Citation Nr: 1609597 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 12-24 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Regional Office in Togus, Maine THE ISSUE Entitlement to a compensable rating for scar, residual of a subcutaneous mastectomy, right breast. ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from September 1999 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Togus, Maine, which denied a compensable rating for scar, residual of subcutaneous mastectomy, right breast. In February 2015, the Board remanded this matter for additional development, to include scheduling the Veteran for a VA examination. The record reflects that he underwent a VA examination in April 2015, thus, there was substantial compliance with the February 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's residuals of subcutaneous mastectomy, right breast, is manifested by a scar that is approximately 2.5 x .4 centimeters, is not painful or unstable, and is asymptomatic; there has not been recurrence of any nodule. CONCLUSION OF LAW The criteria for a compensable rating for scar, residuals of subcutaneous mastectomy, right breast, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107(West 2014); 38 C.F.R. §§ 3.102, 4.118, DC 7802 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in March 2012. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records for the Veteran. Additionally, the VA examination he underwent in April 2015 is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background and Analysis Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The record reflects that by October 2007 rating decision, the RO granted service connection for a scar, residual of subcutaneous mastectomy, right breast, and assigned a non-compensable rating (0 percent) under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7802. DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. 38 C.F.R. § 4.118, DC 7802. On a VA examination in April 2015, the diagnosis was right subcutaneous mastectomy for benign nodule. It was noted that in 2003 the Veteran developed gynecomastia and underwent right mastectomy for lump removal. It was noted that there were no findings or complaints regarding this condition in 2014. In 2003 the Veteran underwent surgery involving excision of nodule, subcutaneous mastectomy, and there were no residual conditions caused by this. He had a scar related to surgery, but that the scar was not painful, unstable, or greater than 39 square centimeters (6 square inches) in total area. Examination revealed a semicircular scar along the superior border of the right areola, which was slightly pale and had faded considerably and was difficult to see clearly, that measured approximately 2.5 x .4, and that was asymptomatic. Examination of the breast was normal on palpation, including all axillary and chest wall nodes. It was noted that there was no functional impact due to the scar, and that the benign nodule had not recurred. With regard to the scar residual of subcutaneous mastectomy, the Board notes that the criteria for a compensable rating have not been met. The VA examination in 2015 the surgical scar was not painful or unstable, did not cause any limitation of motion or functional impairment, and encompassed a total area of less than 39 square centimeters. There were no other relevant findings regarding the scar. Moreover, the Veteran has not contended anywhere in the record that his scar is painful or unstable. Considering the foregoing, the Board finds that a compensable rating for the Veteran's scar residual of subcutaneous mastectomy is not warranted. Additionally, his scar does not meet any of the diagnostic criteria for the other DCs applicable to scars. Nor were any other residuals noted in connection with the Veteran's subcutaneous mastectomy. Therefore, the Board finds that the preponderance of the evidence against the Veteran's claim for a compensable rating for scar residual of subcutaneous mastectomy, and the claim must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The criteria for a compensable rating for residuals of subcutaneous mastectomy have not been met. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs