Citation Nr: 1301259 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-24 826A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for the residuals of a bilateral reduction mammoplasty, to include the issue of whether a separate rating is warranted for scarring. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active military service from June 1997 to June 2001. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2002 rating decision rendered by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The file was subsequently transferred to the RO in Columbia, South Carolina. Later, the file was transferred to the Nashville, Tennessee, RO. In July 2008, the Veteran testified at a video conference hearing before a Veterans Law Judge who is no longer employed at the Board. A copy of the transcript of that hearing is of record. The Veteran was given the opportunity to request another Board hearing, but declined in August 2012. In September 2008, October 2009, and March 2011 the Board remanded the claim for further development. A July 2012 rating decision granted service connection for a left hip condition. Therefore this issue is no longer on appeal. In August 2012, the Veteran submitted an appeal satisfaction notice withdrawing any remaining issues that had been remanded. However, the same month she stated that she did not wish to appear at a hearing and to consider her case on the evidence of record. In November 2012, her representative submitted a post-remand brief. The Board construes the latter two statements has an intent to not to withdraw her appeal. The Board also notes that in the November 2012 brief the representative raised the issue of entitlement to special monthly compensation (SMC). The record reflects that SMC based on anatomical loss was previously denied in a September 2007 rating decision. To the extent that the representative's statements are meant to constitute a new claim for SMC, this issue is referred to the RO for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's bilateral breast reduction resulted in removal of 854 grams of tissue from the right breast and 792 grams of tissue from the left breast. She has competently testified that her bra size changed from 38DD to 38B. Such findings reflect a significant alteration of size of the Veteran's breasts. CONCLUSION OF LAW The criteria for an initial 50 percent rating for bilateral breast reduction have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.6, 4.7, 4.84, 4.116, Diagnostic Code (DC) 7626 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. With few exceptions, the regulations implementing this law are applicable to all claims filed on or after the date of enactment, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act (VCAA); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA must notify the Veteran of evidence and information necessary to substantiate her claim and inform her whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was provided notice of the VCAA in October 2001 prior to the initial adjudication of her claim for service connection in a May 2002 rating decision. Additional letters were sent in August 2006, October 2008, and March 2011. The VCAA letters indicated the types of evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain both her private and VA medical treatment records. The Veteran received additional notice in March 2006 pertaining to the downstream disability rating and effective date elements of the claim, with subsequent adjudication of her claim in a July 2012 Supplemental Statement of the Case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). It is well to observe that service connection for breast reduction surgery has been established and an initial rating for the condition has been assigned. The Veteran has been awarded the benefit sought, and the claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. As such, 38 U.S.C.A. § 5103(a) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Also, it is of controlling significance that, after awarding the Veteran service connection and assigning an initial disability rating, she filed a notice of disagreement contesting the initial rating determination. See 73 Fed. Reg. 23353-23356 (April 30, 2008) (amending 38 C.F.R. § 3.159(b) to add subparagraph (3), which provides VA has no duty to provide section 5103 notice upon receipt of a notice of disagreement). The RO furnished a Statement of the Case that addressed the initial rating assigned, included notice of the criteria for a higher rating and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting her appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). There is no prejudice to the Veteran in proceeding with the issuance of a final disposition. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). There is no indication that the outcome of the case has been affected, and the Veteran has been provided a meaningful opportunity to participate effectively in the processing of her claim. The content of the subsequent notice provided to the Veteran fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). 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(a); 38 C.F.R. § 3.159(c), (d). The Veteran's relevant service, VA and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran was afforded a VA examination in August 2007, March 2009, and June 2011. These examinations were thorough in nature, based upon a review of the Veteran's entire claims file, and provided relevant findings that are sufficient to adjudicate the claim. Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder). The action directed in the remand has been completed in full. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Under such circumstances, there is no duty to provide another examination or to obtain an additional medical opinion. Id. Accordingly, the requirements of the VCAA have been met by the RO. Having determined that the duty to notify and the duty to assist have been satisfied, the Board turns to an evaluation of the Veteran's claim on the merits. Increased Rating for Breast Reduction Surgery The Veteran asserts that she is entitled to a compensable rating for the residuals of bilateral reduction mammoplasty under 38 C.F.R. § 4.116, Diagnostic Code 7626. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Specific diagnostic codes will be discussed where appropriate below. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson, 12 Vet. App. at 126. 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 for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Diagnostic Code 7626, surgery of the breast, provides for ratings depending on the type of breast surgery involved. Note 4 under Diagnostic Code 7626 states that a simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but lymph nodes and muscles are left intact. A wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. A noncompensable rating is assigned following wide local excision without significant alteration of size or form for both or one breast. A 30 percent rating is assigned following simple mastectomy or wide local excision with significant alteration of size or form of one breast, and a 50 percent rating is assigned for both breasts. 38 C.F.R. § 4.116, Diagnostic Code 7626. The schedule of ratings for skin were amended on October 23, 2008. However, because the Veteran filed her claim prior to the regulation change and has not requested a review under the new regulations, she will be rated under the codes in effect prior to October 23, 2008. 73 FR 54710, October 23, 2008. Service treatment records reflect that the Veteran was seen in a plastic surgery clinic in November 2000 and complained of large breasts that caused low back pain not effectively treated with Motrin. She also complained of shoulder grooving and reported her current bra size was 38DD. On physical examination, the plastic surgeon described large pendulous breasts, with grade II ptosis. The plastic surgeon stated that the Veteran was a candidate for reduction mammoplasty. An operation report shows the Veteran underwent reduction mammoplasty in December 2000. Findings noted in the operation report were enlarged, ptotic breasts. The December 2000 pathology report, which was obtained and added to the record while the case was in remand status, states the excised left breast tissue consisted a 792 gram mass, which was 35.5 by 13.5 by 4.0 centimeters of skin and underlying fibroadipose tissue. Excised right breast tissue consisted of an 854 gram mass of seven fragments of skin and underlying fibroadipose tissue measuring 26.0 by 24.0 by 4.0 centimeters in aggregate. The final diagnosis for each breast was breast tissue, excision, mild fibrocystic change with chronic mastitis. In May 2001, the plastic surgeon said the incisions were well-healed. Size and shape were good, and the breasts were soft with no evidence of fat necrosis. In conjunction with her appeal, the Veteran states her bra size changed from 38DD to 38B, and she states she suffers from hypersensitivity in the area of both areolas, which were removed and reattached during the in-service surgery. She in effect argues the attendant discomfort should be rated as analogous to painful and tender scars. A May 2006 VA examination reflects that the Veteran had mammoplasty in December 2000. She denied any complication from breast reduction. She was diagnosed with bilateral breasts with no residual functional impairment. An August 2007 VA examination reflects that the Veteran had a bilateral reduction because of backache and heaviness. The right breast had an inverted T-shaped scar, the transverse scar measured 27 cm and the vertical scar at the mid of the T measured 6 cm and the left breast, inverted T-shaped incision measured 25 cm and the lower vertical scar measured 5 cm. The areolas were removed and restitched with both nipples. The scar was "healthy" and there was no keloid formation or any redness. The scar was round at the level of the areola on both sides. The Veteran had another VA examination March 2009. She reported that she had a bilateral breast reduction that reduced her breast size from 36 DDD to 36 B. She stated that she had sensitivity to temperature resulting in breast becoming stimulated. The VA examiner noted that there was a hyperpigmented transverse incision measuring 24 cm in length: horizontal hyperpigmented incision of center breast measuring 5 cm in length. There was no attachment of underlying skin; no tenderness; or incisional defects. (See also June 2009 VA examination). A June 2011 VA examination reflects review of the claims folder by the VA examiner. The examiner rendered a diagnosis of bilateral reduction mammoplasties for chronic back pain, symptoms gone post-procedure, with asymmetry of the breasts. The upper and lower medial aspect of the right breast was slightly less full than the left side, and the right breast was on the outer aspect than the medial aspect. The reduction mammoplasty had no significant effects on usual occupation and does not affect usual daily living activities. The Veteran had a well-healed scar approximately 27.1 cm long x 0.3 cm wide anterior axillary line of the right breast and 24.2 cm long x 0.3cm wide smooth and symmetrical contour or the left breast. The Veteran was diagnosed with reduction mammoplasties for chronic back pain, symptoms gone post procedure, with asymmetry of the breasts. The upper and lower medial aspect of the right breast was slightly less full on the left side and the right breast was fuller on the outer aspect then the medial aspect. There were no significant effects or problems associated on usual daily activities. At her July 2008 video conference hearing, the Veteran testified as to her belief that her breast surgery involved a significant alteration of the size or form of both breasts. She further testified that she was a double-D brassier cup size prior to the surgery and a B brassier cup size following surgery. Upon review, the Board finds that an initial 50 percent rating is warranted based on significant alteration of size of the Veteran's breasts. The December 2000 pathology report shows that the bilateral breast reduction surgery resulted in removal of 854 grams of tissue from the right breast and 792 grams of tissue from the left breast. The Veteran competently testified that her bra size changed from 38DD to 38B. The Board finds the pathology report along with the Veteran's testimony to be reflective of a significant alteration in size of her breasts. Therefore, she is entitled to a 50 percent rating under Diagnostic Code 7626. The Board has also evaluated whether a separate rating for the breast scars is warranted. The Veteran is not entitled to a higher rating under Diagnostic Code 7801 because she does not have a scar with an area exceeding 39 sq. cm. According to the June 2011 VA examination, the scar on the right breast was approximately 27.1 cm long x 0.3 cm wide while the scar on the left breast was 24.2 cm long x 0.3 cm wide. A rating is also not warranted under Diagnostic Code 7803 because there were no findings of superficial unstable scars, and a rating is not warranted under Diagnostic Code 7805 because there is no indication that any scars limit function of an affected part. 38 C.F.R. § 4.118. In June 2011, the scars were described as well-healed while in March 2009 there was said to be no attachment of underlying skin and no incisional defects. Although the Veteran described hypersensitivity and tenderness of the areolas, she did not complain of pain or limitation of motion due to scarring. In fact, the August 2007 VA examiner stated that the areola scar was "healthy" and there was no keloid formation or any redness. The scar was round at the level of the areola on both sides. She testified that the hypersensitivity was not painful just irritable, as indicated on pages 9 and 10 of the hearing transcript. As noted, the June 2011 evaluation found that the scars are well-healed and the March 2009 evaluation specifically stated that there is no tenderness associated with the scarring. Therefore, the record contains no evidence showing that the Veteran is entitled to a higher rating at any point during the instant appeal, no staged ratings are appropriate. See Fenderson, supra. 38 C.F.R. § 4.118, Diagnostic Code 7804. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The record does not reflect that the Veteran's bilateral breast reduction is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that there is no symptomatology associated with the Veteran's service-connected disability that is not adequately compensated by the schedular criteria. ORDER An initial 50 percent evaluation for residuals of a bilateral reduction mammoplasty is granted, subject to the criteria applicable to the payment of monetary benefits. ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs