time of the November 2012 rating decision, the Veteran was assigned a separate 10 percent rating for his right chest scar. The Board acknowledges the Veteran’s statements that his right anterior chest scar has not changed since the initial grant of service connection. See VA Form 9. Specifically, the Veteran stated “[i]t should be noted that burn scars have been the same since my discharge…. The scar which the VA granted a 10 percent increase effective 1-12-2012 is not a new scar.” Id. (emphasis in original). Nonetheless, the Veteran was granted a separate rating based on the regulation change. Although entitlement to a separate 10 percent rating for his right anterior chest scar could conceivably have arisen effective October 23, 2008, the date of revised regulations, the Veteran did not file a claim until January 12, 2012, which is the later of the two dates. The Board also finds that it was not factually ascertainable that the Veteran’s right chest scar increased in severity within one year prior to the January 12, 2012. Indeed, there was no medical evidence within the one-year period prior to January 2012. Instead, the Veteran was granted a separate rating for his right anterior chest scar based on change of regulations and law, which allowed for separate ratings for scars. Accordingly, the earliest effective date available is January 12, 2012, which is the later date between the date of entitlement and the date of claim. Thus, because the weight of the evidence is against, the claim, there is no doubt to be resolved as to this issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim for an earlier effective date for the grant of a separate 10 percent rating for right anterior chest scar prior to January 12, 2012, must be denied. 2. CUE The Veteran contends that the April 1970, April 1971, and June 1979 rating decisions were based on CUE, because the AOJ failure to assign a separate rating for his right anterior chest scar. See August 23, 2019 Correspondence. Specifically, the Veteran states that following the June 1979 rating decision, “[t]here is still no separate grant for scarring of the upper right chest…. I still believe there was a Clear and Unmistakable Error made in the decisions made on April 6, 1970 and again on June 26, 1979.” Id. Legal Criteria In order for the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Similarly, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains CUE. The United States Court of Appeals for of Veterans Claims (Court) has provided a three-part test to determine if there was CUE in a prior decision, as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made;” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (affirming that CUE must be outcome determinative). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43 (1993), citing Russell, 3 Vet. App. at 313-14. A claim that the evidence was not properly weighed or evaluated cannot constitute CUE, and the allegation of CUE must specifically state what error occurred and how the outcome would have been manifestly different. Analysis As discussed above, the Veteran was granted service connection for left hand and right chest burn scars in April 1970 and assigned a 30 percent disability rating under DC 5222-7801. In the June 1979 rating decision, he was assigned a 40 percent rating, which was the highest rating available under that code. Under the rating criteria for DC 7801 in effect in 1979, a 40 percent disability rating was assigned for third degree burn scars of an area exceeding one square foot. Note 2 stated “[r]atings for widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined.” See 38 C.F.R. § 4.118, DC 7801 n. 2 (1975) in Miscellaneous C&P Correspondence. Regarding, how the Veteran’s scars were rated in April 1971, the AOJ explained in the July 2020 SSOC that: Th[e April 1970] rating was prepared under the criteria for scars that was effective March 3, 1969, using diagnostic code 7801. The criteria in effect was: 7801 scars, burns, third degree [-] Area or areas exceeding 1 square foot [-] 40 %.... Note (2). Rating for widely separated areas, as on two or more extremities, or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined. The Rating of April 6, 1970, combined the left thumb, second finger, and third finger with the right anterior chest to provide a 30 percent evaluation… Combining the fingers with the right anterior chest is clearly allowed as the criteria includes “areas.” This combination does not violate Note (2). It was not VA policy at that time to assign separate evaluations for different manifestations of scars…. See July 2020 SSOC (emphasis added). The AOJ also explained the June 1979 rating decision similarly assigned a total 40 percent rating for the Veteran’s left hand and right anterior chest scars. The AOJ further noted that between the 1971 and the Veteran’s claim in 2012, the Court decided a precedential case Esteban v. Brown, 6 Vet. App. 259 (1994), which held that separate ratings were authorized for different disabilities and/or manifestations. Finally, the AOJ asserted that the November 2012 rating decision granted a separate rating for the Veteran’s right anterior chest scar based on the April 2012 VA examination report, and the revised DC 7801 regulations effective October 23, 2008, and the holding of Esteban v. Brown, 6 Vet. App. 259 (1994), which allowed separate ratings for different scars. The Veteran does not allege that the correct facts as they were known at the time, were not before the RO, or that the statutory and regulatory provisions extant at the time were incorrectly applied. In fact, the Veteran admits that after reviewing the July 2020 SSOC, “I have no basis to argue the decision as I do not have the various codes and laws noted in your correspondence. While I am disappointed with the decision it appears to be moot at this point.” See July 2020 Correspondence. Essentially, the Veteran contends that the April 1970 and June 1979 rating decisions should have granted a separate rating for his right anterior chest scar effective the date of service connection. However, to the extent that it is argued that the anterior chest scar warranted a separate rating in 1970 and 1979, this is essentially a mere disagreement with the weighing of the facts, and cannot be CUE. Notably, the AOJ combined the Veteran’s left hand and right chest scars based on DC 7801 that was in effect at the time of the April 1970 and June 1979 rating decisions. Specifically, the AOJ stated that at the time of April 1970 and June 1979 rating decision “[i]t was not VA policy at that time to assign separate evaluations for different manifestations of scars.” See July 2020 SSOC. As such, the evidence does not demonstrate that the law was misapplied in assigning a combined disability rating for his service-connected scars. Under the standards set for CUE by the Court, the Board finds that the Veteran has not alleged specific errors of fact or law sufficient to satisfy the heightened pleading requirement for the assertion of a CUE claim under 38 C.F.R. § 3.105(a). The Veteran, as a lay party, is competent to report symptoms, but not to establish a diagnosis or the level of disability. Here, the Veteran’s contention equates to an argument that the medical and lay evidence were not weighed or considered properly in April 1970 and June 1979 in assigning a combined 40 percent rating for scars of the left hand and right anterior chest versus a separate 10 percent rating for his right anterior chest scar. As such, the Board finds that the Veteran has failed to establish a valid CUE claim. Fugo v. Brown, 6 Vet. App. 40 (1993). The Board emphasizes that unlike the procedures governing other claims for benefits, the burden is entirely upon the Veteran in an allegation of CUE to provide specific arguments as to how adjudicative errors of fact or law were both clear and unmistakable and would change the outcome based upon the record and the law as they existed at the time of the determination. To the extent that the Veteran’s CUE claim encompasses a request for a reweighing of the evidence, such is impermissible for a clear and unmistakable error claim. Luallen v. Brown, 8 Vet. App. 92 (1995). Based on the foregoing, the Board finds that the claim for an effective date earlier than January 12, 2012, for the grant of a separate 10 percent rating for right anterior chest scar must be denied, as the result would not have been manifestly different but for the alleged error. In sum, the Veteran has not identified an error of fact or law in the April 1970 and June 1979 rating decisions that compels a conclusion, to which reasonable minds could not differ, that the results would have been manifestly different had the error not been made, and his claim of CUE in those decisions is denied. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § 3.105. Accordingly, an earlier effective date prior to January 12, 2012 on the basis of CUE is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.