Citation Nr: 21015815 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-33 614 DATE: March 18, 2021 ORDER Entitlement to an effective date of April 3, 2002 for a 50 percent rating for service-connected sebaceous cysts of the face is granted. Entitlement to an effective date of April 3, 2002 for a 20 percent rating for painful scars due to sebaceous cysts (assigned to Diagnostic Code 7805 prior to October 23, 2008, and reassigned to Diagnostic Code 7804 effective October 23, 2008) is granted. FINDING OF FACT On April 3, 2002, the Veteran filed an informal request for an increased rating for his service-connected skin condition; resolving reasonable doubt in favor of the Veteran he has been entitled to a higher rating for his sebaceous cysts of the face and painful scarring since that date. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 3, 2002 for a 50 percent rating for service-connected sebaceous cysts of the face have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 2. The criteria for an effective date of April 3, 2002 for a 20 percent rating for painful scars due to sebaceous cysts have been met. 38 U.S.C.§ 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued two prior remands on this issue in November 2019 and November 2020. 1. Entitlement to an earlier effective date for an increased rating for service-connected sebaceous cysts of the face. 2. Entitlement to an earlier effective date for an increased rating for painful scars due to sebaceous cysts. In a June 2020 rating decision, the Veteran was granted a 50 percent evaluation for his service-connected sebaceous cysts of the face, effective May 12, 2014, and a 20 percent evaluation for painful scars due to sebaceous cysts, also effective May 12, 2014. The Board had initially remanded the claim in November 2019, instructing the RO to “address the specific arguments raised by the Veteran in the notice of disagreement, Form 9, and Board hearing in regard to the claim for an earlier effective date.” However, in July 2020, the RO issued a supplemental statement of the case, listing the only evidence reviewed as (1) the Board’s November 2019 remand, and (2) VA treatment records from the Boston VAMC dated December 3, 2018 to June 24, 2020. The RO’s reasons and bases for denying the claim referenced the above noted VA treatment records as being reviewed and found “The VA treatment records do not establish that an earlier effective date of grant can be established prior to May 12, 2014.” The Board noted that solely based on dates, those treatment records were irrelevant to the claim at issue of an effective date earlier than May 12, 2014. Moreover, the Board noted that the RO failed to address any of the Veteran’s contentions as directed in the prior remand. Thus, the Board issued another remand in November 2020 again instructing the RO to “address the specific arguments raised by the Veteran in his December 2014 notice of disagreement, July 2016 Form 9, August 2019 Board hearing, and August 2020 correspondence in regard to the claim for an earlier effective date.” Following an additional review of the evidence, the RO issued a November 2020 rating decision granting an earlier effective date of March 24, 2014 for sebaceous cysts of the face and painful scars due to sebaceous cysts. While the Board appreciates these findings, for the reasons explained below, a review of the record indicates that an earlier effective date of April 3, 2002 is warranted for both. The Veteran was initially granted service connection for chronic recurrent sebaceous cysts in a January 1999 rating decision, evaluated at 0 percent, effective June 18, 1997. The Veteran did not appeal the initial rating assigned. The Board notes that over the years, the Veteran has consistently contended that his cysts have been ongoing causing infections, cuts, drainage, and stiches, including as early as a February 1998 Form 9 appeal to the Board. The Veteran again noted his cysts in a statement in support of claim in conjunction with a separate posttraumatic stress disorder claim received April 3, 2002. Here, he wrote that he had to have many cysts cut out all over his body which caused many years of aggravation and scars on his face. The Veteran contended that he thought his noncompensable rating was wrong considering his “25 or more years of stiches and civilian doctors I had to see.” On October 12, 2005, the Veteran, through his representative requested an increased rating for his service-connected skin condition by way of an informal claim. Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Effective prior to March 2015, once a formal claim for compensation has been allowed, receipt of a statement may be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157 (2014). The Board finds that from April 3, 2002, the Veteran has had a pending claim for an increased rating for his service-connected sebaceous cysts. On March 24, 2014, the Veteran submitted a letter from his physician noting that he has numerous scars which are residuals of incisions and drainage from his recurrent sebaceous cysts involving his face, ears, neck, trunk, and legs. It was at this time that the Veteran once again requested an increased rating for his cysts, this time on a formal application. The Board notes that the electronic file only contained the signature page of his application, but another formal application for an increased rating was filed in May 2014. In a July 2014 rating decision, the RO granted a 30 percent rating for the Veteran’s sebaceous cysts of the face, effective May 12, 2014. In an April 2017 rating decision, the RO granted service connection for a separate evaluation for painful scars due to sebaceous cysts, effective April 19, 2017, the date of the Veteran’s most recent VA examination. The Veteran’s evaluation for sebaceous cysts of the face was also increased to 50 percent in the April 2017 rating decision as a staged rating. As noted above, following two remands, an earlier effective date of March 24, 2014 was granted for the 50 percent rating for sebaceous cysts of the face, and the 20 percent rating for painful scars due to sebaceous cysts. The Board notes that the Veteran filed a timely notice of disagreement to the July 2014 rating decision in December 2014, writing “I have argued this problem until the VA agreed it was service related in Oct. 2005.” The Board again notes that the Veteran was initially service connected for this condition, effective back in June 1997, however, the Veteran’s argument is referring to his October 12, 2005 informal request for an increased rating. Then on his July 2016 Form 9 appeal to the Board, the Veteran again argued that he has had scarring, drainage, cuts, bleeding, and surgery for his cysts since 1972 and wrote “The VA Board agreed back in 2005 that it was definitely service-related.” Then in August 2019 the Veteran testified at a Board hearing, wherein he argued that he has suffered with constant surgeries, drainage, scarring, open sores, leakage, and skin changes due to his cysts since at least 1997. Finally, in August 2020 correspondence, the Veteran wrote “After having the requested video hearing, with a Judge in Washington, DC, it was my understanding that the earlier effective date agreed upon to be dated back to 2005, when I was granted the – ‘service connected skin disorder, vet with non monetary value.’ Reasons being that there was no representative offered after this, mis-mailed notices sent to wrong addresses, as well as phone calls that were not received by the Veteran himself. Where a whole new claim was forced to be file. We asked that the date be effective when the service connection was granted in ‘2005’ and that this be the only appropriate effective date (no earlier - no later than) – approx. May/2005 – An earlier effective date as of whatever month I was awarded the ‘non-monetary’ service connection in 2005 is what I have been fighting for and assumed that was the date that was agreed too. ” As the Veteran generally claimed ongoing symptoms for several years prior to filing the instant claim in 2014, and the Veteran’s April 2002 informal claim has been pending the entire time (despite the Veteran not being given a VA examination for such), the Board finds that reasonable doubt should be resolved in favor of the Veteran. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (providing that the effective date for a disability evaluation may be earlier than the date of the medical report on which that disability rating is based, instead all the facts should be examined to determine when the higher level of disability arose.) Resolving reasonable doubt in favor of the Veteran, it was factually ascertainable that the Veteran was entitled to a higher rating based on lay testimony and later examination findings which confirmed the earlier complaints, the Board finds that an earlier effective date of April 3, 2002 for an increased rating for service-connected sebaceous cysts of the face and painful scars due to sebaceous cysts is warranted. In so finding, the Board recognizes that during the pendency of the Veteran's appeal, amendments were made to the criteria for rating the skin, to include amendments effective October 23, 2008 pertaining to painful scars. Thus, the 20 percent rating for painful scaring is assigned to Diagnostic Code 7805 (limitation of function of part affected) prior to October 23, 2008, and reassigned to Diagnostic Code 7804 effective October 23, 2008. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.