Citation Nr: 1000127 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 08-04 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for gynecomastia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, J.A. ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for gynecomastia and afforded a non-compensable rating. In the Veteran's substantive appeal, he requested a hearing before a member of the travel board. The Veteran was afforded a hearing in August 2009. Subsequent to the August 2009 hearing, the Veteran submitted evidence and a written waiver, waiving a review of this evidence by the RO. Therefore, the Board has the jurisdiction to consider the new evidence pursuant to 38 C.F.R. § 20.1304(c). The Board notes that the Veteran has raised psychological manifestations, with regard to his service-connected gynecomastia. Major depressive disorder was diagnosed and a psychiatric progress note dated in February 2006, showed that the Veteran was having psychological problems related to his gynecomastia. The issue of a secondary claim of depression due to the Veteran's gynecomastia is referred to the RO. FINDING OF FACT The Veteran's service-connected gynecomastia is manifested by occasional pain in his pectorals, tenderness, enlarged tissue mass and enlarged areolas. There is no evidence of lesions, excisions, malignant neoplasms, scars or surgery. CONCLUSION OF LAW The criteria for an initial compensable evaluation for gynecomastia have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.116, 4.118, Diagnostic Codes 7626-7628, 7801-7805 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2009). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. 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 (2009). When there is an approximate balance of positive and negative 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 veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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), citing Gilbert, 1 Vet. App. at 54. II. Analysis The RO assigned an initial zero percent rating to the Veteran's service-connected gynecomastia under the provisions of Diagnostic Code 7627. The Veteran's service-connected gynecomastia was awarded on a secondary basis, due to taking VA prescribed medication, which caused the disability. The Veteran's main contentions are related to the psychological repercussions of the disability. The Board has referred the psychological repercussions to the RO to adjudicate. As the Veteran is rated under a physiological Diagnostic Code, the Board must look at the physical manifestations of the disability when rating the disability. The Veteran's records note a diagnosis of gynecomastia in 2004, most likely due to the medication spironolactone, which the Veteran was advised to stop taking. January 2005 medical records document a history of gynecomastia for the past year. The Veteran reported that he experiences occasional pain when pressure is applied to his chest. In August 2005, the Veteran displayed excess breast tissue with enlarged nipple diameter, which was non-tender to palpation. The examiner stated that he would recommend a mammogram and referral to a plastic surgeon. The Veteran went for a plastic surgery consultation in September 2005. The examiner noted moderately enlarged bilateral breasts with enlarged nipple areolar complex. The examiner explained that the Veteran has three options: liposuction, breast reduction or a two-step procedure to reduce breast size. Based on the Veteran's cardiac history, he was advised to seek cardiac follow-up. There are no records showing that the Veteran scheduled an appointment for surgery. A psychiatric progress note dated in February 2006, showed that the Veteran was having psychological problems related to his gynecomastia. In July 2007, the Veteran presented for pain in his upper right pectoral. In September 2007, the Veteran's records show complaints regarding his gynecomastia. The records are absent for scarring. In addition, the Veteran did not elect to have surgery for the gynecomastia. The Veteran's physician wrote a letter stating that the Veteran has body disfigurement with gynecomastia and has complained about his condition on several occasions. In addition, the Veteran's pastor and his wife submitted statements that the Veteran's gynecomastia has had a negative impact on his life. The Veteran was afforded a VA examination in April 2008. The examiner reviewed the Veteran's case file and noted that the Veteran has bilateral gynecomastia, but does not experience pain or secretion from the nipples. Examination revealed that the Veteran's right breast was larger than his left and no masses were palpable in either breast. The Veteran is currently rated under Diagnostic Code 7627, for malignant neoplasms of gynecological system or breast. Under Diagnostic Code 7627, a single disability rating of 100 percent is warranted for malignant neoplasms of the breast. This 100 percent disability rating shall continue beyond the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (2009). If there has been no local reoccurrence, the resulting disability rating shall be based on residuals. As the Veteran has not undergone surgery for gynecomastia, he is not eligible for a compensable rating under this Code. The Board has also considered the applicability of other Diagnostic Codes for rating the Veteran's gynecomastia. Disorders of the breast are rated under 38 C.F.R. § 4.116. Diagnostic Code 7626 assigns ratings for surgery of the breast. Under Diagnostic Code 7628, gynecomastia is either rated as an impairment of the urinary system, the gynecological system, or is rated as a skin disorder. The Veteran has not undergone a mastectomy or any other breast surgery, nor does he have urinary problems and therefore, no diagnostic codes under § 4.118 are applicable. The Board has also considered an evaluation for scaring under Diagnostic Codes 7801-7805. Evaluations for scars located on places other than the head, face or neck implicate several diagnostic codes. Deep scars or those that cause limited motion and cover an area exceeding 6 square inches warrant a 10 percent evaluation. Superficial scars that do not cause limited motion and cover an area of 144 square inches or greater warrant a 10 percent evaluation. Unstable, superficial scars warrant a 10 percent evaluation. Superficial scars which are painful on examination warrant a 10 percent evaluation. Other scars are rated on limitation of function of the affected part. However, no evidence of scarring is of record and therefore, the Veteran is not entitled to a compensable rating under these Codes. In this case, the Board finds no provision upon which to assign a higher rating for gynecomastia. A preponderance of the evidence is against the Veteran's claim for a higher initial rating for gynecomastia. Since service connection has been in effect, the disability has been properly rated as zero percent disabling. Therefore, the appeal is denied. III. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board concludes that the Veteran has been afforded appropriate notice under the VCAA. The Veteran received a VCAA notice letter in October 2005, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection on a secondary basis. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The VCAA letter stated that he would need to give VA enough information about the records so that it could obtain them for him. Finally, he was told to submit any medical records or evidence in his possession that pertained to the claim. The Court in Dingess/Hartman v. Nicholson holds that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding degree of disability and effective date of the disability, the Veteran was provided with this notice in a January 2006 letter. While this notice was sent after the October 2005 decision, the Board determines that the Veteran is not prejudiced. The Veteran's claim was readjudicated in January 2008. Additionally, the Veteran has had ample opportunity to participate effectively in the processing of his claim and testified at a hearing before the undersigned in August 2009. In any event, the Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp 2009); 38 C.F.R. § 3.159 (2009). In connection with the current appeal, VA has obtained the Veteran's service treatment records, VA treatment records, and private treatment records. VA also provided the Veteran with a VA examination in connection with his claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to an initial compensable rating for gynecomastia is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs