Citation Nr: 21068256 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-51 425 DATE: November 9, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral mastectomy scars is denied. FINDING OF FACT The Veteran's bilateral mastectomy scars are not painful or unstable. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for service-connected bilateral mastectomy scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 2003 to December 2012. This matter before the Board of Veterans' Appeals (Board) is on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in July 2019. A transcript of the proceeding is of record. This matter was previously before the Board in December 2019. The Board remanded on the issue of entitlement to an initial compensable disability rating for bilateral mastectomy scars to afford the Veteran the opportunity to present for a VA examination to assess any nerve or muscle injury associated with his mastectomy. A review of the file reflects that examinations were completed in December 2020. Thereafter, the AOJ awarded service connection for right and left lower pectoralis major muscle atrophy status post bilateral mastectomy for gynecomastia with bicipital tendonitis in a December 2020 rating decision. His condition was later evaluated to include T3-T4 neuropathy and continued at the prior disability ratings in a February 2021 rating decision. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran's contentions regarding nerve damage and muscle injury stemming from his mastectomy have been addressed and subsequently service-connected, the Veteran's claim at hand strictly relates to an increased disability rating for bilateral mastectomy scars. 1. Entitlement to an initial compensable disability rating for service-connected bilateral mastectomy scars Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran's bilateral mastectomy scars are evaluated pursuant to 38 C.F.R. § 4.118, DC 7805. Under DC 7805, other scars (including linear scars), not otherwise rated under DCs 7800-04, in addition to the other effects of scars which are otherwise rated under DCs 7800-7804, are to be rated based on any disabling effects not provided for by DCs 7800-7804. 38 C.F.R. § 4.118, DC 7805. This includes, where applicable, diagnostic codes pertaining to limitation of function. Id. The Board acknowledges that the rating criteria for the skin were amended, effective August 13, 2018. 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). These amendments do not affect the substantive criteria under DC 7805, under which this Veteran's scars have been evaluated. Under the amendments, the phrase "(including linear scars)" was replaced with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). Both the prior and amended versions of DC 7800 apply to scars or other disfigurement of the head, face, or neck. As the Veteran's scars are located on his chest, this code is not for application. The pre-amended version of DC 7801 applies to scars that are deep and nonlinear, and provides for a 10 percent disability rating when such scars cover an area or areas of at least 6 square inches (39 square centimeters). Note (1) states that a deep scar is one associated with underlying soft tissue damage. The amended version also applies to scars that are associated with underlying soft tissue damage. As the Veteran's scars have not been assessed as deep and nonlinear, associated with underlying soft tissue damage, or of sufficient area, this code is not for application. Under pre-amended DC 7802, scars not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. Under amended DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. In this case, the Veteran's scars do not cover at least 929 square centimeters, and this code is not for application. DC 7804 was not affected by the amendments. Under that code, scars can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The evidence shows that the Veteran's bilateral mastectomy scars are not painful or unstable, making this DC inapplicable. Therefore, DC 7805 applies. Having reviewed the applicable diagnostic codes, the question before the Board is whether the Veteran's bilateral mastectomy scars, alone, result in any disabling effects. Turning to the evidence, the Veteran was afforded a VA examination in February 2015. The examiner recorded that the Veteran underwent a bilateral mastectomy in 2010 and recovered with minimal problems, the exception being some mild tenderness around his nipples. The Veteran's scars, located on his chest, were horizontal and below the nipple line. Both scars were identified as linear; the right scar measured 18.1 centimeters by 0.6 centimeters, and the left scar measured 27.3 centimeters by 0.8 centimeters. Neither scar was painful and/or unstable. The examiner concluded that neither scar results in limitation of function. The Veteran underwent another VA examination in September 2015, this time for his breast condition. At the time of that examination, the Veteran stated that his scars are not painful, do not itch, and denied breakdown of scar tissue, though he did indicate that his scars visually bothered him. At the time of his hearing in July 2019, the Veteran indicated there is not any pain associated with the scars, then seemingly changed his position and said there is "just a little pain, but not a lot...not as much as it was before...where I had general sensitivity before that no longer exists." The Veteran thereafter testified he experienced loss of muscle mass and that he now experiences limitation of function. However, subsequent VA examinations attributed these feelings to his muscle atrophy, for which he has been service-connected at disability ratings of 40 percent and 30 percent. His scars were assessed once more in a VA examination for neuropathy in December 2020. This examiner documented that his scars were not painful or unstable, and did not have a total area equal to or greater than 39 square centimeters. The right scar measured 18.2 centimeters by 0.2 centimeters and the left scar measured 20.6 centimeters by 0.4 centimeters. In order for his service-connected bilateral mastectomy scars to warrant a compensable disability rating under DC 7805, there must be some resulting limitation of function; however, the evidence of record does not document that the Veteran's scars alone have resulted in limitation or impairment of function for any period on appeal. The Veteran, as a layperson, is competent to report the symptoms he has experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Here, while the Veteran has testified he experiences loss of muscle mass and limitation of function, subsequent VA examinations have determined these issues are not directly related to his scars, but instead from other residuals as a result of his bilateral mastectomy. As such, a compensable disability rating is not warranted under DC 7805. Moreover, the scars have not been found to be painful or unstable upon physical examination; therefore, a compensable disability rating is not warranted under DC 7804. In sum, as there are no disabling effects caused by the Veteran's scars indicated in the record, the Board must deny the Veteran's claim for entitlement to a compensable disability rating for service-connected bilateral mastectomy scars. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.