Citation Nr: 18140429 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-34 263A DATE: October 3, 2018 ORDER The appeal to amend or revise the April 2007 rating decision on the basis of clear and unmistakable error (CUE) is denied Service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected residuals of resection of bilateral breast tissue, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected residuals of resection of bilateral breast tissue, is remanded. Entitlement to service connection for tumors, to include as secondary to service-connected residuals of resection of bilateral breast tissue, is remanded. Entitlement to service connection for a brain condition, to include as secondary to hypertension, is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for neurological impairment of the breast and nipples, to include as secondary to service-connected residuals of resection of bilateral breast tissue, is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a mental condition, to include as secondary to service-connected residuals of resection of bilateral breast tissue, is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed April 2007 rating decision granted service connection for residuals of resection of breast tissue, bilaterally, and assigned a noncompensable rating effective May 16, 2005. This rating decision was reasonably supported by the evidence then of record and the prevailing legal authority, and the rating decision was not undebatably erroneous. 2. The Veteran began experiencing symptoms of tinnitus while in service, and he has continued to experience them since separating from service. CONCLUSIONS OF LAW 1. There was no CUE in the April 2007 rating decision granting service connection for residuals of resection of breast tissue, bilaterally, and assigning a noncompensable rating effective May 16, 2005, and that decision is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104(a), 3.105(a). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from December 1976 to November 1979. He also had subsequent service from January 1982 to June 1983 from which he received a discharge that was considered to be dishonorable for VA purposes. In April 2018, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. CUE The Veteran argues that an April 2007 rating decision granting a noncompensable rating for residuals of resection of bilateral breast tissue should be revised on the basis of CUE. An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. When the evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C. § 7105 (c); 38 U.S.C. § 3.105 (a). There is a three-pronged test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (that is, there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed CUE. CUEs are “errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). A failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996). Furthermore, in determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there is no error within the meaning of 38 C.F.R. § 3.105 (a). Russell at 314. Lastly, a motion for revision based on CUE must be plead with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000). The Veteran argues that the assignment of an initial noncompensable evaluation for residuals of resection of breast tissue, bilaterally, by the April 2007 rating decision constituted CUE because a higher evaluation was warranted. The Board has reviewed the specific allegations the Veteran has presented, but finds that none of his arguments amounted to CUE in the April 2007 rating decision. The April 2007 rating decision characterized the Veteran’s disability as residuals of breast tissue, bilaterally, and it assigned an initial noncompensable evaluation under Diagnostic Codes 7802 and 7626. The Veteran did not perfect an appeal on this rating decision. Thus, it became final. Such is not in dispute. Regarding Diagnostic Code 7626, a compensable rating at the time of the April 2007 rating decision would have required, at a minimum, that the Veteran’s breast surgery have been a simple mastectomy or wide local excision with significant alteration of size or form. Note (4) of this Diagnostic Code states that “wide local excision” means removal of a portion of the breast tissue. Diagnostic Codes (DCs) 7800, 7801, 7802, 7803, 7804, and 7805 provided rating criteria for service-connected scars at the time of the April 2007 rating decision. A compensable scar rating would have required, at a minimum, disfigurement of the head, face, or neck (DC 7800); that the scar be deep or cause limited motion (DC 7801); that the scar be superficial and not cause limited motion if the area of the scar was at least 144 square inches (DC 7802); that the scar be unstable (DC 7803); that the scar be painful on examination (DC 7804); or that the scar cause limitation of function of the affected part (DC 7805). 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2006). Further, note (3) to DC 7803 indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, note (1) to DC 7804 states that a superficial scar is one not associated with underlying soft tissue damage; whereas a deep scar is one associated with underlying soft tissue damage, per note (2) to DC 7801. The Board has reviewed all relevant evidence which was available to the RO in making its April 2007 rating decision. Such evidence included the Veteran’s service treatment records, which include the March 1989 breast resection operative notes; VA treatment records from March 26, 1996 through April 8, 2005, and the VA medical examination of January 2006, which addressed the breast surgery. No other medical evidence relating to this condition was of record at the time the April 2007 rating decision was rendered. None of the records mentioned above showed that the Veteran’s breast surgery resulted in a simple mastectomy, which would have completely removed the Veteran’s nipple, or a wide local excision resulting in a significant alteration of size or form. Further, the Veteran submitted no lay evidence stating that his gynecomastia surgery significantly altered the shape or form of his breasts. It is undisputed that the surgery removed breast tissue, as the operative note contained in the Veteran’s service treatment records clearly states all breast tissue was removed down to the chest wall; thus, there was a “wide local excision.” However, the evidence did not describe or show a significant alteration in shape or form of the Veteran’s breasts before and after the breast tissue was removed. Again, a CUE analysis requires the examination only of evidence that was of record at the time of the decision in question. Furthermore, post-surgical service treatment records showed that the Veteran, less than two weeks after his gynecomastia surgery, was playing basketball during his immediate post-operative period when his surgical wounds reopened. A treatment note dated April 8, 2012 stated that the wounds reopened in that manner and the Veteran then had edema and hematoma under both areolas. The Veteran sought follow up treatment over the next few months. On August 8, 1978, a service treatment provider noted again that the Veteran had complications after playing basketball in his immediate post-operative period, causing both wounds to open and hematomas to form. On examination that day, the provider found the Veteran had bilateral breast mass, which he opined could be scarred hematomas or recurrence of gynecomastia. As such, the record indicates that, after being surgically reduced to some degree, the Veteran’s bilateral breast mass experienced an increase, adding further doubt as to any speculated end result of the shape and form of the Veteran’s breasts post-surgery. Thus, reasonable minds could differ as to whether the evidence showed that the Veteran’s breasts were significantly altered in shape or form as a result of his breast surgery. Thus, the Board finds that it is unclear from the evidence of record at the time of the April 2007 rating decision that the Veteran’s bilateral breast resection surgery resulted in a significant alteration of size or form of the Veteran’s bilateral breasts. There is no dispute that a portion of breast tissue was removed, as the March 1978 operative report clearly stated that all breast tissue was resected down to the chest wall. However, no explicit statement was ever made by the Veteran or a treatment provider that the surgery significantly altered the size or form of the Veteran’s breasts. Although it may seem intuitive that the Veteran’s breast reduction surgery was done for the purpose of altering shape or form, and logically it flows that the breast size could have been significantly altered from such a procedure, that does not amount to evidence of clear and unmistakable error, here, where reasonable minds could differ in determining whether such was the result. In addition to there being no evidence of the shape and form of the Veteran’s breasts before and after surgery, complications after surgery were indicated as having caused a regrowth of bilateral breast mass, adding additional uncertainty as to whether there was a significant alteration in size or form resulting from the breast reduction surgery. Thus, it was not CUE for the RO to have declined to award the Veteran a compensable rating under DC 7626 for residuals of resection of breast tissue, bilaterally. Furthermore, regarding the noncompensable rating assigned for the Veteran’s surgical scars, the evidence of record in April 2007 did not provide grounds for a compensable rating under any DC for scars. The Veteran’s scars were not on his head, face, or neck, but rather on his breasts under his areolas. The January 2006 VA examination stated that there was no functional limitation due to the scars. There was also no evidence presented alleging the scars were painful, unstable, or that they were anywhere near approximating 144 square inches in size. Rather, the scars were each only 4 centimeters by 3.1 centimeters long and curvilinear. As such, there is no evidence to even suggest a compensable rating would have been warranted for the Veteran’s surgical scars at the time of the April 2007 rating decision, and the Board finds there was also no CUE in assigning a noncompensable rating for the scars. As noted, the Board is not free to do development on these issues as this is a CUE claim, and the evidence must be reviewed as it was before the decision-maker at the time the alleged erroneous decision was rendered. To the extent the Veteran may believe that further development should have been done by VA prior to the April 2007 rating decision, as stated above, a failure to fulfill the duty to assist does not constitute CUE. Furthermore, the Veteran had ample opportunity to present additional arguments and evidence before the April 2007 rating decision became final, but he did not do so. Although VA provides assistance to Veterans in proving their claims, it is the claimant’s general evidentiary burden to establish all elements of the claim. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). The Veteran has also asserted CUE in that the RO did not consider his statements of pain in his breasts and lack of sensation in his nipples in assigning the noncompensable rating. There is not now, nor was there in April 2007, a Diagnostic Code which would allow for a compensable rating for the Veteran’s nipple numbness or complaints of breast pain, without evidence of these conditions causing some sort of functional limitation. On VA examination in 2006, the examiner determined there was no functional limitation due to the Veteran’s surgical scars and that the Veteran had subjective complains of lack of nipple sensation, but no objective evidence was noted. The RO considered the VA examination results in its rating decision, and the VA examination had noted and considered the Veteran’s subjective complaints. Thus, it is not undebatable that the RO failed to take the Veteran’s complaints into account. Further, the Veteran’s subjective complaints of pain and numbness do not provide grounds upon which the outcome could have been manifestly changed, as there is no compensable evaluation available for these symptoms. Thus, the Board does not find that this allegation amounts to CUE. The Board has reviewed the Veteran’s numerous written statements in support of his claim, but finds that they do not present any grounds to support a claim of CUE. Thus, upon review of the totality of the evidence of record, the Board cannot say that it is “undebatable” that the assignment of a noncompensable disability evaluation in the April 2007 rating decision contains error. The evidence of record at the time of the RO’s decision supported its conclusion that a noncompensable disability evaluation was warranted. The Veteran has not presented evidence of CUE in the RO’s assigned rating, which, had such error not been made, would have manifestly changed the outcome of the decision. As such, the claim of CUE in the assignment of an initial noncompensable rating in the April 2007 rating decision is denied. Service Connection for Tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). The Veteran gave competent and credible testimony before the Board in April 2018 that he served aboard Naval gunships in active service and the ships’ guns were often going off while he was onboard. The best images of the Veteran’s military personnel records have been obtained, but they are mostly illegible. They do, however, confirm the Veteran’s service on multiple naval ships. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was exposed to hazardous noise in service, and the in-service event element of his claim for service connection for tinnitus is met. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran testified at a personal hearing before the Board in April 2018 that he has experienced, and continues to experience, bilateral tinnitus since serving onboard Naval gun ships and being near ship gunfire. In this case, the Board finds the Veteran’s testimony as to the onset of his tinnitus credible, and his testimony alone is sufficient to establish the criteria for service connection for tinnitus. The Board notes that an April 2013 VA examiner opined against a service connection for the Veteran’s tinnitus. While the Board cannot ignore or disregard the VA audiologist’s medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA examiner’s opinion relies on her related opinion that the Veteran did not have hearing loss in service, and tinnitus would not be present without hearing loss. However, as discussed above, tinnitus symptoms are uniquely capable of lay observation. Thus, the Veteran’s testimony regarding when he experienced the onset of tinnitus symptoms is clearly more probative than the opinion of a medical examiner attempting to speculatively determine what the Veteran would have personally experienced over thirty years ago. In light of the above, the probative evidence supports the Veteran’s claim for service connection for bilateral tinnitus. As such, service connection for bilateral tinnitus is granted. REASONS FOR REMAND All other issues on appeal must be remanded for further development before the Board can decide them. The claims file is missing most of the Veteran’s VA treatment records, despite him having treated at VA Medical Centers for the appealed conditions. Further, it appears that many of the VA treatment record documents currently associated with the claims file may not contain complete records for the time frames they reflect. Moreover, there is a note in the file from the Veteran’s VA treatment provider dated April 2018, which states that the Veteran was seen at a VA Medical Center for completion of a Disability Benefits Questionnaire (DBQ) for his bilateral shoulder disability, but the DBQ is not in the claims file. Being that there is evidence of missing VA treatment records pertaining to the disabilities on appeal, the Veteran’s complete VA treatment records should be obtained before the Board can decide the Veteran’s claims. Additionally, the Veteran was incarcerated for some time during the appeal period. He submitted a written statement in March 2013, wherein he requested the RO obtain his medical records from the Michigan Department of Corrections. Currently, there is only one treatment record from the Michigan Department of Corrections associated with the claims file. This record pertains to a medical treatment visit dated August 8, 2012, and contains information indicating the Veteran had many more treatment visit dates with this provider while incarcerated. Finally, because decisions on the remanded issues of service connection herein could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. For that reason and because of the possible relevance of additional records being obtained on remand pertaining to the issue of entitlement to TDIU, this issue is also remanded. The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran since he separated from his period of honorable active service in November 1979 through the present. 2. Request the Veteran identify periods and locations of incarceration(s) and submit the necessary authorization for release of medical records from the proper medical treatment providers for the incarceration facilities. Contact the appropriate records repositories to obtain the Veteran’s incarceration medical treatment records. Any records obtained should be added to the claims file. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel