Citation Nr: 21020837 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-17 403 DATE: April 8, 2021 ORDER Entitlement to a disability rating of 30 percent, but not higher, for the service-connected muscle wound of the right neck is granted. Entitlement to a disability rating higher than 50 percent for paralysis of the right vocal cord (tenth cranial nerve) is denied. Entitlement to a disability rating of 10 percent, but not higher, for the service-connected paralysis of the right vocal cord (ninth cranial nerve) is granted. Entitlement to a disability rating higher than 20 percent for the service-connected cervical compression fracture, is denied. Entitlement to a disability rating higher than 10 percent for the service-connected anterior neck scarring on the basis of pain is denied. Entitlement to a disability rating higher than 0 percent for the service-connected anterior neck scarring on the basis of disfigurement is denied. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for the cervical spine disability is denied. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for anterior neck scarring on the basis of pain is denied. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for anterior neck scarring on the basis of disfigurement is denied. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (tenth cranial nerve) is denied. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (ninth cranial nerve) is denied. Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring a period of convalescence is denied. FINDINGS OF FACT 1. The service-connected muscle wound of the right neck is manifested by severe impairment of Muscle Group XXII. 2. The service-connected paralysis of the right vocal cord (tenth cranial nerve) is manifested by complete paralysis of the tenth cranial nerve. 3. The service-connected paralysis of the right vocal cord (ninth cranial nerve) is manifested by moderate incomplete paralysis of the ninth cranial nerve. 4. The service-connected cervical compression fracture is manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees and no degree of ankylosis. 5. The service-connected anterior neck scarring on the basis of pain is manifested by two painful scars of the head face and neck. 6. The service-connected anterior neck scarring on the basis of disfigurement is manifested by no characteristics of disfigurement. 7. The earliest date of a pending claim of entitlement to service connection for the cervical spine disability is July 10, 2018. 8. The earliest date of a pending claim of entitlement to service connection for anterior neck scarring on the basis of pain is July 10, 2018. 9. The earliest date of a pending claim of entitlement to service connection for anterior neck scarring on the basis of disfigurement is July 10, 2018. 10. The earliest date of a pending claim of entitlement to service connection for paralysis of the right vocal cord (tenth cranial nerve) is July 10, 2018. 11. The earliest date of a pending claim of entitlement to service connection for paralysis of the right vocal cord (ninth cranial nerve) is July 10, 2018. 12. The evidence does not substantiate treatment for a service-connected disability requiring a period of convalescence. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for the service-connected muscle wound of the right neck are met; the criteria for a rating higher than 30 percent are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.55, 4.56, 4.73, Diagnostic Code 5322 (2021). 2. The criteria for a disability rating higher than 50 percent for the service-connected paralysis of the right vocal cord (tenth cranial nerve) are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8210 (2021). 3. The criteria for a disability rating of 10 percent for the service-connected paralysis of the right vocal cord (ninth cranial nerve) are met; the criteria for a disability rating higher than 10 percent are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8209 (2021). 4. The criteria for a disability rating higher than 20 percent for the service-connected cervical compression fracture are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2021). 5. The criteria for a disability rating higher than 10 percent for the service-connected anterior neck scarring on the basis of pain are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2021). 6. The criteria for a disability rating higher than 0 percent for the service-connected anterior neck scarring on the basis of disfigurement are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2021). 7. The criteria for assignment of an effective date earlier than July 10, 2018, for the grant of service connection for the cervical spine disability are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2021). 8. The criteria for assignment of an effective date earlier than July 10, 2018, for the grant of service connection for anterior neck scarring on the basis of pain are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2021). 9. The criteria for assignment of an effective date earlier than July 10, 2018, for the grant of service connection for anterior neck scarring on the basis of disfigurement are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2021). 10. The criteria for assignment of an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (tenth cranial nerve) are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2021). 11. The criteria for assignment of an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (ninth cranial nerve) are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2021). 12. The criteria for a temporary total evaluation due to treatment for a service-connected disability requiring a period of convalescence are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.29, 4.30 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from August 1951 to August 1954. This appeal comes before the Board of Veterans’ Appeals (Board) from October 2018 and January 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing, but withdrew his request in writing in August 2020. The issue of entitlement to an effective date earlier than July 10, 2018, for the assignment of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) has been deferred by the Agency of Original Jurisdiction (AOJ) pending the decision of the Board as to the effective date issues on appeal (Record 10/21/2020), (Record 02/17/2021). As the Board’s decision here does not alter the currently assigned effective dates, there is no TDIU issue currently on appeal. In a written statement received in June 2020, the Veteran raised the issue of clear and unmistakable error in several rating decisions of the AOJ. The Veteran is advised that his statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. As discussed below, an allegation of CUE is a separate and distinct claim from the effective date claim adjudicated by the AOJ. Increased Ratings—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2021). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to a disability rating higher than 20 percent for the service-connected muscle wound of the right neck. In a December 1954 rating decision, VA granted service connection for gunshot wound residuals to the neck and assigned an initial disability rating of 20 percent under Diagnostic Code 5320-5321, effective August 14, 1954. In an April 1974 decision, VA granted a temporary total rating pursuant to 38 C.F.R. § 4.29, effective January 4, 1974, with a rating of 20 percent assigned from February 1, 1974. A temporary total rating was assigned pursuant to 38 C.F.R. § 4.30, effective July 8, 1983, with a return to a 20 percent rating, effective October 1, 1983. The current appeal arises from an increased rating claim received at VA on July 10, 2018. Diagnostic Code 5322 addresses disability of Muscle Group XXII. Function: Rotary and forward movements of the head; respiration; deglutition. Muscles of the front of the neck: (Lateral, supra-, and infrahyoid group.) (1) Trapezius I (clavicular insertion); (2) sternocleidomastoid; (3) the “hyoid” muscles; (4) sternothyroid; (5) digastric. A rating of 30 percent is provided for severe impairment. A rating of 20 percent is provided for moderately-severe impairment. A rating of 10 percent is provided for moderate impairment. A rating of 0 percent is provided for slight impairment. 38 C.F.R. § 4.73, Diagnostic Code 5322. An August 2018 VA Examination reveals that, due to the gunshot wound and the limited neck movement, he is unable to sleep well at night. Muscle strength was mildly impaired (Record 08/28/2018). A December 2018 VA Examination reveals a diagnosis of gunshot wound to the anterior neck. The entrance and exit scars were small or linear, indicating short track of missile through muscle tissue. There was some loss of deep fascia associated with the muscle injury. There was some impairment of muscle tonus. The injury resulted in weakness, lowered threshold of fatigue, and fatigue-pain. The examiner explained that the anterior triangle muscles of the neck are accessory muscles needed for swallowing. The Veteran has a long history of choking on solid foods. Most recently, this choking was getting worse and he was losing weight. He fatigues when he eats, which indicates that the anterior muscles needed for swallowing are compromised. On occasions, he has sharp pains in the left greater than right side of his neck where the bullet exited and entered the fascia and grazed these anterior neck muscles (Record 12/06/2018). Outpatient treatment records can be summarized as showing consistent complaint of right-sided neck pain and stiffness, which, at times, impairs his ability to turn his head from side to side or up and down. After a review of all of the evidence, the Board finds that the criteria for a rating of 30 percent for the service-connected muscle wound of the right neck are met. The Board finds that while the muscle wound itself may not be severe, the wide-ranging effects of the injury on the Veteran’s activities of daily living and health are substantial. In particular, the evidence of a long history of choking on solid food, as well as fatigue and weight loss associated with eating demonstrate definite health effects of the muscle injury. Moreover, the Veteran has described difficulty with turning his head due to his muscle injury. This overlaps to some extent with reduced rotation due to his cervical spine injury, but the effect due to muscle pain must be acknowledged. In this case, the Board finds that the combination of symptoms and their wide-ranging effects on activities of daily living substantiate significant health effects. The Board finds that the criteria for a 30 percent rating are more nearly approximated than are the criteria for a 20 percent rating. The Board notes that a 30 percent rating is the maximum rating contemplated for the muscle group involved in this case. Accordingly, no higher ratings are available. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a disability rating higher than 50 percent for the service-connected paralysis of the right vocal cord (tenth cranial nerve). Entitlement to a disability rating higher than 0 percent for the service-connected right vocal cord paralysis of the ninth cranial nerve. In an October 1969 rating decision, VA granted a separate rating of 10 percent for right vocal cord paralysis under Diagnostic Code 8210 (10th cranial nerve), effective April 2, 1968. In a January 1975 decision, VA granted an increased rating of 30 percent, effective June 13, 1975. The rating was increased to 50 percent in a September 2011 decision, effective June 23, 2010. The current appeal arises from an increased rating claim received at VA on July 10, 2018. In an October 2018 rating decision, VA separately granted service connection for impairment of the 9th cranial nerve and assigned an initial disability rating of 0 percent under Diagnostic Code 8209, effective July 10, 2018. Diagnostic Codes 8209, 8309, 8409 (paralysis, neuritis, neuralgia of the ninth (pneumogastric, vagus) cranial nerve)) provides a rating of 30 percent where paralysis is complete. A rating of 20 percent is provided where paralysis is incomplete but severe. A rating of 10 percent is provided where paralysis is incomplete but moderate. Note: Dependent upon relative loss of ordinary sensation in mucous membrane of the pharynx, fauces, and tonsils. 38 C.F.R. § 4.124a, Diagnostic Code 8209. Diagnostic Code 8210, 8310, 8410 (paralysis, neuritis, neuralgia of the tenth (pneumogastric, vagus) cranial nerve) provides a rating of 50 percent where paralysis is complete. A rating of 30 percent is provided where paralysis is incomplete but severe. A rating of 10 percent is provided where paralysis is incomplete but moderate. Note: Dependent upon extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart. 38 C.F.R. § 4.124a, Diagnostic Code 8210. An August 2018 VA Examination reveals a diagnosis of right vocal cord paralysis. The Veteran reported that the Veteran continues to have hoarseness due to his condition. He has been having residual episodes of choking, especially when he is eating and drinking. Due to the gunshot wound and the limited neck movement, he is unable to sleep well at night. The Veteran reported that he eats small meals and bites, drinks water, but still chokes. Current and frequency of treatment was “None.” Symptoms included constant pain, at times excruciating, but generally assessed as moderate; and difficulty chewing, swallowing, and speaking, assessed as mild. Muscle strength was mildly impaired. Sensation was normal. The examiner assessed overall moderate incomplete paralysis of cranial nerves IX and X. There was no impact of the condition on the Veteran’s ability to work (Record 08/28/2018). The December 2018 VA Scars examiner noted that the impact on work was that the Veteran has difficulty with vocalization due to the paralysis of the vocal cords (Record 12/06/2018). An April 2020 Addendum Opinion states that there would be no restrictions for job activities required regarding the nerve injuries (Record 04/10/2020). After a review of all of the evidence, the Board finds that the criteria for a rating of 10 percent are met for the ninth cranial nerve impairment. However, the criteria for a rating higher than 10 percent are not met; and, the criteria for a rating higher than 50 percent for the tenth cranial nerve are not met. Regarding the tenth cranial nerve, Diagnostic Code 8210 provides a maximum rating of 50 percent, which is currently assigned. No higher rating are provided or contemplated for this disability. Regarding the ninth cranial nerve, the August 2018 VA examiner assessed the impairment associated with that nerve as incomplete moderate paralysis. Under Diagnostic Code 8209, this warrants a rating of 10 percent. The Board acknowledges that the Veteran’s difficulty swallowing has been attributed both to the service-connected muscle disability and to the service-connected nerve disabilities. Additional development would be required to accurately determine the degree of contribution of each disability. However, there is no prejudice resulting from the Board’s reliance on the current evidence, as the Board has acknowledged the contribution of each disability to this symptomatology. The Board finds that severe incomplete paralysis is not substantiated under Diagnostic Code 8209. The August 2018 examiner assessed only mild impairment of innervated muscles associated with the ninth cranial nerve, as well as normal sensation and the lack of associated symptoms, such as impaired salivation or lacrimation. Moreover, it was that examiner’s assessment that the condition should not impact the Veteran’s ability to work. While the December 2018 VA Scars examiner noted the Veteran’s difficulty with vocalization due to the paralysis of the vocal cords, both ratings assigned in this case are for impairment of the vocal cords. Thus, the medical assessments of the severity of each rated disability is competent and persuasive evidence. In light of this evidence, the Board finds that the criteria for severe incomplete paralysis are not more nearly approximated than are the criteria for moderate incomplete paralysis. Therefore, the Board concludes that, while a rating of 10 percent is warranted, no higher rating is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Entitlement to a disability rating higher than 20 percent for a cervical compression fracture. The current appeal arises from an increased rating claim received at VA on July 10, 2018. In a January 2019 rating decision, VA granted service connection for a cervical compression fracture and assigned an initial disability rating of 20 percent under Diagnostic Code 5235, effective July 10, 2018. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. However, as there is no relevant evidence dated after February 7, 2021, in this case, the amended regulations are not applicable in this case. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A rating of 20 percent requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 10 percent is assigned with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). A December 2018 VA Examination reveals a diagnosis of a cervical compression fracture and spondylolisthesis. Flares were described as “I have neck pain every day” and “rate the neck pain 8/10.” The Veteran reported that, when he turns to the right he has pain in the neck—pointing to the left sternocleidomastoid muscle that controls turning to the right. On examination, forward flexion was from 0 to 45 degrees; extension was 0 to 20 degrees; right lateral flexion was 0 to 20 degrees; left lateral flexion was 0 to 10 degrees; right lateral rotation was from 0 to 40 degrees; and left lateral rotation was from 0 to 60 degrees. Pain causing functional loss was noted. There was evidence of pain with weight-bearing and palpation. After 3 repetitions, forward flexion was from 0 to 45 degrees; extension was from 0 to 20 degrees; right lateral flexion was from 0 to 10 degrees; left lateral flexion was from 0 to 10 degrees; right lateral rotation was from 0 to 20 degrees; and left lateral rotation was from 0 to 40 degrees. During flares, and after repetitive use over a period of time, all measurements were the same as after 3 repetitions, except rotation, which was decreased to 0 bilaterally. There were no muscle spasms, and guarding did not result in abnormal gait or abnormal spinal contour. The Veteran did not have intervertebral disc syndrome, and testing of upper extremity strength, sensation, and reflexes was normal. There was no radiculopathy or ankylosis. The Veteran was not able to rotate the neck on a repetitive basis (Record 12/06/2018). After a review of all of the evidence, the Board finds that the criteria for a rating higher than 20 percent for the service-connected cervical spine disability are not met. The current evaluation contemplates pain on motion and flexion limited to 30 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine, due to pain, weakness, fatigue, or incoordination. Here, the evidence demonstrates that, even during flares, or with repetitive use over a period of time, cervical flexion was possible to 45 degrees, well exceeding the criteria for a rating of 30 percent. The presence of pain, as described by the Veteran, is certainly a component of his spine disability; however, all compensable levels under the rating schedule are assigned with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Thus, the presence of pain is fully contemplated. It is clear from the record that the Veteran has joint pathology as described under 38 C.F.R. § 4.59, as well as arthritis (Diagnostic Code 5003); and, there is limited motion, and painful motion. However, the noted provisions establish only that the Veteran is entitled to a minimum compensable evaluation for such symptomatology. Such a rating is already assigned. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. In sum, the Board finds that the service-connected cervical spine disability is manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees and no degree of ankylosis. In light of these findings of fact, the Board concludes that a disability rating higher than 20 percent for the service-connected cervical spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Entitlement to a disability rating higher than 10 percent for scarring of the anterior neck on the basis of pain. Entitlement to a disability rating higher than 0 percent for scarring of the anterior neck on the basis of disfigurement. The current appeal arises from an increased rating claim received at VA on July 10, 2018. In a January 2019 rating decision, VA granted service connection for scarring of the anterior neck and assigned an initial disability rating of 10 percent under Diagnostic Code 7804, on the basis of pain, and 0 percent under Diagnostic Code 7800, on the basis of disfigurement, each effective July 10, 2018. For claims received prior to August 13, 2018, the rating schedule in effect at that time included an earlier version of Diagnostic Code 7806, which is the subject of the Joint Motion instructions. For claims received after August 13, 2018, this diagnostic code has been replaced by a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, 7824. Under Diagnostic Code 7800, burn scars of the head, face, or neck; or, scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck, can be rated at 80 percent with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. A rating of 50 percent requires visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. A rating of 30 percent requires visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. A rating of 10 percent requires one characteristic of disfigurement. Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are: (1) Scar 5 or more inches (13 or more cm.) in length. (2) Scar at least one-quarter inch (0.6 cm.) wide at widest part. (3) Surface contour of scar elevated or depressed on palpation. (4) Scar adherent to underlying tissue. (5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear can be assigned a rating of 40 percent with area or areas of 144 square inches (929 sq. cm.) or greater. A rating of 30 percent requires area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A rating of 20 percent requires area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A rating of 10 percent requires area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Note (1): A deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 sq. cm.) or greater. Note (1): A superficial scar is one not associated with underlying soft tissue damage Under Diagnostic Code 7804, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable Under Diagnostic Code 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, are evaluated on the basis of any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. An August 2018 VA Examination reveals a diagnosis of scars of the head, face, and neck. None of the scars were non-linear; none were deep; none were unstable; none were due to burns; there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue; there was no abnormal pigmentation. Scarring on the anterior neck was described as sore. There were two painful scars. The scars measured 3.0 centimeters and 3.5 centimeters. Regarding disfigurement, there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran reported limited neck movement due to the scarring. There was no impact of the scarring on the Veteran’s ability to work (Record 08/28/2018). A December 2018 VA Examination reveals a diagnosis of gunshot wound to the anterior neck. Regarding scars, entrance and exit scars were small or linear, indicating short track of missile through muscle tissue. On occasions, he has sharp pains in the left greater than right side of his neck. The scar measured 5 centimeters by 0.5 centimeters (Record 12/06/2018). After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 10 percent for painful scarring are not met; and, that the criteria for a compensable rating for disfiguring scarring are not met. The Veteran has two painful scars. The maximum rating available for one or two scars that are unstable or painful is 10 percent. A higher rating of 20 percent requires three or four such scars. Accordingly, the Board concludes that a higher rating is not substantiated. Regarding disfigurement, the evidence demonstrates that there are no characteristics of disfigurement present in this case. The December 2018 examiner revealed small linear scarring on the neck. For the minimum compensable rating, there must be at least one characteristic of disfigurement. Accordingly, the Board concludes that a higher rating is not substantiated. In sum, the Board finds that the service-connected anterior neck scarring is manifested by two painful scars of the head face and neck; and, that the service-connected anterior neck scarring is manifested by no characteristics of disfigurement. In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent is not warranted under Diagnostic Code 7804, and that a compensable rating is not warranted under Diagnostic Code 7800. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Effective Dates—Law and Regulations The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. However, if the claim is received within 1 year after separation from service, the effective date shall be “day following separation from active service.” 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for the cervical spine disability. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for painful and unstable scarring of the neck. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for disfiguring scarring of the anterior neck. Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (tenth cranial nerve). Entitlement to an effective date earlier than July 10, 2018, for the grant of service connection for paralysis of the right vocal cord (ninth cranial nerve). The Board notes initially that the Veteran’s attorney has submitted written argument in June 2020 requesting revision of several rating decisions (December 1954, December 1959, January 1976, September 1992, June 2007, September 2011, and February 2012) based on clear and unmistakable error (CUE). This argument was submitted after the most recent adjudication of his claims by the AOJ. In other words, the AOJ has not addressed any CUE claim. This is significant in terms of the Board’s jurisdiction. As observed by the Federal Circuit in Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) because a CUE claim involves an allegation of an error with some degree of specificity, a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim. See also Fugo v. Brown, 6 Vet. App. 40, 44 (1993)). Accordingly, each new theory of CUE is a separate and distinct matter. When a new theory of CUE is first presented to the Board, that matter was not "subject to decision by the Secretary," and the Board lacks jurisdiction over the newly raised theory of CUE. 38 U.S.C. § 7104(a). As the allegations of CUE are separate and distinct claims from the effective date claims on appeal, and as it is a collateral attack on final AOJ decisions, there is no prejudice resulting from adjudication of the effective date claims on appeal. However, the allegations of CUE are not on appeal. In determining the correct effective date for a grant of service connection, the Board must first determine the date of claim. In this case, the Veteran filed his claim (VA Form 21-526EZ) on July 10, 2018. Prior to that, there is no correspondence of any kind from the Veteran since a February 2016 Status of Dependents Questionnaire. The closest prior claim was received in June 2014, which requests benefits under 38 C.F.R. § 4.29 or 4.30. It is unclear when the Veteran actually became entitled to service connection for a cervical spine disorder, scarring of the neck, or vocal cord injury, i.e., the date entitlement arose. However, this date is not significant, as effective dates are based on the later of the date of claim or the date entitlement arose. As the current effective date is based on the date of claim, the Veteran is currently assigned the most favorable effective date available. As discussed above, there is no CUE claim on appeal, as the AOJ has not considered such a claim in the first instance. To the extent that the Veteran seeks to revisit prior final decisions on any basis other than CUE, such claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Veteran has also challenged the finality of a May 1968 AOJ decision. That decision denied an increased rating for the service-connected gunshot wound, and was successfully appealed to the Board, which remanded the claim in June 1969. On remand, the Board instructed the AOJ to conduct additional development to determine whether there were any associated nerve disorders which might be separately rated from the already service-connected gunshot wound to the neck. The Board instructed that if the benefit sought on appeal is not granted, the appellant should be furnished a Supplemental Statement of the Case and given a period to reply. The claims folder should then be returned to the Board for further appellate consideration. In an October 1969 rating decision, the AOJ granted separate disability ratings for right vocal cord paralysis and injury to the brachial plexus of radicals involving the left biceps and triceps. This decision ends with the statement “APPEAL GRANTED.” The decision includes a cover letter addressed to the Veteran, dated October 18, 1969, the electronic scan/copy of which is very difficult to read. It begins: “Your appeal has been granted.” It then provides information regarding the benefits granted and the effective date of the awards (Record 10/18/1969). A separate letter was sent to the Board on the same date. It states that the Veteran has been granted additional service-connected disabilities for his vocal cord condition and muscle condition of the left arm and thigh. It concludes: “Since the benefits have been granted, no further appellate review is necessary” (Record 10/18/1969). The Veteran argues that the determination that the appeal had been granted in full was erroneous, and that the issue remains on appeal. However, the law governing finality of claims centers on the notice provided to the claimant and whether he would reasonably be led to believe that a decision on his claim had been rendered. The United States Court of Appeals for Veterans Claims (Veterans Court) has been clear that errors that result in extinguishing the Veteran’s ability to appeal a decision will result in the underlying decision not becoming final. Failure to correctly mail a decision is one such error. Failure to furnish a Statement of the Case is another. Here, the Veteran was clearly notified by the AOJ that the October 1969 rating decision granted the appeal. Subsequent decisions of the Veterans Court clarified that a grant of a rating that is less than the maximum rating does not resolve an appeal, see A.B. v. Brown, 6 Vet. App. 35, 38 (1993). However, even if acknowledged that there was a procedural error in not returning the appeal to the Board, this does not affect finality. Even a grave procedural error does not render a decision to be non-final. Cook, 318 F.3d at 1336 (explaining that the statutory scheme provides only two exceptions to finality—reopening and CUE and overruling Hayre v. West, 188 F.3d 1327 (1999), which created an exception based upon grave procedural error). As noted above, there is an exception for failure to issue a Statement of the Case following receipt of a Notice of Disagreement. Shipley v. Shinseki, 24 Vet. App. 458, 461 (2011); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). However, the basis for this exception is that such failure prevents the claimant from perfecting an appeal. Here, the appeal had already been perfected. If the Veteran did not agree that his appeal had been fully granted, he had an appealable decision issued in October 1969, which notified him that his appeal was considered granted, and which he did not appeal. Subsequent to that decision, the next correspondence from the Veteran came on September 16, 1970, which was a claim for reconsideration of his claim. This correspondence cannot be interpreted as expressing disagreement with the October 1969 decision, as it does not identify that decision or express an intent to appeal it. Moreover, new and material evidence was not received within one year of the October 1969 decision. 38 C.F.R. § 3.156(b). Therefore, that decision became final. In sum, the Board finds that a CUE claim is not validly on appeal; a freestanding effective date claim is not validly on appeal; and, the May 1968 claim became final with the issuance of the rating in October 1969, which reasonably informed the Veteran of the substance of the AOJ’s determination, and with the lack of a cognizable appeal of that decision. In light of these findings, the Board concludes that no earlier effective date is warranted for any of the disabilities claimed. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Temporary Total Ratings—Law and Regulations A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. 38 C.F.R. § 4.30. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989); (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989); (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976). 38 C.F.R. § 4.130(a). Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring a period of convalescence. Here, the Veteran has not identified any hospital or outpatient treatment that would qualify him under either provision set out above, nor has he identified the dates of convalescence, and none can be verified from a review of the medical records. Accordingly, the Board concludes that the claim must be denied on the basis due to a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.