Case A26034275

ARDIE A. BLAND · 2026 · Case ID: A26034275

DENIED

Summary

The veteran, who served from March 1959 to January 1963 and July 1963 to February 1967, appealed the denial of earlier effective dates for service connection for facial scarring and higher ratings for disfigurement and painful facial scars. The veteran initially sought service connection for facial scarring in March 1967, which was denied for failure to appear for a VA examination. This decision became final as the veteran did not appeal or respond to VA's notification. Service connection for facial scarring was later granted with an October 1985 effective date in March 1986. The veteran sought higher ratings and earlier effective dates multiple times thereafter, with various claims being denied or leading to further appeals and remands. In his January 2026 hearing, the veteran withdrew his claims for an earlier effective date for PTSD and a higher PTSD rating. The Board found that the veteran's claims for earlier effective dates for facial scarring were impermissible "free-standing" claims, as the prior decisions granting service connection and specific ratings had become final and were not subject to revision based on clear and unmistakable error (CUE). The Board also found that the veteran's arguments regarding the July 1967 and March 1986 decisions did not constitute valid CUE claims. Regarding increased ratings, the Board reviewed the VA examination findings for the veteran's scars. For disfigurement scarring (DC 7800), the Board found the evidence against a higher rating, as the veteran did not meet the criteria for gross distortion or asymmetry of multiple features or multiple characteristics of disfigurement. For painful scarring (DC 7804), the Board noted that the maximum rating of 30 percent had already been assigned, precluding a higher rating. The Board found the veteran competent to report observable symptoms but not to identify specific disability levels according to diagnostic codes, and that the medical findings outweighed lay statements. Ultimately, all claims for earlier effective dates and higher ratings were denied.

Rationale

Veteran withdrew claim for PTSD and higher rating for PTSD at hearing.; Board dismissed issues as no longer on appeal.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

251007-593237

Full Decision Text

Citation Nr: A26034275
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 251007-593237
DATE: April 14, 2026

ORDER

An effective date prior to September 15, 2024, for service connection for posttraumatic stress disorder with anxiety due to facial scarring (PTSD) and a higher rating for PTSD is dismissed.

An effective date prior to October 23, 1985, for service connection for multiple scars of the face with disfigurement is denied.

An effective date prior to February 23, 2012, for service connection for painful scars of the face is denied.

An effective date prior to July 1, 2021, for a 30 percent rating for painful scars of the face is denied.

A rating higher than 30 percent for disfigurement facial scars is denied.

A rating higher than 30 percent for painful facial scars is denied.

FINDINGS OF FACT

1. In his January 2026 hearing, the Veteran withdrew his claim for an effective date prior to September 15, 2024, for the award of service connection for PTSD and a claim for a higher rating for PTSD.

2. The Veteran's claims for earlier effective dates for his awards of service connection for disfigurement facial scarring and painful facial scarring constitute "free-standing" claims; in the alternative, there were no pending unadjudicated claims for service connection for the Veteran's facial scarring prior to October 23, 1985, or February 23, 2012.

3. The Veteran filed an intent to file a claim on July 1, 2022; prior to receipt of the intent to file, no communication was received that could be construed as an informal or formal claim for a higher evaluation of the Veteran's painful facial scars.

4. The Veteran's disfigurement facial scarring has not been shown to be manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two or more features or paired sets of features, or; more than three characteristics of disfigurement.

5. The Veteran has the maximum rating allowed pursuant to DC 7800.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim for an effective date prior to September 15, 2024, for the award of service connection for PTSD and a higher rating for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 (for AMA) § 19.55 (legacy).

2. The criteria for an effective date prior to October 23, 1985, for the award of service connection for disfigurement facial scarring have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.114, 3.155, 3.156, 3.400.

3. The criteria for an effective date prior to February 23, 2012, for the award of service connection for painful facial scarring have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.114, 3.155, 3.156, 3.400.

4. The criteria for an effective date prior to July 1, 2021, for a 30 percent rating for painful facial scarring have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

5. The criteria for a disability rating in excess of 30 percent for disfigurement facial scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7800.

6. The criteria for a disability rating in excess of 30 percent for painful facial scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1959 to January 1963 and from July 1963 to February 1967.

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 22, 2026.

Therefore, the Board may only consider the evidence of record at the time of the
met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1959 to January 1963 and from July 1963 to February 1967.

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 22, 2026.

Therefore, the Board may only consider the evidence of record at the time of the September 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board observes that the time for the Veteran to submit evidence post-hearing has not elapsed. However, during his January 2026 hearing, the Veteran waived the remaining 90 day period post-hearing in which he could file additional evidence. A Veteran is "generally permitted to waive the application of statutes intended for [his] benefit" and that "in order to do so, [he] must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely, to relinquish or surrender that right"). See Janssen v. Principi, 15 Vet. App. 370, 374 (2001). Here, the Veteran's waiver was clear, indicating the Veteran's intent; it was voluntary and freely given; and it was knowingly made. The Board finds the waiver is valid and accepts the waiver and will proceed to adjudicate the appeal.

DISMISSAL

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.

Here, in his January 2026 hearing, the Veteran's representative stated that the Veteran wished to no longer appeal the issues of an effective date prior to September 15, 2024, for the grant of service connection for PTSD or a higher rating for PTSD. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. 38 C.F.R. § 20.204 (c). Accordingly, the Board does not have jurisdiction to review these issues and they must be dismissed.

Earlier Effective Date

Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date of entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

Unappealed rating decisions are final. 38 U.S.C. § 7105. A final rating decision is not subject to revision on the same factual basis except by appellate authorities, or on the basis of clear, unmistakable error (CUE). 38 C.F.R. § 3.104(a). If the evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). "Free-standing" earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. The Court of Appeals for Veterans Claims (CAVC) held that VA has no authority to adjudicate a "free-standing" earlier effective date claim in an attempt to overcome the finality of a prior decision. Id. at 299.

There is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail to the Veteran's last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). This requires showing that the Veteran did not receive the notice or correspondence in question, and that there was another viable address where he could have been reached. Cross v. Brown, 9 Vet. App. 18, 19 (1996). Absent this, VA is entitled to rely on his address of record. When clear evidence sufficient to rebut the presumption is submitted, the burden of proof shifts to VA to establish proper mailing. Romero v. Tran, 33 Vet. App. 252, 267 (2021).

The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2).

Facial Scarring

Procedural History

The Veteran originally sought service connection for facial scarring in March 1967. See March 1967 Fully Developed Claim (FDC). The claim was denied in a July 1967 rating decision. The record shows that the Veteran was notified his claim was denied for failure to appear for a VA examination. See July 14, 1967, correspondence. The notification letter advised the Veteran that no further action would be taken on his claim unless he informed VA of his willingness to report for examination by signing a provided statement and returning the letter to VA. VA further informed the Veteran that upon receipt of the signed statement, an examination would be re-scheduled and his and claim would be reconsidered. The July 1967 notification letter was mailed to the Veteran at the address he provided on his March 1967 FDC. No response to the letter was received by VA.

Thus, the Veteran did not appeal the denial of his claim or return the notification letter with a signature indicating he would appear for an examination. VA did not receive any information that the July 1967 notification letter was undelivered. By law, then, the July 1967 rating decision became
his claim unless he informed VA of his willingness to report for examination by signing a provided statement and returning the letter to VA. VA further informed the Veteran that upon receipt of the signed statement, an examination would be re-scheduled and his and claim would be reconsidered. The July 1967 notification letter was mailed to the Veteran at the address he provided on his March 1967 FDC. No response to the letter was received by VA.

No further communication from the Veteran regarding a disability compensation claim was received until October 23, 1985, when he filed an Application for Compensation or Pension. A March 1986 rating decision granted the Veteran's claim for service connection for his facial scarring and assigned an October 1985 effective date; the notification of the decision was mailed to the Veteran on May 12, 1986. The Veteran did not appeal this rating decision and it, too, became final.

In August 2008, the Veteran filed a statement in support of claim which indicated that he had filed an increased rating claim for his service connected facial scarring along with requesting his file be transferred to San Diego, CA in March 2007, but that VA had not received or documented receipt of the claim. A December 2008 rating decision continued the 30 percent rating assigned to the Veteran's facial scarring. The Veteran was notified of this decision on December 20, 2008.

In February 2012, the Veteran sought a higher rating for his facial scarring.

Concurrent with the claim regarding his scarring, the Veteran had also pursued a claim for retroactive VA compensation for his dependent spouse. In May 2012, the Board remanded the Veteran's claim, directing that the AOJ adjudicate the issue of whether the July 1967 rating decision contained a clear and unmistakable error (CUE) regarding the denial of the Veteran's original claim for service connection as it impacted the Veteran's dependent spousal benefits. The Board specifically stated that the case was not to be returned to the Board unless the Veteran timely appealed the rating decision which adjudicated the CUE claim.

A May 2013 rating decision adjudicated the Veteran's facial scarring increased rating claim. The May 2013 rating decision assigned a 10 percent rating for the Veteran's disfigurement scarring pursuant to DC 7800 as of February 23, 2012, granted separate service connection for painful scarring as of February 23, 2012, and assigned a 10 percent rating for the painful scars pursuant to DC 7804. The rating decision was mailed to the Veteran on May 28, 2013. The Veteran did not appeal this rating decision.

In July 2013, the AOJ found no CUE in the July 1967 rating decision. The Veteran was notified of the denial in a July 17, 2013, notification letter. The Veteran did not appeal this decision, and it also became final.

In February 2018, the Veteran sought higher ratings for his facial scarring. A September 2018 rating decision denied the Veteran's claims, and the Veteran was notified of the rating decision on September 20, 2018. The Veteran indicated on October 1, 2018, that he wanted to ask for a reconsideration of the September 2018 rating decision and was informed on October 10, 2018, that VA would take no further action on his claim unless he provided new and material evidence, filed an appeal, or made a CUE argument regarding the September 2018 rating decision.

In July 2019, the Veteran sought a higher rating for his facial scarring. See July 2019 Fully Developed Claim (FDC). A November 2019 rating decision adjudicated the Veteran's claim. In May 2020, the Veteran filed a VA Form 10182 Notice of Disagreement but clarified in July 2020 correspondence that he was seeking to revise a Board Decision from December 2015.

In October 2020 and July 2021, the Veteran sought higher ratings for his facial scarring. However, on July 13, 2021, the Veteran filed a notification stating that he was withdrawing his claims for increased disability ratings.

On July 1, 2022, the VA received an intent to file (ITF) from the Veteran and in August 2022 received a claim for a higher rating for his facial scarring. An October 2022 rating decision adjudicated the Veteran's claim. The October 202
0, the Veteran filed a VA Form 10182 Notice of Disagreement but clarified in July 2020 correspondence that he was seeking to revise a Board Decision from December 2015.

On July 1, 2022, the VA received an intent to file (ITF) from the Veteran and in August 2022 received a claim for a higher rating for his facial scarring. An October 2022 rating decision adjudicated the Veteran's claim. The October 2022 rating decision increased the Veteran's painful scar rating from 20 percent to 30 percent effective July 1, 2022. In his December 2022 higher level review request, the Veteran stated that he was seeking an earlier effective date to March 1985 for the rating of 30 percent for his painful scars. In the March 2023 informal conference, the Veteran stated that he believed the March 1986 rating decision which granted service connection for his facial scarring did not take into consideration all of the scars shown on examination. In March 2023, the AOJ denied the Veteran's claim for an effective date prior to July 1, 2022, for the 30 percent rating assigned to his painful scarring. The Veteran appealed that decision to the Board.

In May 2023, Board issued a Decision which granted a July 1, 2021, effective date for the 30 percent assigned to the Veteran's painful scarring. The Veteran appealed the Board's May 2023 Decision to the CAVC which vacated the Board's decision as it pertained to the Veteran's claims for an effective date prior to July 1, 2021, for the 30 percent rating assigned to his painful scarring and higher ratings for his disfigurement and painful facial scarring. In a February 2024 Joint Motion for Remand (JMR), the parties specifically agreed that the Board's May 2023 Decision failed to address the Veteran's argument that his claim warranted a separate rating for facial scars under DC 7800 from October 1985.

In July 2024, the Board denied an effective date prior to July 1, 2021, for the 30 percent rating assigned to the Veteran's painful scars of the face. The decision also granted a combined percentage for the Veteran's painful scars and his disfiguring scars to equate to 50 percent. The Board's decision was implemented in a July 2024 rating decision. The Veteran filed Supplemental Claim Applications (SCAs) in February 2025, April 2025, and July 2025 seeking an effective date prior to July 2021 for his painful scars; March 2025 and July 2025 rating decisions denied the Veteran's claims.

In September 2025, the Veteran filed a SCA which listed CUE, effective date, and increased rating as the issues on appeal and identified a March 2025 rating decision as on appeal. He stated in a concurrent statement in support of claim that he was asserting a CUE claim as to the July 1967 and July 2013 rating decisions. The September 2025 rating decision on appeal denied the Veteran's claims for earlier effective dates and higher ratings for his disfigurement scarring and his painful scarring. The Veteran has appealed this rating decision to the Board.

CUE Claim

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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

At the outset, the Board notes that the Veteran asserted a CUE claim in his September 2025 SCA, attached statements, and the January 2026 hearing. However, the September 2025 rating decision on appeal to the Board in the current matter did not adjudicate the issue of CUE as to the July 1967 or July 2013 rating decisions or CUE regarding any other rating decision. Thus, even though the Veteran offered testimony as to CUE at his January 2026 hearing, the issue of C
failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

At the outset, the Board notes that the Veteran asserted a CUE claim in his September 2025 SCA, attached statements, and the January 2026 hearing. However, the September 2025 rating decision on appeal to the Board in the current matter did not adjudicate the issue of CUE as to the July 1967 or July 2013 rating decisions or CUE regarding any other rating decision. Thus, even though the Veteran offered testimony as to CUE at his January 2026 hearing, the issue of CUE in prior rating decisions is not on appeal to the Board in this matter. Therefore, the Board cannot adjudicate this issue. The appellant may resubmit a CUE claim to the AOJ or notify the AOJ that a CUE claim is still pending.

Furthermore, the Veteran's claim for CUE was adjudicated in a July 2013 rating decision, which the Veteran acknowledged in his January 2026 hearing. The Board acknowledges that the Veteran referenced a May 7, 2013, deferred rating which instructed the AOJ to adjudicate his claim - however, the Veteran misunderstands the directive. The May 2013 deferred rating decision was not instructing the AOJ to adjudicate the Veteran's claim for service connection for his scarring as of July 1967. The May 2013 deferred rating decision identified that the Veteran had a pending claim for CUE in the July 1967 rating decision and instructed the AOJ to complete any appropriate development for that unadjudicated CUE claim. A second deferred rating issued on May 29, 2013, noted that a notification letter needed to be issued to the Veteran regarding his CUE claim. The notification letter was issued to the Veteran on May 30, 2013, informing the Veteran of what evidence was necessary to substantiate his CUE claim. On June 24, 2013, the Veteran submitted a statement regarding his CUE claim and concurrently returned the VCAA response stating that he had enclosed all the remaining information and evidence he had regarding his CUE claim. He requested that VA decide his claim as soon as possible. Subsequent to receipt of the Veteran's information and VCAA notice response, the AOJ adjudicated the Veteran's claim regarding CUE in the 1967 rating decision, finding that there was no CUE in the rating decision. As noted above, the Veteran was notified of the decision on July 17, 2013. He did not appeal this decision, and it remains final.

Additionally, a January 2013 deferred rating decision mentioned by the Veteran in his hearing directed the AOJ to complete development for the Veteran's pending increased rating claim, filed in February 2012, which was ultimately adjudicated in the May 2013 rating decision.

Thus, there are no pending CUE claims on appeal to the Board in this matter.

Earlier Service Connection Effective Dates

The record shows that the Veteran has been granted service connection for two sets of scars to his face. The March 1986 rating decision granted service connection for multiple scars to the Veteran's face with disfigurement pursuant to DC 7800 and assigned an October 23, 1985, effective date. Additionally, a May 2013 rating decision granted the Veteran service connection for additional painful scars of his face pursuant to DC 7804 as of February 23, 2012. The Veteran has sought an earlier effective date for the grant of service connection for his scars prior to October 1985 and prior to February 2012. He has stated that he did not receive notification of the VA examination scheduled in 1967 or notification of the denial of his claim mailed on July 18, 1967, and that such failure to receive mail should invalidate the finality of the rating decision. See January 2026 hearing testimony. He additionally stated that the scars which formed the basis for the grant of service connection contained in the May 2013 rating decision were present in 1985 and should have been granted service connection for those scars as of his October 1985 grant of service connection for his disfigurement scars. See March 2023 informal conference.

At the outset, the Board notes that the Veteran did not appeal the March 1986 or May 2013 rating decisions which assigned the dates of service connection for his disfigurement scars and painful scars. These decisions are final. As noted above, CAVC has held that after a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on CUE. Rudd, 20 Vet. App. 296. Such so called "free-standing" earlier
2013 rating decision were present in 1985 and should have been granted service connection for those scars as of his October 1985 grant of service connection for his disfigurement scars. See March 2023 informal conference.

At the outset, the Board notes that the Veteran did not appeal the March 1986 or May 2013 rating decisions which assigned the dates of service connection for his disfigurement scars and painful scars. These decisions are final. As noted above, CAVC has held that after a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on CUE. Rudd, 20 Vet. App. 296. Such so called "free-standing" earlier effective date claims are impermissible because such claims would vitiate decision finality. Id. VA has no authority to adjudicate a "free-standing" earlier effective date claim in an attempt to overcome the finality of a prior decision. Id. at 299.

Thus, the Board also has no authority in this matter adjudicate the Veteran's claims for earlier effective dates for his grants of service connection for his disfigurement scars or his painful scars. The rating decisions which granted service connection and assigned these dates are final and, as noted above, the Veteran has not asserted a valid CUE claim to the Board in this matter such to warrant adjudication of CUE regarding the March 1986 or May 2013 rating decisions. As such, the Veteran's claims for earlier effective dates for his grants of service connection for his disfigurement scars and/or painful scars is denied.

Insofar as the September 2025 rating decision may have addressed the grants of service connection for the Veteran's disfigurement scars and painful scars, the Board also finds that the persuasive evidence of record is against finding that effective dates prior to October 1985 and February 2012 for the Veteran's facial scarring is warranted or supported by law.

1. While the Board is sympathetic to the Veteran's statements that he did not receive notification of the 1967 VA examination or the 1967 rating decision, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. 38 U.S.C. § 7104. In that regard, there is no evidence of record which would rebut the presumption of regularity such to invalidate the finality of the July 1967 rating decision. There was no notification received by VA that the mail was undeliverable to the Veteran and no mail was returned to VA. Thus, the July 1967 rating decision is final and an effective date back to July 1967 for his facial scarring is unavailable.

The Board is also aware that the Veteran has stated that his 1967 claim could have been adjudicated without the necessity for a VA examination and that § 3.655 (b) mandates that his claim should have been rated without the examination. See January 2026 hearing testimony. This argument seemingly presents a CUE claim as to the July 1967 rating decision, which as noted above, is not before the Board. Furthermore, as discussed above, the Veteran's claim for CUE in the July 1967 rating decision was denied by the AOJ in the July 2013 rating decision, which the Veteran did not appeal to the Board. That decision is also final and any claims as to CUE in that decision are also not before the Board in this matter. As such, the Board has no means available to invalidate the July 2013 decision or its finality.

Additionally, the same holds true for the Veteran's claim for an earlier effective date for service connection for painful scarring. The May 2013 rating decision granted service connection for painful scarring; the Veteran did not appeal that decision; the decision is final. There is no method by which the Board can invalidate that decision and reach back to assign an October 1985 effective date for the Veteran's painful scarring.

As to the Veteran's argument that his additional painful scarring was present on the 1985 VA examination which provided the basis for the October 1985 grant of service connection, as set forth in the JMR, the Board again notes that this presents a claim of CUE as to the March 1986 rating decision, which is not before the Board in this matter.

Furthermore, the Veteran did not raise the issue of additional scars or separate ratings after receipt of the March 1986 and December 2008 rating decisions which adjudicated his claim for service connection and a subsequent claim for a higher rating for his scars. Thus, those decisions, too, are final and the Board cannot invalidate such finality to reach back to assign an earlier effective date. See 38 U.S.C. § 7104.

Based on the foregoing, the Board finds that
the October 1985 grant of service connection, as set forth in the JMR, the Board again notes that this presents a claim of CUE as to the March 1986 rating decision, which is not before the Board in this matter.

Based on the foregoing, the Board finds that the Veteran has asserted free-standing earlier effective date claims regarding service connection for his facial scarring, which are specifically prohibited by law. Furthermore, there is no evidence of record which invalidates the finality of the prior rating decisions such that a July 1967 effective date for facial scarring or an October 1985 effective date for painful scarring is warranted or supported by the record. An effective date prior to October 1985 for the grant of service connection for disfigurement facial scarring and an effective date prior to February 23, 2012, for painful facial scarring, then, is denied, as the persuasive evidence of record is against the claims. Accordingly, as the persuasive evidence of record is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Date for Increased Rating

As to the Veteran's claim regarding an effective date prior to July 1, 2021, for the 30 percent rating for his painful scarring, the Board finds that the evidence of record is against the Veteran's claim.

First, as specifically indicated in his March 2023 informal conference, the Veteran is attempting to assert a CUE claim as it pertains to the March 1986 rating decision failing to assign a rating for his painful scars. The Veteran did not appeal the March 1986 rating decision. As discussed above, the issue of CUE in prior rating decisions is not before the Board in this matter. And, insofar as such a claim would be before the Board, the Board finds that the Veteran's statement that the AOJ did not properly evaluate the evidence in the 1986 rating decision does not properly assert a CUE claim. If a veteran is only asserting disagreement with how the RO evaluated the facts before it, or if a veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).

Finally, as noted by the Board in its July 2024 Decision, VA received the Veteran's intent to file on July 1, 2022. Pursuant to the regulations regarding effective dates of increased ratings, the earliest possible effective date for any rating assigned pursuant to the Veteran's July 1, 2022, claim is the year prior to receipt of the claim. Thus, an effective date of July 1, 2021, for the increased rating assigned as a result of the July 1, 2022, intent to file is the earliest possible effective date. Prior to the July 1, 2022, intent to file, the Veteran did not have any pending requests for higher ratings which remained unadjudicated. Furthermore, besides his assertion that he should be granted service connection for his painful scars as of October 1985, the Veteran has not identified any date prior to July 1, 2021, on which a 30 percent rating for his painful scars could be assigned.

Thus, the Board finds that an effective date prior to July 1, 2021, for the 30 percent rating assigned to the Veteran's painful scars is denied. Accordingly, as the persuasive evidence of record is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is
2021, on which a 30 percent rating for his painful scars could be assigned.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Disfigurement Scarring

Painful Scarring

The Veteran has sought a higher rating for his disfigurement scarring, which has been assigned a 30 percent rating pursuant to DC 7800, and for his painful scarring which has been assigned a 30 percent rating pursuant to DC 7804 as of his July 1, 2021, claim.

In September 2022, the Veteran underwent a VA examination regarding his scars. The examiner found that the Veteran had 5 scars of his head, face, or neck. None of the scars were unstable. None of the scars had elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. No scar was longer than 6 cm and two scars were found to be .6 cm wide. Three scars had hypopigmentation and all scars were tender to palpitation. The total area of hypopigmentation was 8.01 sq centimeters. The Veteran had tissue loss/distortion of his right eye and anatomical loss of his right eye.

There are no other medical records of evidence which assess the severity of the Veteran's scars pursuant to the applicable rating criteria.

DC 7800 allows for ratings higher than 30 percent when there is 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 which is assigned a 50 percent rating. An 80 percent rating is assigned when there is 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.

Note (1) of DC 7800 establishes that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are:

- Scar 5 or more inches (13 or more cm.) in length.

- Scar at least one-quarter inch (0.6 cm.) wide at widest part.

- Surface contour of scar elevated or depressed on palpation.

- Scar adherent to underlying tissue.

- Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.).

- Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).

- Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.).

- Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

DC 7804 provides a maximum rating of 30 percent for five or more scars that are unstable or painful. There is no rating higher than 30 percent allowed pursuant to DC 7804. As such, as to the Veteran's claim for a higher rating for his painful scars pursuant to DC 7804 is denied; there is no legal basis upon which to award a higher rating, as the maximum possible rating has already been assigned. The Veteran's claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (
sq. cm.).

As for his claim for a higher rating pursuant to DC 7800, the Board finds that the persuasive evidence of record is against such a claim. The Veteran does not have visible or palpable tissue loss and either gross distortion or asymmetry of more than his right eye (one feature) such to support a 50 or 80 percent rating pursuant to that criteria. Furthermore, the evidence of record is against finding that he has four or more characteristics of disfigurement such that a 50 or 80 percent rating is supported. As such, there is no basis for a rating higher than 30 percent for the Veteran's disfiguring scars at any time during the course of the appeal.

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In so finding, the Board has considered the Veteran's statements, including his hearing testimony. The Board finds that though the Veteran is competent to report observable symptoms he experienced through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465 (1994). The identification and evaluation of the severity of the Veteran's scars requires medical expertise that the Veteran has not shown he possesses. The medical findings, as provided in the examination report, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs lay statements in support of his claim for a higher rating. Additionally, the Veteran has not provided any evidence which would support a rating higher than 30 percent for his disfigurement facial scarring or provided any information regarding the basis for such claim.

Accordingly, as the persuasive evidence of record is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Ardie A. Bland

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.P.

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.

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