Citation Nr: 21075040 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-63 889 DATE: December 17, 2021 REMANDED Entitlement to an initial compensable rating for bilateral gynecomastia, status-post soft tissue reduction with residual scars, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2016 by a Department of Veterans Affairs (VA) Regional Office. In accordance with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in February 2020. However, in January 2020, he withdrew his hearing request. 38 C.F.R. § 20.702 (e). At that time, the Veteran requested 90 days, through April 13, 2020, to submit additional evidence. No additional evidence was received within such time. In June 2021, the Board remanded the case for additional development. Entitlement to an initial compensable rating for bilateral gynecomastia, status-post soft tissue reduction with residual scars, is remanded. As reflected in the Veteran's May 2016 Notice of Disagreement (VA Form 21-0958), he contends that his bilateral gynecomastia, status-post soft tissue reduction with residual scars should be evaluated as 30 percent disabling. According to a December 2011 medical record, the Veteran has a history of breast surgery mastectomy for bilateral gynecomastia, with right breast excision in 1999 and left breast excision in 2006. The Veteran appeared for a VA examination for Breast Conditions and Disorders in March 2016. Per the March 2016 Breast Conditions DBQ, the Veteran's gynecomastia began in 1995; the Veteran reported his breast was sensitive to the touch, and he developed pain over the next years. According to the March 2016 examination, the Veteran was diagnosed with gynecomastia in 2003 by Dr. K.F. The Veteran reported during the examination that his left breast had become sensitive again. The Board observes, per that noted history, the Veteran reportedly had sensitivity in his left breast prior to his December 2006 surgery, which would have been before he had his surgical scar. According to the VA examination, the Veteran has one linear right nipple scar measuring 4 cm, and one linear left nipple scar measuring 4 cm. According to the examiner, the Veteran's surgery did not result in the loss of 25 percent or more tissue from a single breast or from both breasts in combination. A statement from Dr. A.J. at Kaiser Permanente, which was received in March 2017, reflects the Veteran underwent removal of a portion of his left breast, via wide local incision, with significant alteration to his left breast in December 2006; the procedure was performed by Dr. J.H. Per the statement, no lymph nodes were removed. Dr. A.J. documented that the pathology report demonstrated gynecomastia. As reflected in the June 2021 Remand, the Board directed the Veteran to be afforded a VA examination to determine the residuals of his December 2006 breast reduction surgery. The examiner was directed to identify whether there was sensitivity in one or both breasts, and to determine whether the sensitivity previously noted in the left breast was due to his scar or any neurological impairment. The Board directed that if the sensitivity in the Veteran's left breast is not due to his scar, the examiner should determine the etiology. Further, per the remand, the Board directed the examiner to offer an opinion as to whether there was a significant alteration of size or form of either breast as a result of the Veteran's December 2006 breast surgery. In this regard, the examiner was requested to indicate whether the December 2006 breast surgery resulted in the loss of 25 percent or more tissue from a single breast or both breasts in combination. The examiner was directed to explain whether any significant alteration of size or form was the intended result of the surgery or whether any significant alteration was an unwanted but foreseeable consequence of the surgery. In accordance with the June 2021 Remand, the Veteran appeared for an in-person examination in July 2021. The examiner interviewed the Veteran and reviewed his electronic folder in VBMS. Within the medical history, the examiner documented that the Veteran had a lump removed from his right breast in 1988 and had another lump removed from his left breast in 2006. The examiner noted the Veteran does have a benign neoplasm or metastases related to his bilateral gynecomastia, status-post. In regard to residual conditions or complications due to neoplasm or its treatment, other than those already documented in the examination, the examiner indicated the Veteran's left breast was sensitive if touched. In regard to scarring, although the examiner determined that the Veteran's skin conditions cause scarring, a separate Scars/Disfigurement DBQ was not completed. The corresponding July 2021 Medical Opinion reflects the examiner's opinion that the Veteran's sensitivity in his left breast is due to his scar, not a separate neurological impairment. However, the July 2021 VA examiner did not provide a rationale for this finding. In regard to whether there was a significant alteration of size or form of either breast as a result of the Veteran's December 2006 breast surgery, the examiner responded the Veteran stated there was a significant alteration of size. Likewise, when asked whether the December 2006 breast surgery resulted in the loss of 25 percent or more tissue from a single breast or both breasts in combination, the examiner responded that the Veteran reported the surgery resulted in a loss of 25 percent or more tissue from both breasts combined. In regard to whether any significant alteration of size or form was the intended result of the surgery, the examiner indicated it yes, because it was a surgery for breast reduction and removal of bilateral fibrofatty tumors. The July 2021 VA examiner referenced the December 2006 medical treatment record reflecting the left breast mass consisting of three focally hemorrhagic fibrofatty tissues, aggregating to 3.5 x 4 x up to 2.5 cm. aggregating/3 one fragment in each, and documented that the surgeon removed a mass the size of a quarter. The examiner indicated she could not locate any records pertaining to size of the right breast mass. As such, although the Veteran reported that surgery resulted in a loss of 25 percent or more tissue from both breasts combined, the examiner was not able to discern the size of the mass removed from the right breast to verify the Veteran's statement; the mass removed from the left breast was noted to be the size of a quarter. In fact, the July 2021 VA examiner concluded that "[t]he lack of sufficient information/evidence prevents [her] from providing the requested opinions without resorting to speculation." The Board finds that the evidence is insufficient to determine the severity of the Veteran's bilateral gynecomastia, status-post soft tissue reduction with residual scar residuals and, therefore, a remand is warranted to obtain records related to the Veteran's right breast mass excision. Additionally, upon remand, the Veteran should be afforded a VA examination regarding the severity of his bilateral gynecomastia, status-post soft tissue reduction with residual scar residuals to ensure compliance with the June 2021 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any outstanding VA treatment records related to his bilateral gynecomastia and breast mass excisions, and any previously unidentified private medical providers who have provided treatment for the Veteran's bilateral gynecomastia claim. After receiving any necessary authorization forms, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. After obtaining all outstanding records, schedule the Veteran for an appropriate VA examination to determine the severity of his bilateral gynecomastia, status-post soft tissue reduction with residual scar residuals. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be performed. As part of the examination, the examiner should also complete a Scar/Disfigurement Conditions DBQ. The examiner should identify whether there is sensitivity in one or both breasts, and specifically determine whether the sensitivity previously noted in the left breast is due to his scar or any separate neurological impairment. In rendering such opinion, the examiner should consider and address the March 2016 VA examination wherein the documented history reflects the Veteran's gynecomastia began in 1995; the Veteran reported his breast was sensitive to the touch, and he developed pain over the next years. The examiner should also address the July 2021 examination which noted the Veteran had a lump removed from his right breast in 1988. If the sensitivity in his left breast is not due to his scar, the examiner should determine the etiology of the sensitivity. The examiner should also comment as to whether there was a significant alteration of size or form of either breast as a result of the Veteran's December 2006 breast surgery and/or his prior 1999 right breast mass excision surgery. In this regard, the examiner should state whether the December 2006 breast surgery and/or 1999 right breast surgery resulted in the loss of 25 percent or more tissue from a single breast or both breasts in combination. In providing this opinion, the examiner should explain whether any significant alteration of size or form was the intended result of the surgeries (i.e., reduction) or whether any significant alteration was an unwanted but foreseeable consequence of the surgeries. A rationale for any opinion offered should be provided. In this regard, if the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). He/she must make clear that he/she has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to mere speculation. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.