Citation Nr: 1120713	
Decision Date: 05/27/11    Archive Date: 06/06/11

DOCKET NO.  08-19 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii



THE ISSUE

Entitlement to service connection for residuals of breast reduction surgery.



REPRESENTATION

Appellant represented by:	Missouri Veterans Commission



ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from July 2002 to February 2007.

This matter comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for residuals of breast reduction surgery.  Jurisdiction over the claims file later was transferred to the RO in Honolulu, Hawaii.


FINDINGS OF FACT

The in-service breast reduction surgery constituted ameliorative treatment for a pre-existing condition, and did not result in a permanent worsening of the disorder; no unusual effects of the surgery or residual pathology that is not a usual effect of such procedure are shown.


CONCLUSION OF LAW

Disabling residuals of ameliorative breast reduction surgery were not incurred in or aggravated by service.  38 U.S.C.A. § 1111 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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 in accordance with 38 C.F.R. § 3.159(b)(1) (2010).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none.

In February 2007, VA sent the Veteran a letter informing her of the types of evidence needed to substantiate her claim and its duty to assist her in substantiating her claim under the VCAA.  The letters informed the Veteran that VA would assist her in obtaining evidence necessary to support her claim, such as medical records, employment records, or records from other Federal agencies.  She was advised that it is her responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to her claim.  See 38 C.F.R. § 3.159(b)(1).  Although no longer required, the appellant was also asked to submit evidence and/or information in her possession to the RO.

The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the July 2007 rating decision, May 2008 SOC, and March 2010 and August 2010 SSOCs explained the bases for the RO's actions, and the SOC and SSOCs provided her with additional periods to submit more evidence. 

With regard to VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and VA treatment records.  The STRs note that the Veteran had breast reduction surgery on December 14, 2004, at a medical facility at Fort Sam Houston, but the hospital's actual surgical records do not appear in the file.  The treatment records leading up to the surgery and the post-surgical treatment records are in the file.  In particular, the post-surgical STRs note the Veteran's post-operative treatment, which is relevant to the claim on appeal.  As will be discussed in greater detail below, the determinative issue in this matter is whether there are current residuals from the breast reduction surgery in service for which service connection can be granted.  For this reason, the surgical records are not germane to the issue on appeal.  Thus, even though the surgical records are not in the claims file, the Board has sufficient information to make an assessment of whether there are now disabling residuals of the surgery.  The Veteran was afforded a VA examination in April 2007 addressing whether there are any current symptoms associated with the breast reduction surgery.  The examination report and opinion obtained contains sufficient information to decide the issue on appeal, and further examination is not necessary.  See Massey v. Brown, 7 Vet. App. 204 (1994).

Notwithstanding the lack of surgical records, it appears that all obtainable evidence identified by the Veteran relative to her claim has been obtained and associated with the claims file, and neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices.

In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.  This requirement was fulfilled in the February 2007 letter which VA sent to the Veteran.

Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA, as to the issues decided in the present decision.  Therefore no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran.  The Court of Appeals for Veteran Claims has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Analysis

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010).

Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be:  (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).

Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition.  38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  The Court of Appeals for Veterans Claims has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be."  Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000).

A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b).  Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

Regarding the question of aggravation of a pre-existing condition, the law as interpreted in Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), essentially mandates that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.

As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein.  The burden of proof is upon VA to rebut the presumption by producing clear and unmistakable evidence.  See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993).  The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  38 C.F.R. § 3.304(b)(1).

Determinations regarding the pre-existence of a disability should be based on medical judgment derived from accepted medical principles, and the clinical factors pertinent to the basic character, origin, and development of such injury or disease.  History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles regarding incurrence, symptoms, and course of the injury or disease, together with all other lay and medical evidence concerning the inception, development, and manifestations of the impairment.  38 C.F.R. § 3.304(b).

Under longstanding law, once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306.  See VAOPGCPREC 3-2003 (July 16, 2003).  VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153.  However, if VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars and absent or poorly functioning parts or organs, will not be considered service connected, unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1).

Congenital or developmental defects are not considered diseases or injuries for VA compensation purposes.  See 38 C.F.R. § 3.303(c), 4.9.  However, if the congenital or development defect was subject to superimposed injury or disease, the resultant disability might be service connected.  VAOPGCPREC 82-90 (July 18, 1990).  A congenital disease (as opposed to a defect) can be granted service connection if manifestations of the disease in service constitute aggravation of the condition.  Id.

The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.  On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.  Id.

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the 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.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

The Veteran entered active duty in July 2002.  STRs at entry into service do not mention any problems pertaining to the breasts but do note that she was overweight, though within the body fat requirements for the military.  

A September 2002 medical record notes complaints of sciatic tenderness and heat rash between the breasts.

In May 2003, the Veteran was seen complaining of back pain times two months.  It was noted that her breasts were large for her size, and that she had dyspnea when laying flat because of them.  The Veteran had lower back sprain and felt that this was due to her large breasts.  It was noted that she wore 48DD bras and needed to wear three bras in order to run in her final physical training test.  It was recommended that the Veteran be evaluated for breast reduction surgery at her next duty station.

A July 2003 outpatient clinic visit shows that the Veteran had a history of gynecomastia and wore a 40DD bra.  She also had gained about 15 or 20 pounds since being on birth control.  She had some creasing in her upper shoulders secondary to her bra straps, and X-rays showed a very mild scoliosis.  She desired to be evaluated for breast reduction surgery.  The assessment was thoracic spine pain and gynecomastia.  A surgery consultation was planned.

A September 2003 gynecology examination noted the Veteran's complaints of breast pain.  It was noted that she had large breasts with pain in the shoulders and lower back, and bra strap lines.  An October 2003 outpatient clinic visit note shows she had been referred to surgery twice for symptomatic gynecomastia and, according to the Veteran, had been denied due to her history of obesity.  She was currently in the Army overweight program.  

A November 2003 outpatient clinic note shows the Veteran had complaints of upper back pain because of her breast size.  She also had trouble running because of the pain that it caused in her chest and upper back.  She had deep strap marks in her shoulders and also was having some low back pain.  She indicated that she had experienced this problem since the previous year, and asked about a referral for a breast reduction consultation.

In January 2004, an outpatient clinic visit note shows the Veteran was following up on her request for breast reduction surgery.  She had been turned down three times by Tricare.  Her past medical history included obesity and gynecomastia.  

An April 2004 outpatient internal medicine clinic visit notes the Veteran was seen again complaining of back pain, primarily shoulder pain, due to her bra straps cutting into her shoulder.  She had been trying unsuccessfully for the past year to get Tricare to approve breast reduction surgery.

A June 2004 medical record shows the Veteran was being seen for breast reduction surgery.  She had been in the military for two years and all of the problems had started at Fort Eustis.  She had markings on her shoulders and indentations from bra straps.  It hurt to run and do overhead work.  At one time she had been overweight but now met the military weight requirements.  She had to wear three or four bras during physical training tests.  It was noted that she had tried to obtain approval for surgery through Tricare but was denied twice.  She had been to physical therapy and treated by a chiropractor.  

On objective evaluation, the Veteran's breasts were large and pendulous.  She had depressions on her shoulders from bra straps and also had dark pigmentation from trauma from the straps.  Her breasts were not tender to palpation, nor were there any masses.  The assessment was large breasts and chronic back and shoulder pain, secondary to the large breasts.

A September 2004 orthopedic consult shows the Veteran complained of upper back pain particularly with running, which she related to having a large breast size.

A separate September 2004 telephone consult notes that the Veteran stated that she had been approved for a breast reduction surgery consultation and would be leaving in October, but needed letters supporting the consult to take with her.  A letter dated in May 2004 was submitted from a chiropractor noting that in his opinion the Veteran would benefit from a breast reduction operation, as she might be adding to her back problems because of the stress on her mid and low back due to the imbalance caused by her large breasts.  She informed him that she had to wear multiple bras in order to support the weight of her breasts during physical exercise, and those bra straps left deep, painful indentions in her shoulders, which the chiropractor had seen.  

An October 2004 statement of medical necessity also was submitted noting that the Veteran had a long history of pain related to large breasts and first sought help to arrange for a breast reduction consultation in June 2004.  She had been in the Army since 2002 and had difficulties throughout that time.  She had pain with running despite wearing three to four bras.  At one time she was overweight by Army standards, but had met the standard for over one year and still had the same difficulties.  She also had had no success with physical therapy and repeated chiropractic treatments over the last two years.  It was felt that the Veteran would greatly benefit from a breast reduction.

A December 13, 2004, plastic surgery consult notes chronic back pain exacerbated by physical training.  She had tried support bras, physical therapy, and chiropractic treatment.  She was scheduled for a breast reduction surgery the following day.  A later December 2004 telephone consult notes that the Veteran had breast reduction surgery and was prescribed Oxycontin for pain, but was out and needed a refill.

A January 4, 2005, emergency care record notes that the Veteran had bilateral breast reduction surgery about two weeks before on December 14, 2004, at Fort Sam Houston and now had pain, swelling, and discharge from the operative site.  She was on Percocet, Oxycontin, and Oxycodone.  On physical examination there were areas of wound breakdown under both breasts, the right more than the left, with serosanguineous discharge on the left.  There also was mild erythema and induration.  The assessment was postoperative wound breakdown.  A separate January 6, 2005, emergency care record notes the Veteran was status post breast reduction surgery and now had increased discharge from both breasts, the left more than the right.  Physical examination was notable for a warm incision on the left breast and scars.  She was not on antibiotics; she only was taking Motrin, per the Veteran.  However, a separate January 6, 2005, emergency treatment record shows an assessment of wound infection.  The Veteran stated that the left breast was draining more than the right, with red and yellow puss.  The breasts also were very tender.  A January 7, 2005, plastic surgery consult notes that there was adequate shape and volume with minimal wound breakdown, mainly in the left breast.  A January 12, 2005, treatment record notes that the Veteran had undergone recent breast reduction surgery in December 2004 and still complained of upper back pain due to "heavy breasts."    

Plastic surgery clinic records dated in February 2005 note that the Veteran's incisions were healing well.  She had left vertical scar puckering more than the right.  A stitch was exposed in the left and was removed.  The assessment was status post breast reduction; doing well.  It was hopeful that the breasts would still settle into the scar.  A later February 2005 record notes the incisions were healing well with minimal hypertrophy and dark discoloration.  There was adequate shape.  The assessment was minimal scar hypertrophy.  Silicone gel was given.

Treatment records dated in February 2005 and March 2005 note that there were no breast symptoms.  However, a November 2006 Medical Evaluation Board shows complaints of breast tenderness and related tingling of the scar lines from her breast reduction.  The Veteran was later medically discharged due to her back disability.  

After service, the Veteran underwent a general VA examination in April 2007.  On physical examination of the skin, there were scars around each areola and inferior mid breast from the areola to the chest wall.  The scars were well-healed, hyperpigmented, and not depressed.  The left breast scar measured 12cm and the right breast scar measured 10cm.  There was no tenderness or skin breakdown.  Physical examination of the breasts noted no dominant masses, diffuse nodularities, nipple abnormalities, gynecomastia, or axillary adenopathy.  The only residuals of the surgery were scars, as noted.  There was no difference in size of each breast, nor difference in contour.  The Veteran stated that she was prevented from doing sports and that her breasts had a moderate effect on exercise, recreation, bathing, dressing, and driving.  The diagnosis was bilateral breast pain status post breast reduction.  

An August 2008 VA primary care note shows the Veteran reported that she had breast reduction surgery in December 2004 at Fort Sam Houston for ongoing low and upper back pain with no relief of pain.  She said her breast size had increased back to pre-surgical size and that she had complaints of periaeolar numbness and pain.  It was also noted that the Veteran was obese and reported that she had gained 60 pounds over the past year between 2007 and 2008.

A September 2008 VA treatment record notes that on examination of the breasts there were well-healed scars consistent with breast reduction.  The breasts were soft, nontender, and had no distinct masses, nipple discharge, or axilla lymphadenopathy.

There is no other post-service treatment noted for any residuals of the breast surgery reduction.  In a June 2008 statement, the Veteran stated that she never would have agreed to breast reduction surgery if her doctor had told her that the surgery would not relieve her back pain. 

The Board finds that the preponderance of the evidence is against a finding of service connection for residuals of breast reduction surgery.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306(b)(1). 

While the Veteran's gynecomastia was not noted at entry into service, it is considered a congenital defect that pre-existed service.  Moreover, the breast reduction surgery in service was meant to ameliorate the problems she was having as a result of her breast size.  Thus, the Veteran can only receive disability compensation for any unusual surgical residuals, unless the gynecomastia was otherwise aggravated by service.

After the Veteran had surgery to reduce the size of her breasts in December 2004, she initially had pain and drainage, particularly from the left breast, but she had no further treatment for her breasts after January 2005.  She continued to have pain in the breasts and numbness around the incision sites in November 2006, although breast examination had been normal in February and March 2005.  

After service, she further complained of pain and numbness in the breasts in August 2008, though they were not symptomatic in April 2007 or on physical examination in September 2008.  She had scarring on the breasts, but the scars also were not symptomatic and were noted to be consistent with her breast reduction surgery.  She also did not seek any other treatment for her breasts.  She noted that they were back to the size they were prior to the breast reduction surgery in August 2008, but also indicated that she had gained 60 pounds that year.  

The record does not show that the Veteran has any residual disability as a result of her in-service breast reduction surgery that can be awarded disability compensation.  The medical evidence shows scars that are asymptomatic as a result of the surgery; however, a scar is a normal consequence of the surgery she underwent in service.  38 C.F.R. § 3.306(b) (1).  The Veteran also complains of pain and numbness in the breast, but she also had pain prior to the surgery and is no worse off than she was before the surgery.  Poorly functioning parts that are the usual effects of ameliorative surgical treatment performed to correct pre-existing conditions or congenital or developmental defects may not be granted service connection.  38 C.F.R. § 3.306(b)(1).  There is no medical evidence otherwise indicating that the Veteran has any residuals of the in-service surgery beyond the described post-surgical scarring, pain, and numbness.  

The Board does not find that the evidence shows the existence of unusual surgical residuals which may be considered service connected.  There also is no evidence of aggravation of the Veteran's gynecomastia in service.  After recovering from the initial post-surgical symptoms, she did not have any further complaints regarding her breasts in her remaining three years of service.  To the extent that she continued to complain of back pain, she was granted service connection for degenerative joint disease of the thoracolumbar spine in September 2007.  

The Board acknowledges that the Veteran is competent to give evidence about what she experienced; for example, she is competent to discuss her current experienced symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis.  Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Similarly, the Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  

In the present case, the Veteran's symptoms associated with her breast reduction surgery including pain and numbness are found to be capable of lay observation, and thus her statements constitute competent evidence.  The Board must now consider the credibility of such evidence.  As noted, the post-service records show no treatment for any residuals of breast surgery, and the VA examination in April 2007 and September 2008 showed that aside from asymptomatic scarring, breast examination was normal.  

In light of these factors, any current statements to the effect that she has experienced any unusual symptomatology associated with her breast reduction surgery, while competent, are not deemed to be credible.  Moreover, there are no competent opinions showing that she has any unusual symptoms associated with the in-service breast reduction surgery.  Accordingly, the existence of unusual surgical residuals which may be considered service connected is not established by either the competent evidence or the Veteran's own statements.

We recognize the sincerity of the arguments advanced by the Veteran that she has residuals of breast reduction surgery which warrant service connection.  However, there is no objective evidence supporting the Veteran's assertions.  Moreover, resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, supra.  However, unusual disabilities as a result of breast reduction surgery require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions as to cause or etiology.  

Because the preponderance of the evidence is against the claim for service connection for residuals of breast reduction surgery, the benefit-of-the-doubt doctrine is inapplicable, and the claim on this basis must be denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.  


ORDER

Entitlement to service connection for residuals of breast reduction surgery is denied.



____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs