Citation Nr: 1329209 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-18 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a temporary total rating (TTR) based on surgery for gynecomastia of the left breast. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1994 to August 1998, and from February 2000 to March 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which, in pertinent part, found that new and material evidence had not been received to reopen a claim of service connection for gynecomastia of the left breast, and that the Veteran was not entitled to a TTR for a 2006 surgical procedure thereof. The RO in Indianapolis, Indiana, currently has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) in October 2010. A transcript of this hearing is of record. The Board observes that during the pendency of this case, a March 2012 rating decision established service connection for left breast gynecomastia, status-post surgical repair, evaluated as 30 percent disabling; as well as a residual scar of thereof, evaluated as noncompensable (zero percent). Service connection was effective for both disabilities from April 25, 2008. Nothing in the record available for the Board's review reflects the Veteran has expressed disagreement with either the initial ratings for these disabilities, or the effective date thereof. Therefore, this appellate claim has been resolved and is no longer before the Board for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); FINDINGS OF FACT 1. The Veteran underwent a surgical procedure for his left breast gynecomastia at a VA facility in June 2006. 2. Service connection has been in effect for left breast gynecomastia since April 25, 2008. CONCLUSION OF LAW The criteria for a TTR based upon the June 2006 surgical procedure for the Veteran's left breast gynecomastia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.29, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, however, the Board finds that this appeal must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In other words, the Board finds that there is no legal entitlement to the benefits claimed. Thus, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Accordingly, the Board finds that no further discussion of the VCAA is required because any deficiencies of notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (Compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). With respect to the October 2010 DRO hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as already noted, the Board finds that the Veteran has no legal entitlement to a TTR based upon the June 2006 surgical procedure on his left breast gynecomastia. Therefore, there is no evidence the DRO could have suggested that would support the claim. The Veteran did have the opportunity to provide testimony regarding his left breast gynecomastia, to include the circumstances of the 2006 surgery. Accordingly, there is no prejudice to the Veteran for any deficiency in this hearing. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of this hearing. In fact, the Veteran indicated he was satisfied with this hearing. See Transcript p. 15. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A TTR will also be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that treatment of one or more service-connected disabilities resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In this case, there is no dispute the Veteran underwent surgery for his left breast gynecomastia in June 2006 at a VA facility. Although the Veteran had previously claimed service connection for this disability prior to the June 2006 surgery, that claim was denied by an unappealed January 2001 rating decision; and, more importantly, service connection was established for this disability from April 25, 2008. Simply put, service connection was not in effect for the left breast gynecomastia at the time the Veteran underwent this surgical procedure or for almost 2 years thereafter. TTRs under 38 C.F.R. §§ 4.29 and 4.30 are only available for hospital treatment, surgery, or other qualifying treatment for service-connected disabilities. Thus, the Veteran's claim of entitlement to a TTR under 38 C.F.R. § 4.29 and/or § 4.30 based on the June 2006 surgery for the left breast gynecomastia must be denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. For these reasons, the Veteran's claim for a TTR must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). ORDER Entitlement to a TTR based on June 2006 surgery for gynecomastia of the left breast is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs