Citation Nr: 1305048 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-00 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected mastodynia, status post quadrantectomy, both breasts. 2. Entitlement to an initial disability rating in excess of 10 percent for residual scars, status post bilateral quadrantectomy. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to October 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for mastodynia, status post bilateral quadrantectomy with residual scars, and assigned a 10-percent disability rating, effective October 18, 2008. The Board remanded the Veteran's appeal in February 2012 for further development. In a May 2012 rating decision, the RO increased the rating for mastodynia, status post quadrantectomy, of both breasts to 50 percent based on the rating criteria for breast surgery, effective October 18, 2008. The RO also assigned a separate 10-percent disability rating for two painful scars, also effective October 18, 2008. Special monthly compensation was also awarded, effective October 18, 2008, based on the loss of use of breast tissue. The Board's February 2012 remand included a claim of entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. That claim was also granted in the May 2012 rating decision. In the February 2012 remand, the Board additionally recognized that the issue of entitlement to an annual clothing allowance had been raised by the record, and referred this issue to the Agency of Original Jurisdiction (AOJ). It appears, however, that the issue still has not been adjudicated. Therefore, the issue is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected mastodynia, status post quadrantectomy, both breasts, resulted in breast surgery characterized by wide local excision with significant alteration of size (i.e., 25 percent or more reduction of her breasts) and form of her breasts. 2. On examination, the Veteran has one painful residual scar on each of her breasts, associated with surgery for her service-connected mastodynia, status post quadrantectomy, both breasts. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50-percent for mastodynia, status post quadrantectomy, both breasts have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.116, Diagnostic Code (DC) 7626 (2012). 2. The criteria for a 10-percent rating for a painful scar of the right breast on examination are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.118, DC 7804 (2008). 3. The criteria for a 10-percent rating for a painful scar of the left breast on examination are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran is challenging the initial evaluations assigned following the grant of service connection. Courts have 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. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty to notify has been met to the extent necessary in this case. Regarding the duty to assist, the RO has obtained the Veteran's VA treatment records and identified private treatment records. She has additionally been afforded multiple VA examinations. As discussed below, the examinations taken together provide sufficient information to rate the disabilities on appeal. The RO/AMC substantially complied with the Board's December 2012 remand directives with respect to her claims on appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board specifically instructed the RO/AMC to schedule the Veteran for a new and contemporaneous VA examination to assess the severity of her service-connected mastodynia of both breasts, status post quadrantectomy, and residual surgical scars. This requested examination was conducted in March 2012. Accordingly, VA's duty to provide a thorough and contemporaneous VA examination has been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating her claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, the Board finds that no prejudice results to the Veteran in adjudicating her claims on the evidence of record, as this evidence adequately addresses the pertinent rating criteria and is sufficient for the Board to consider the functional effects of hers service-connected mastodynia, status post quadrantectomy, both breasts with residual scars. II. Initial Ratings A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Id. Here, however, the Board finds that staged ratings are not warranted as the Veteran's disability with residual scars has remained relatively consistent throughout the appellate period. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, and the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran bears the burden of presenting and supporting her claims for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. B. Bilateral Breast Quadrantectomy Although the Veteran's bilateral mastodynia, status post quadrantectomy, was initially rated only under the criteria for rating scars in the October 2009 rating decision, in the subsequent May 2012 rating decision, the RO determined that her resulting bilateral quadrantectomy would be appropriately rated under the criteria for breast surgery. Disabilities resulting from breast surgery are rater under Diagnostic Code 7626. Under these rating criteria, a noncompensable (zero percent) rating is warranted following a wide local excision without significant alteration of size or form of one breast or both breasts. A 30-percent rating is warranted following simple mastectomy or wide local excision of one breast with significant alteration of size or form, and a 50-percent rating is warranted following simple mastectomy or wide local excision of both breasts. A 40-percent rating is warranted following modified radical mastectomy of one breast, and a 60-percent rating is warranted for a modified radical mastectomy of both breasts. A 50-percent rating is warranted following radical mastectomy of one breast, and an 80-percent rating is warranted for a radical mastectomy of both breasts. 38 C.F.R. § 4.116, DC 7626 (2012). A radical mastectomy means removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament. 38 C.F.R. § 4.116, DC 7626, Note 1 (2012). A modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast) but the pectoral muscles are left intact. 38 C.F.R. § 4.116, DC 7626, Note 2 (2012). A simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but the lymph nodes and muscles are left intact. 38 C.F.R. § 4.116, DC 7626, Note 3 (2012). A wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. 38 C.F.R. § 4.116, DC 7626, Note 4 (2012). In the Veteran's March 2012 VA examination, the VA examiner diagnosed the Veteran with fibrocystic breast disease and mastodynia. The Veteran underwent multiple surgeries of both breasts, the most recent consisting of a quadrantecomty of both breasts in 2006, identified as a wide local excision. The examiner noted that her breast surgery resulted in the loss of 25 percent or more tissue from one or both of the Veteran's breasts. She also had areas of hypersensitivity about the nipples of both breasts and areas of no sensation and hyposensitivity along the outer aspect of both breasts. The Veteran indicated that she was unable to raise her arms above the level of her shoulders and that she could not lift anything of significant weight due to discomfort. She reported a constant sensation of dull pain in her breasts that interfered with her ability to concentrate. She was on daily narcotics and monitored for pain monthly. In describing the Veteran's breast surgery, the examiner noted that she had both upper outer quadrants of her breasts removed, resulting in the loss of 25 percent of each breast. He noted that her left breast nipple appeared to be at a lower level compared to the right breast and that she appeared to have a bit more loss of breast tissue on the left side compared to the right breast. The examiner further noted that while she was able to elevate her arms, she described pain when they were above the level of her shoulder. Strength in both arms appeared to be equal and normal however, and there was no limitation in range of motion in either shoulder. The current 50-percent disability rating is the highest rating that may be awarded for quadrantectomy surgery under Diagnostic Code 7626. Where the Veteran has not been shown to have undergone a mastectomy, there is no basis for finding that she is entitled to a higher disability rating under these criteria. The Board has considered rating the Veteran's service-connected breast disability under the criteria for benign neoplasms of the gynecological system or breast, which are, in turn, rated according to impairment in function of the urinary or gynecological systems, or skin. 38 C.F.R. § 4.116, DC 7628 (2012). On review of the evidence, there is no impairment of either the urinary or gynecological systems attributed to the Veteran's mastodynia. Under that portion of the rating schedule addressing the skin, benign skin neoplasms are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804 or 7805) or impairment of function. 38 C.F.R. § 4.118, DC 7819 (2012). The Board observes, however, that the Veteran's disability does not involve the head, face or neck. Under either the rating criteria in effect before and after October 23, 2008 (further discussed below), the maximum disability rating for scars, other than of the head, face, or neck, is 40 percent. Thus, the Veteran's current 50-percent disability rating is more favorable. Separate ratings are warranted when diagnostic codes contemplate wholly separate manifestations of the same disability. Esteban v. Brown, 6 Vet. App. 259 (1994). The evaluation of the same disability under various diagnostic codes is, however, prohibited. 38 C.F.R. § 4.14 (2012). Pyramiding occurs if the rating criteria are not wholly separate. Esteban. The criteria for rating scars (other than tender and painful scars discussed below) contemplate the area of the scar. This criterion is also an element of the rating provided under Diagnostic Code 7628, which contemplates the extent of breast removal. Hence a separate rating is not warranted for benign neoplasm. The preponderance of the evidence is thus against the grant of an initial rating in excess of 50-percent for the breast surgery. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2012). C. Residual Surgical Scars The applicable rating criteria for skin disorders were amended effective October 23, 2008. The October 2008 revisions are applicable to claims rated by VA under the prior version that are still pending in the appeals process. 77 Fed. Reg. 2,909 (Jan. 20, 2012). Although the Veteran's claim was received on October 24, 2008, the effective date for the award of her disability ratings was October 18, 2008, the day after her separation from service. Accordingly, the Board will consider both the prior and revised rating criteria and apply the more favorable criteria. Under the criteria in effect prior to October 23, 2008, evaluations for scars located on places other than the head, face, or neck that are deep or cause limited motion and cover an area exceeding 6 square inches warrant a 10-percent rating. Higher ratings are warranted for scarring covering areas greater than 6 square inches. 38 C.F.R. § 4.118, DC 7801 (2008). Superficial scars that do not cause limited motion and cover an area or areas of 144 square inches or greater also warrant a 10-percent rating. 38 C.F.R. § 4.118, DC 7802 (2008). Unstable superficial scars warrant a 10-percent rating. 38 C.F.R. § 4.118, DC 7803 (2008). Superficial scars which are painful on examination warrant a 10-percent rating. 38 C.F.R. § 4.118, DC 7804 (2008). Other scars are rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (2008). Under the revised rating criteria, in effect as of October 23, 2008, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear are awarded a 10-percent rating when they have an area or areas of at least 6 square inches but less than 12 square inches. 38 C.F.R. § 4.118, DC 7801 (2012). Burn scars or scars due to other causes not of the head, face, or neck, that are superficial and nonlinear are awarded a 10-percent rating when they have an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2012). One or two scars that are unstable or painful are awarded a 10-percent rating. Three or four scars a 20-percent disability rating. Five or more scars that are unstable or painful warrant a 30-percent disability rating. 38 C.F.R. § 4.118, DC 7804 (2012). In the instant case, the Veteran was afforded a VA scar examination in January 2009. She was noted to have scars on the bilateral axillae and nipples. The scars on the bilateral axillae were numb. She had no pain, but the scars were tingling with palpation. She denied any functional limitations. The scar on the right axilla measured 5 cm x 1 cm and the right nipple scar was 3.5 cm long and curvilinear. The left axilla scar measured 7 cm x 0.5 cm and the left nipple scar was 3 cm long and curvilinear. All scars were flat, superficial, of normal color, and did not affect underlying tissue. The scar textures were smooth and the scars were not unstable. No inflammation, edema, or keloid formation was noted. No functional limitations were noted, and each scar represented less than one percent of the entire body. During the Veteran's May 2012 VA examination, the Veteran was again noted to have four scars. On this occasion, however, she reported that the scars around her right and left nipple were sensitive and that she could not tolerate any pressure on those areas. Her scars were measured to be 5 cm, 7 cm, 3.5 cm, and 3 cm in length, consistent with earlier findings. The scars were noted to be linear but not deep. None of her scars were noted to be unstable. The Veteran was noted to have areas of no sensation and hyposensation about the upper outer quadrants of the skin over her breasts bilaterally. The examiner noted that she appeared to have permanent nerve injury due to the quadrantectomy surgery since the location and pattern of her numb areas on her breasts corresponded to the quadrantectomy scars, suggesting that the cutaneous nerves may have been severed. While two painful scars would warrant a single 10 percent rating under the new rating criteria, the old rating criteria could be construed as providing separate 10 percent ratings for each painful scar. Based on these findings, the Board finds that the Veteran is entitled to separate 10-percent disability ratings for each painful scar on examination under the version of Diagnostic Code 7804 in effect prior to October 23, 2008. She is not entitled to higher ratings under either the old or revised regulations, however, where her scars have not been shown to cover an area larger than 6 square inches, have not been found to be unstable, and she has not been found to have more than two painful scars. A separate rating is not warranted for the cutaneous nerve injury, because the rating criteria for scars and neurologic impairment contemplate pain; hence separate ratings would constitute pyramiding. Esteban 38 C.F.R. § 4.124a. A rating in excess of 10 percent on a neurologic basis would require severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Codes 8205-8412 (2012). The Veteran's neurologic impairment consists entirely of pain. In such a case, the disability should not be rated as more than moderate incomplete paralysis. 38 C.F.R. § 4.124 (2014). Accordingly, the Board finds that separate 10-percent disability ratings are warranted for each of her painful scars of the breasts under the rating criteria for rating skin disabilities in effect prior to October 23, 2008. See Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). III. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The symptoms associated with the Veteran's service-connected mastodynia, status post quadrantectomy, both breasts, and residual surgical scars (i.e., loss of more than 25 percent of breast tissue with alteration of form of breasts, and painful residual scars) are contemplated by the rating criteria set forth above, and reasonably describe her service-connected disabilities. The applied rating criteria are, therefore, adequate to evaluate the Veteran's service-connected disabilities and referral for consideration of an extraschedular rating is not warranted in this case. ORDER Entitlement to an initial rating in excess of 50 percent for service-connected mastodynia, status post quadrantectomy, both breasts is denied. Entitlement to a separate 10-percent disability rating is granted for a painful scar of the right breast is granted, effective October 18, 2008. Entitlement to a separate 10-percent disability rating is granted for a painful scar of the left breast, effective October 18, 2009. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs