Citation Nr: 21072903 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-47 164 DATE: December 6, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to January 12, 2017, for the service-connected painful [left breast] scar post lumpectomy is denied. Entitlement to a rating in excess of 20 percent from January 12, 2017, for the service-connected residual painful and unstable scars, right and left breast, status post lumpectomy, is denied. REMANDED Entitlement to a compensable disability rating for the service-connected bilateral status post lumpectomy with scars of the left and right breasts is remanded. Entitlement to a rating in excess of 10 percent for the service-connected status post right ankle fracture is remanded. FINDINGS OF FACT 1. Prior to January 12, 2017, the Veteran's service-connected left breast scar was not shown to include more than one painful or unstable scar; was not associated with underlying soft tissue damage; did not amass an area of 929 square centimeters (cm.); and was not associated with other compensable disabling effects. 2. From January 12, 2017, the Veteran's service connected right and left breast scars are two painful or unstable post lumpectomy scars, one on each breast, or no more than three painful or unstable scars; are not associated with underlying soft tissue damage; do not amass an area of 929 square centimeters (cm.); and are not associated with other compensable disabling effects. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 10 percent prior to January 12, 2017, for the service-connected painful [left breast] scar post lumpectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Codes (DCs) DCs 7800, 7801, 7802, 7804, 7805. 2. The criteria for entitlement to a rating greater than 20 percent from January 12, 2017, for the service-connected residual painful and unstable scars, right and left breast, status post lumpectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.118, DCs 7800, 7801, 7802, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to January 1995. The issues were most recently before the Board of Veterans' Appeals (Board) in August 2019 and remanded for further development. The Board is satisfied that there has been substantial compliance with the August 2019 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating greater than 10 percent prior to January 12, 2017, for left breast scar status post lumpectomy 2. Entitlement to a rating greater than 20 percent from January 12, 2017, for residuals of painful and unstable scars of the right breast status post lumpectomy The Veteran seeks increased evaluations for his service-connected right and left breast scars. The Board finds that higher ratings for the respective disabilities are not warranted, and the claims are denied. The Veteran is service connected for right and left breast scars following lumpectomy surgery. During the period on appeal, prior to January 12, 2017, the left breast scar was rated under DC 7804 at 10 percent. From January 12, 2017, the DC 7804 rating is increased to 20 percent and includes both right and left post lumpectomy surgery scars. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800-7805. These service-connected scars have been rated under DC 7804, as previously discussed. The Board will consider not only the criteria under the currently assigned DC, but also the criteria set forth in other potentially applicable DCs. The scar regulations were revised, effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's case. Thus, the Board will discuss both the old and new scar regulations and apply the more favorable criteria to the Veteran's claims. 38 C.F.R. § 4.118, DCs 7800-7805. Under the scar regulations in effect prior to and since August 13, 2018, DC 7800 provides ratings for scars of the head, face, and neck. The Veteran's right and left breast scars do not involve the head, face, and neck; thus, further discussion of DC 7800 is not necessary. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, DC 7801 provided ratings for scars, other than the head, face, or neck, that were deep or that caused limited motion. Scars that were deep or that caused limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) were rated as 40 percent disabling. Note (1) to DC 7801 provided that a deep scar was one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (2017). Under the scar regulations in effect since August 13, 2018, DC 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated as 40 percent disabling. 38 C.F.R. § 4.118, DC 7801. Under the scar regulations in effect prior to August 13, 2018, DC 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion. Non-linear superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated as 10 percent disabling. Note (1) to DC 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (2017). Under the scar regulations in effect since August 13, 2018, DC 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7802. Under the scar regulations in effect both prior to and after August 13, 2018, DC 7804 provides ratings for scars which are unstable or painful, and assigns a 10 percent rating for superficial unstable scars. DC 7804 provides that one or two scars that are unstable or painful are also rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, DC 7804. Under the scar regulations in effect both prior to and from August 13, 2018, DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Veteran submitted his claim in November 2013 and was given a VA examination in March 2014. The VA examiner identified a scar on the Veteran's left breast status post lumpectomy that the Veteran reported was painful. The examiner characterized the left breast scar as linear and measuring 3 centimeters (cm). Following a lumpectomy of the right breast in May 2016, the Veteran submitted a claim for a painful scar to the right breast in May 2016. The Veteran was given a VA examination in August 2016. The examiner described the Veteran's condition as being service connected for status post lumpectomy with residual painful scar described as a 1 cm nodule subareolar area that was removed with negative pathology in 1995. The Veteran reports a reoccurrence of left breast hypertrophy, that now also includes right sided hypertrophy. The examiner identified two scars: one to the Veteran's left breast from his 1995 lumpectomy and the second to his right breast following incision and draining of an abcess. Both scars were described as superficial and nonlinear. The examiner did describe the total surface area of the Veteran's painful scars to be greater than 39 square cm. A VA examination in January 2017 showed that the Veteran had one scar to each his right and left breast. The Veteran reported to the examiner that his left scar is from a lumpectomy that was removed during service in 1995. The Veteran stated that the left scar occasionally swells, is intermittently painful and often hurts during cold weather. The right scar is from lumpectomy surgery in May 2016. The right scar throbs occasionally since surgery. The examiner noted the Veteran reports that his left breast scar area is unstable and often swells and peels. On examination, the scars were linear with the right breast scar measured at 1.0 cm x 0.4 cm and the left breast scar was measured at 1.0 x 0.3 cm. Both scars were tender upon palpation. The scars did not cause a limitation of function impair the Veteran's ability to work. Private medical treatment records from December 2017 show that the Veteran had surgery for his gynecomastia. In October 2018, the Veteran had another surgery to his right breast for excision of scar tissue and gynecomastia. VA treatment records show that he sought a secondary opinion from a plastic surgeon in May and July 2019 for the incision healing from his right breast lumpectomy and gynecomastia surgery. Pursuant to the Board's August 2019 remand, the Veteran was given a VA examination in December 2019. The examiner identified bilateral breast scars. The Veteran described intermittent, painful residual bilateral scars, more painful on the right than the left, with hypersensitivity to the right breast at times as well. The examiner noted there was no drainage from the scars. However, the Veteran described developing painful cystic lesions around both nipples, with the right nipple being more painful than the left nipple at times, that drain spontaneously within a couple of days. He states that this has happened two to three times since the last surgery in 2018, but he has not been able to be formally evaluated during these times. The examiner found two painful scars, with the first measuring 17 cm x 1 cm and the second scar measuring 1 cm x 1 cm, with a total surface area of 18 square cm. The examiner also found no underlying tissue damage or unstable scars. The Veteran was given a VA examination in September 2021. The examiner identified two scars on the Veteran's right breast. The first scar is above the right nipple and the second scar is medial to the right nipple. The scars are post lumpectomy with surgical cleanouts. Both scars are healed, but painful. The Veteran described the pain as achy with occasional sharp pain. The scar above the right nipple was measured to be 8.3 cm x 1 cm and the scar medial to the right nipple was 0.3 cm x 6.5 cm, for a total square surface of 10.25 square cm. Given that none of these scars are associated with underlying tissue damage, DC 7801, both pre- and post- August 2018 revisions, is not for application here. Further, given that the approximate total area of the right and left breast scars, either evaluated separately or evaluated combined, would not total an area anywhere near 929 square centimeters, DC 7802, both pre- and post August 2018 revision, is also not for application in this case. There are also no additional disabling effects associated with any of these scars, which precludes higher ratings than those currently assigned under DC 7805 for any scars on appeal, alone or combined. This leaves DC 7804 for consideration. Prior to January 12, 2017, the Veteran had one painful scar. See August 2016 VA examination. One or two painful or unstable scars receives a 10 percent rating under DC 7804. A higher 20 percent rating is not warranted unless there are three or four painful or unstable scars. For the period on appeal beginning January 12, 2017, the Veteran had two painful scars, one on each breast. Additionally, the scar on the left breast was occasionally unstable. One or two painful or unstable receives a 10 percent rating under DC 7804. Applying the bilateral factor under 38 C.F.R. § 4.26, the Veteran is entitled to a 20 percent rating, effective January 12, 2017, the date of the VA examination which first revealed objective evidence of two painful or unstable scars. The Board notes that during the September 2021 VA examination, the examiner identified three painful scars. Two painful scars to the right breast and one painful scar to the left breast. The Veteran is already in receipt of a 20 percent rating with the bilateral factor under DC 7804. The 20 percent rating for having three painful scars would not create a higher rating as the Veteran would still only be entitled to a 20 percent rating after September 2021. A higher 30 percent rating is not warranted at any time during the period on appeal under DC 7804 as the Veteran did not have five or more painful or unstable scars. In summary, the preponderance of the evidence is against finding for a rating greater than 10 percent prior to January 12, 2017, for the left breast scar status post lumpectomy and greater than 20 percent for right and left breast scars status post lumpectomy from January 12, 2017. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. Reasons for Remand 1. Entitlement to a compensable disability rating for the service-connected bilateral status post lumpectomy with scars of the left and right breasts is remanded. The Board is unable to make an informed decision on the issue of entitlement to a compensable rating for bilateral status post lumpectomy scars because clarification of the issue on appeal by the Agency of Original Jurisdiction (AOJ) is necessary. The record shows that the Veteran has two scars, one on each breast, but has three disability ratings (two ratings under DC 7804 and one rating under DC 7805). On remand, the Board needs clarification as to whether the Veteran's noncompensable rating under DC 7805 is for the period prior to the scars being assigned separate ratings under DC 7804 or if it is for a third distinct and separately rated disability, in which case the AOJ should identify the specifics of the origin and current status of that rating. 2. Entitlement to a rating in excess of 10 percent for the service-connected status post right ankle fracture is remanded. The Board is unable to make an informed decision on the issue of entitlement to a rating greater than 10 percent for residuals of a right ankle fracture because the January 2017 and December 2019 VA examinations are inadequate. Despite documenting that the Veteran reports stiffness and even severe difficulty walking during flare-up conditions, the examiners did not provide an estimated range of motion (ROM) of the additional limited functionality during flare-ups. Instead, the examiners state that it would be mere speculation to provide an estimated ROM because the Veteran is not being examined during a flare-up. On remand a new examination that provides estimated ROM during flare-ups is warranted. The matters are REMANDED for the following action: 1. Clarify whether the Veteran's noncompensable rating under DC 7805 is for a period prior to the scars being assigned separate ratings under DC 7804 or if it is for a third distinct and separately rated disability, in which case the AOJ should identify the specifics of the origin and current status of that rating. 2. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected residuals of a right ankle fracture. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. 3. Confirm that the VA medical opinions provided comport with this remand, specifically ensuring that, if the Veteran reports flare-ups of his right ankle disability, the examiner provides an estimated ROM. If not, obtain an appropriate addendum opinion. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.