Citation Nr: 21071042 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-25 379 DATE: November 29, 2021 ORDER The reduction in rating for the Veteran's painful scars from 30 to 10 percent effective February 7, 2018 was improper; therefore, the 30 percent rating is restored as of the date it was reduced. Entitlement to compensable rating for male gynecomastia, status post breast surgery, is denied. Entitlement to a rating in excess of 30 percent for the painful scars, status post excision of breast tissue, is denied. FINDINGS OF FACT 1. The evidence used to reduce the rating for the Veteran's painful scars from 30 to 10 percent did not show improvement in them in terms of his ability to function under the ordinary conditions of life and work. 2. He underwent surgery involving a wide local excision removing a portion of tissue from both breasts but without significant alteration of their size or form. 3. He only has two scars that are painful and none that are unstable. CONCLUSIONS OF LAW 1. The criteria are met for reinstatement of the 30 percent rating for the painful scars retroactively effective as of February 7, 2018. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e); 3.344(c); 4.1, 4.71a, Diagnostic Code (DC) 7804. 2. The criteria are not met for entitlement to a compensable rating for the male gynecomastia, status post breast surgery. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7626. 3. The criteria are not met for entitlement to a rating higher than 30 percent for the painful scars, status post excision of breast tissue. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 2003 to July 2006. This appeal to the Board of Veterans' Appeals (Board) is from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a "virtual" teleconference hearing in August 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Regarding the issue of the propriety of the reduction in rating for the painful scars, the Board must point out that a claim for an increased rating is separate and distinct from a claim conversely concerning whether a reduction in rating was appropriate. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). In this case at hand, however, the reduction actually stems from a VA examination conducted in connection with a claim for an increased evaluation. Thus, the Veteran's continuous appeal for an increased rating for these scars inherently also includes contestation of the propriety of the reduction that occurred during the course of this appeal. Given that the Board is restoring the prior rating for the Veteran's scars, albeit denying any higher rating, there is no prejudice to him in the Board taking jurisdiction over this reduction in rating issue. Accordingly, the Board has characterized the appeal as also involving the issue of whether the reduction in rating was warranted, in addition to the increased rating claim for this same disability. 1. Whether the reduction in rating for the painful scars from 30 to 10 percent effective February 7, 2018 was appropriate? The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. See 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. See 38 C.F.R. § 3.105(i)(1). However, where there is no reduction in the amount of compensation payable to a beneficiary, 38 C.F.R. § 3.105(e) does not apply as is the case here. A February 2018 rating decision reduced the rating for the Veteran's service-connected painful scars from 30 to 10 percent, effective February 7, 2018. At the time of that reduction, the 30 percent rating had been in effect for less than 5 years. In a rating-reduction case involving a rating in effect for less than 5 years (disability considered not yet stabilized and likely to improve), such reduction is considered warranted if reexamination discloses improvement in the disability. 38 C.F.R. § 3.344(c). Regulations "impose a clear requirement that VA rating reductions... be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in a Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the Veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating-reduction case, VA has the burden of establishing that the disability has improved. A rating-reduction case focuses on the propriety of the reduction and is not the same as an increased-rating issue, which conversely places the burden of proof on the Veteran to show that his service-connected disability has worsened. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Here, despite what the RO concluded, VA has not shown improvement in the Veteran's painful scars meaning actual improvement in his ability to function under ordinary conditions of life and work. The basis of his 30 percent rating were the results of an October 2016 VA examination determining he had nine painful scars on his chest but that they did not cause him any functional impact. In comparison, the February 2018 VA examination that was the basis of the reduction in rating found that he had only two painful scars and that they also did not cause him any functional impact. However, he explained during his hearing why his scars are sometimes more apparent than at others and, as their functional impact in any event has not changed, the RO has failed to meet its burden of showing improvement in his actual ability to function under the ordinary conditions of life and work. Thus, the reduction in rating was unwarranted. Consequently, the prior 30 percent rating must be reinstated as of the date it was reduced so as of February 7, 2018. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), 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 the 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 the Veteran's favor. 38 C.F.R. § 4.3. "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, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 2. Entitlement to compensable rating for male gynecomastia, status post breast surgery This disability is rated under DC 7626. According to DC 7626, a 0 percent (noncompensable) rating is provided following wide local excision without significant alteration of size or form of both or one breast. A 30 percent rating is warranted following a simple mastectomy or wide local excision with significant alteration of size or form of one breast, and a 50 percent rating is warranted for both breasts. A 40 percent rating is provided following modified radical mastectomy of one breast, and a 60 percent rating is warranted for both breasts. Finally, a 50 percent rating is provided following radical mastectomy of one breast, and an 80 percent rating is warranted for both breasts. 38 C.F.R. § 4.116, DC 7626. For VA purposes: (1) Radical mastectomy means removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament; (2) Modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast), but pectoral muscles are left intact; (3) Simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but lymph nodes and muscles are left intact; (4) Wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. Id., Notes (1)-(4). The Veteran underwent a VA examination in October 2016. The examiner confirmed the Veteran had undergone surgery involving wide local excision removing a portion of tissue from both breasts. However, the examiner also indicated that surgery resulted in no functional impact on the Veteran. The Veteran had another VA examination in February 2018. This additional examiner reaffirmed the Veteran underwent surgery involving wide local excision removing a portion of tissue from both breasts. This additional examiner further determined that the surgery resulted in the loss of 25 percent or more tissue from a single breast or both breasts in combination. But this examiner added that the surgery caused the Veteran no functional impact. When considering the results of those VA examinations and all other relevant evidence of record, the Board finds that the Veteran's residuals of male gynecomastia, status post breast surgery, do not warrant a higher rating under DC 7626. His breast surgery was a wide local excision removing only a portion of each breast's tissue. As the medical evidence shows that he had wide local excision resulting in removal of a portion of the breast tissue, his disability is most commensurate with the existing 0 percent (noncompensable) rating. The evidence does not show the Veteran underwent a simple (or total) mastectomy resulting in removal of all the breast tissue, nipple, and a small portion of the overlying skin. The evidence also does not reflect that the surgery has been characterized as a radical or modified radical mastectomy. Moreover, the VA examiners found no pertinent physical findings, complications, conditions, signs, and/or symptoms owing to his breast conditions. The Board further notes that entitlement to special monthly compensation (SMC) for loss of breast tissue under subsection (k) is not warranted as only female Veterans are eligible for an award of SMC on this basis. See 38 U.S.C. § 1114(k). Accordingly, as the preponderance of the evidence is against the Veteran's claim for a compensable rating for male gynecomastia, status post breast surgery, the benefit of the doubt rule does not apply, and this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. 3. Entitlement to a rating higher than 30 percent for the painful scars, status post excision of breast tissue The Veteran contends that he is entitled to a rating greater than 30 percent for his painful scars, which are rated under DC 7804. According to DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. This is the highest rating available under this DC. In addition, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number of unstable or painful scars. 38 C.F.R. 4.118, DC 7804, Note (2). The Veteran first had a VA examination for his scarring in October 2016. The examiner found that the Veteran had nine painful scars, but they were stable. The examiner indicated the scars did not have a functional impact on the Veteran. The Veteran was next examined by VA in February 2018. The examiner found that the Veteran had just four scars, only two of which of were painful. The scars also continued to be stable, and the examiner again indicated they did not have a functional impact on the Veteran. Most of the Veteran's hearing testimony regarding these scars concerned their cosmetic appearance and his resultant reluctance to display them in public. He also cited what he believes are functional limitations attributable to them, but this has not been borne out in the reports of his VA compensation examinations and in the other relevant medical and lay evidence of record. To the contrary, based on the results of his VA examinations and the other relevant evidence in the file (medical and lay), an increase in the rating for his scarring is not warranted. Throughout the entire period on appeal a 30 percent rating has been assigned which is the highest rating allowed under DC 7804. As the preponderance of the evidence is against this, the benefit of the doubt rule is not applicable, and this claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.