Citation Nr: 18160942 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-21 729 DATE: December 28, 2018 ORDER Entitlement to a compensable rating for scarring from fibroadenoma, right breast is denied. Entitlement to a rating in excess of 10 percent for fibroadenoma, left breast prior to March 8, 2012 and in excess of 20 percent for painful scars from March 8, 2012 and thereafter is denied. Entitlement to a total disability rating based on unemployability is denied. FINDINGS OF FACT 1. The Veteran’s service connected scarring from fibroadenoma, right breast is superficial, linear, and tender to palpitation. 2. Prior to March 8, 2012, the Veteran’s fibroadenoma resulted in no more than one painful scar on her left breast. 3. From March 8, 2012 and thereafter, the Veteran had no more than three painful scars on her bilateral breasts. 4. The evidence does not indicate that the Veteran’s service-connected disabilities are sufficiently severe to inhibit her ability to obtain gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for scarring from fibroadenoma, right breast have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.31, 4.71a, 4.118, Diagnostic Codes 7800-7805, (as in effect prior to and after August 2018). 2. The criteria for entitlement to a rating in excess of 10 percent for fibroadenoma, left breast prior to March 8, 2012 and in excess of 20 percent for painful scars from March 8, 2012 and thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.31, 4.71a, 4.118, Diagnostic Code 7804. 3. The criteria for entitlement to a total disability rating based on unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from June 1969 to January 1972. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and 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). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a compensable rating for scarring from fibroadenoma, right breast The Veteran’s service-connected scarring from fibroadenoma of the right breast is currently assigned a noncompensable (0 percent) rating under Diagnostic Code 7805 (scars, other). 38 C.F.R. § 4.118. On July 13, 2018, VA issued a final rule amending its regulations on skin disabilities. The effective date of this final rule is August 13, 2018. For this final rule, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. See 38 C.F.R. § 4.118. The RO has considered both sets of criteria (the pre-August 2018 criteria, and the most recent post-August 2018 criteria). The Board will also consider both sets of criteria as well, to avoid any potential prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Under the pre-August 2018 version of diagnostic code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under diagnostic code 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Based on the evidence of record, the Board finds that a compensable rating is not warranted. The Veteran’s June 2011 physical examination revealed a scar on the Veteran’s right breast with a measurement of 9 cm x.5 cm and covering an area 4.5 sq. cm. The treating physician noted that the scar was non-painful and no skin breakdown or inflammation was shown. Additionally, the Veteran underwent a VA examination in November 2016 for scars. The examiner noted painful scars of the anterior trunk or extremities. An examination of the Veteran’s right breast revealed a lateral scar measuring 6 cm x.4 cm covering an area of 2.4 square cm. As the Veteran’s scar does not meet the criteria for a compensable rating as required under diagnostic codes 7800, 7801, 7802, and 7804, a zero percent evaluation is warranted. See 38 CFR § 4.31. Under the post-August 2018 version of Diagnostic Code 7802, a 10 percent rating is warranted for scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage if the evidence shows: • Anterior trunk: area or areas of 144 square inches (929 sq. cm) or greater. Based on the medical evidence of record, the Board finds that a compensable rating is not warranted. As discussed above, the Veteran’s November 2016 VA examination revealed a right breast lateral scar measuring 6 cm x.4 cm covering an area of 2.4 square cm. As the evidence does not show that the area of the Veteran’s right breast scar is 144 square inches (929 sq. cm) or greater, a rating of 10 percent is not warranted. Additionally, the medical evidence does not show an area of areas of underlying soft tissue damage of at least 6 square inches; or an area of areas of 144 square inches without underlying soft tissue damage. Based on the totality of the evidence, the Board finds that a compensable rating for the Veteran’s scarring of the right breast under either the pre- or post-August 2018 criteria is not warranted. 2. Entitlement to a rating in excess of 10 percent for fibroadenoma, left breast prior to March 8, 2012 and in excess of 20 percent for painful scars from March 8, 2012 and thereafter Prior to March 8, 2012 The Veteran’s has been rated as 10 percent disabling under diagnostic code 7804 for scar (s), unstable or painful. Under diagnostic code 7804, a rating of 10 percent is warranted for one or two scars that are unstable or painful; a rating of 20 percent is warranted for three or four scars that are unstable or painful; a rating of 30 percent is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. The Board finds that a rating in excess of 10 percent is not warranted. The Veteran’s June 2011 physical examination of her scars revealed a linear scar on her left breast measuring 7 cm x 0.5 cm and covering 3.5 sq. cm. The treating physician noted that the Veteran’s scar was painful and tender. As noted above, diagnostic code 7804 allows for a 10 percent rating when there is evidence of one or two scars that are painful. The Veteran’s medical record reflects one scar on her left breast and one scar on her right breast, therefore she does not meet the criteria for a rating of 20 percent which requires evidence of three or four unstable or painful scars. As such, a rating in excess of 10 percent is not warranted for the period prior to March 8, 2012. The Veteran’s painful scars are rated as 20 percent disabling under diagnostic code 7804 from March 8, 2012. The Veteran’s medical record of evidence reflects that she underwent surgery for a left breast biopsy on March 8, 2012. In November 2016, the Veteran underwent a VA scars examination which revealed three painful scars. There was a 6-cm x 0.4 cm linear scar on the left breast, a 5.5 cm x 0.2 cm linear scar on the left breast/axilla, and a 6-cm x .0.4 cm linear scar on the right lateral breast. The examiner noted that each of the Veteran’s scars were tender to palpitation upon examination. As noted above, diagnostic code 7804 allows for a rating of 20 percent when the evidence shows three or four scars that are unstable or painful. A rating of 30 percent is warranted for five or more scars that are unstable or painful. As the Veteran’s medial evidence of record reflects no more than three painful scars, a rating in excess of 20 percent is not warranted. Based on the evidence discussed above, the Board finds that a rating in excess of 10 percent prior to March 8, 2012 for the Veteran’s service connected fibroadenoma of the left breast and a rating in excess of 20 percent from March 8, 2012 and thereafter for service-connected painful scars is not warranted. 3. Entitlement to a total disability rating based on unemployability Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In June 2011, the Veteran submitted an application for increased compensation based on unemployability. The Veteran stated that her service-connected fibroadenoma prevents her from securing or following any substantially gainful employment. She is currently service connected for painful scars, bilateral breasts from fibroadenoma residuals (20 percent from March 8, 2012) and fibroadenoma removals of the bilateral breasts (0 percent from March 8, 2012). Her combined disability rating is not at least 70 percent, and she does not have a single disability of 60 percent or more. Therefore, the requirements under 38 C.F.R. § 4.16(a) have not been met. Regardless, however, of whether the percentage requirements of 38 C.F.R. § 4.16(a) are met, entitlement to a TDIU on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the question is ultimately whether the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service connected disability. However, TDIU is not warranted on this basis. The Veteran has experience as a department clerk. She reported that she has not been employed since 1998-1999. She states that the date his disability affected full-time employment was October 1987. Therefore, as of the date of this Board decision, the Veteran has not worked in the previous 20 years. During a November 2016 examination, the Veteran reported that she could not work due to pain and tenderness of the breasts. The weight of the evidence shows that the Veteran is not unemployable due to her service-connected disabilities. During a June 2011 physical examination, the Veteran’s treating physician noted that no functional impairment with respect to employment activity would be limited due to the Veteran’s fibroadenoma. The November 2016 VA examiner noted that the Veteran reported that due to the pain and tenderness of the breast that she has a very difficult time keeping her concentration while working. With respect to the Veteran’s occupational functioning, the Board finds the while the November 2016 examiner noted that the Veteran’s scars impacted her ability to work, she did not provide an opinion as to how her impairments impact occupational and employment activities. Additionally, the Board notes that the Veteran has not submitted any medical opinions supporting a finding of unemployability. While such medical opinions are not determinative, they may help the Board understand the limitations placed on the Veteran by his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”).   Therefore, as the evidence does not establish that the Veteran is unemployable due to his service connected disability, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel