Citation Nr: 21014859 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-51 640 DATE: March 16, 2021 ORDER Entitlement to an effective date earlier than January 27, 2014 for the award of a 30 percent rating for left side facial nerve disorder, status post basal cell lymphoma removal, is denied. Entitlement to an effective date earlier than January 27, 2014 for the award of a 30 percent rating for left side facial depression disfigurement, status post basal cell lymphoma removal, is denied. FINDINGS OF FACT 1. In a July 2008 rating decision, the Veteran was awarded service connection for basal cell lymphoma with a noncompensable rating from September 1, 2007 based on a finding that the Veteran did not at the time demonstrate recurrence or metastasis of basal cell lymphoma, or compensable residuals. 2. The Veteran did not appeal the noncompensable evaluation for basal cell lymphoma assigned in the July 2008 rating decision, nor was new and material evidence received within one year with respect to the evaluation. 3. On January 27, 2014, VA received the Veteran’s compensation claim for left sided facial and nose numbness and disfigurement, as secondary to service-connected basal cell lymphoma. 4. No document that can be construed as a formal or informal compensation claim for left sided facial and nose numbness and disfigurement, was received by VA prior to January 27, 2014. CONCLUSIONS OF LAW 1. The July 2008 rating decision, as it relates to the noncompensable evaluation of the Veteran’s service-connected basal cell lymphoma, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than January 27, 2014 for the award of a 30 percent rating for a left side facial nerve disorder, status post basal cell lymphoma removal, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for an effective date earlier than January 27, 2014 for the award of 30 percent rating for a left side facial depression disfigurement, status post basal cell lymphoma removal, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty United States Air Force from February 1983 to June 1983, and from April 1985 to August 2007. A Board hearing was held before the undersigned Veterans Law Judge in November 2020, and a transcript of the hearing is of record. The Veteran contends the award of a 30 percent disability rating for a left side facial nerve disorder and a 30 percent disability rating for a left side facial depression disfigurement, status post basal cell lymphoma removal, should be effective from September 1, 2007, the date of his award of service connection for basal cell lymphoma. See November 2020 hearing transcript. In support of the Veteran’s assertion, the Veteran and his representative noted that a November 2007 VA examination documented the Veteran’s report of facial deformation from the left side of his nose as a result of removal of the basal cell lymphoma, as well as numbness on the left side of his nose to his left lip. See also November 2014 correspondence. As it relates to the current appeal, the Veteran filed a claim for entitlement to service connection for a skin condition, described as basal cell cancer, within one year of his separation from service. See October 2007 VA Form 21-526. The Veteran was afforded a VA general medical examination in November 2007. The examiner took a history from the Veteran regarding his service-connection claim for a skin condition. The Veteran reported he had a basal cell lymphoma excised while on active duty in September 1996, with chemotherapy treatment from October to December 1996 and radiation treatment from January to February 1997. The Veteran reported no recurrence of lymphoma. The Veteran reported facial deformation from the left side of his nose as a result of removal of the basal cell lymphoma, as well as numbness on the left side of his nose to his left lip. The Veteran reported that removal of the basal cell lymphoma affected perception of how he looks, and that he was unable to tell if he has a runny nose. On physical examination, the examiner reported the Veteran did not demonstrate scars, skins lesions, or deformities of the head and face. Photographs of the Veteran’s face and nose were taken and associated with the claims file. The examiner reported the Veteran’s nose, sinuses, mouth, throat, and lymph nodes of the neck were normal. The examiner reported the Veteran demonstrated normal cranial nerve functions. In a July 2008 rating decision, the Veteran was awarded service connection for basal cell lymphoma from September 1, 2007. The Veteran was assigned a noncompensable rating for his basal cell lymphoma based on no local recurrence or metastasis, and no compensable residuals. See 38 C.F.R. § 4.117, Diagnostic Code 7715 (instructing to rate on residuals of non-Hodgkins lymphoma where there has been no local recurrence or metastasis). The Veteran did not appeal the noncompensable evaluation of his basal cell lymphoma that was assigned in the July 2008 rating decision. The Board recognizes that additional service records were associated with the file within one year of the July 2008 rating decision, but they did not contain evidence material to the severity of the disability at the time of discharge. See 38 C.F.R. § 3.156(b). The Board accordingly finds that the July 2008 rating decision, as it relates to the noncompensable evaluation of the Veteran’s service-connected basal cell lymphoma, is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board adds that, given that the AOJ already awarded service connection for basal cell carcinoma prior to receipt of these additional service records, the provisions of 38 C.F.R. § 3.156(c) are not for application in this case. The Board has considered whether an effective date earlier than January 27, 2014 is warranted on any basis for the award of a 30 percent disability rating for a left side facial nerve disorder and a 30 percent disability rating for a left side facial depression disfigurement, status post basal cell lymphoma removal. Under 38 C.F.R. § 3.400, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. Under the pertinent regulations in effect with respect to an effective date earlier than January 27, 2014 for the award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Lalonde v. West, 12 Vet. App. 377, 380-381 (1999); see also 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). For a statement to be construed as a formal or informal claim for compensation, such must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality. See Sellers v. Wilkie, 965 F.3d 1328 (2020). In some cases, a report of examination or hospitalization may be accepted as an informal claim for increase under former 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination or hospitalization under 38 C.F.R. § 3.157(b) should indicate that a veteran’s service-connected disability has worsened since the time it was last evaluated. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011); aff’d Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013). Moreover, the term report of examination under 38 C.F.R. § 3.157(b) implies that the medical record in question must describe the results of a specific, particular examination. In reviewing the evidence of record prior to January 27, 2014, the Veteran submitted correspondence in February 2011 requesting a review of his claim for service-connected disabilities. In that letter, the Veteran explicitly clarified the conditions that he desired to be considered. The Veteran did not indicate he was seeking an increased rating for his service-connected basal cell lymphoma, nor did he make any reference to or identify a facial nerve disorder or facial disfigurement in his February 2011 correspondence. Additionally, the Veteran did not subsequently indicate disagreement with issues decided in the May 2013 rating decision addressing his February 2011 claim for compensation. While VA treatment records dated since July 2008 show the Veteran was treated for recurrent (non-malignant) lesions where the initial basal cell lymphoma had been removed in service, such did not demonstrate a worsening of the underlying service-connected lymphoma disorder, and the records did not include reference to the development of facial disfigurement or nerve complications as a residual of his service-connected lymphoma disorder. On January 27, 2014, VA received the Veteran’s claim for entitlement to compensation for left side facial/nose numbness and disfigurement secondary to his service-connected basal cell lymphoma. See January 2014 VA Form 21-526EZ. In an October 2014 rating decision, after a new VA examination, the AOJ awarded a 30 percent rating for left side facial nerve disorder, and a 30 percent rating for left side facial depression disfigurement, effective the date of claim on January 27, 2014. In the October 2014 rating decision, the AOJ recharacterized the Veteran’s service-connected disability as “facial depression disfigurement status post basal cell lymphoma removal (previously rated as basal cell lymphoma)” for all times from January 27, 2014 forward. Upon review of the record, for the time period from the final June 2008 rating decision to January 27, 2014, there is no identifiable formal or informal claim for compensation for the Veteran’s service-connected basal lymphoma, manifested by a facial nerve disorder and disfigurement. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran’s own statements to VA during this time period contained no request for such compensation, either by dint of a claim for increase or service connection. In addition, the treatment records dated during this time period cannot be construed to include an informal claim for increase for residuals of lymphoma, as no increased level of severity for such condition was shown within those records. Insofar as the Veteran’s January 27, 2014 claim is construed as a claim for increase, there is no indication that the Veteran’s disability worsened in severity during the one-year period prior to that date such that the award of increased and separate ratings of 30 percent for disfigurement and facial nerve problems respectively, can be awarded during that look back period. The Board acknowledges that during the November 2020 Board hearing, the Veteran indicated that he has had the residuals of basal cell lymphoma, manifested by left facial numbness and disfigurement, since the surgery to remove the lymphoma in September 1996. The Veteran reported that he had just dealt with the facial numbness and disfigurement, and had not sought treatment for such residuals. The Veteran asserted that he should have been compensated for such residuals, which were noted on the November 2007 VA examination, since the date he was awarded service connection for basal cell lymphoma on September 1, 2007. The Veteran indicated he was not aware of all the options at his disposal when he was assigned a noncompensable rating for basal cell lymphoma in the July 2008 rating decision. See also July 2008 VA notification letter (informing the Veteran of his procedural and appellate rights). The Board is sympathetic to the Veteran and his arguments. However, the Board is bound by the law governing the assignment of effective dates, and is without authority to grant the Veteran’s claim on an equitable basis. The Board observes that the Veteran has already filed a claim alleging that clear and unmistakable error (CUE) existed in the AOJ’s July 2008 rating decision in failing to award a compensable rating for lymphoma based on the presence of a facial nerve disorder, but such was denied in an unappealed February 2017 rating decision. The Veteran has not separately filed allegations of CUE in the July 2008 rating decision with respect to any failure to award a rating for disfigurement. For the reasons discussed above, the Board is precluded from assigning an effective date earlier than January 27, 2014 for the award of 30 percent ratings for left side facial nerve disorder and facial disfigurement, respectively. The benefits sought on appeal must therefore be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.