Citation Nr: 21041081 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-24 839 DATE: July 8, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for pharynx disability. Entitlement to service connection for pharynx disability is denied. From July 15, 2019, a disability rating of 10 percent, but no higher, for scar, status post fibroadenoma excision of the left breast is granted, but a compensable disability rating prior to July 15, 2019 is denied. FINDINGS OF FACT 1. In a February 1986 rating decision, entitlement to service connection for pharyngitis was denied; the Veteran did not file a notice of disagreement and no new and material evidence was received in the year following issuance of the rating decision. 2. Additional evidence received since the RO's February 1986 decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for pharyngitis. 3. A chronic disability of pharyngitis is not shown. 4. From July 15, 2019, the scar, status post fibroadenoma excision of the left breast is shown to be painful, but not unstable and is less than 39 square centimeters in area; it does not result in functional impairment or limitation. 5. Prior to July 15, 2019, the scar, status post fibroadenoma excision, left breast is not shown to be painful or unstable and is less than 39 square centimeters in area; it does not result in functional impairment or limitation. CONCLUSIONS OF LAW 1. New and material evidence has been received since the February 1986 rating decision that denied entitlement to service connection for pharyngitis and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for pharyngitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. From July 15, 2019, the criteria for entitlement to a 10 percent disability rating, but no higher, for scar, status post fibroadenoma excision, left breast, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804. 4. Prior to July 15, 2019, the criteria for entitlement to a compensable disability rating for scar, status post fibroadenoma excision, left breast, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1979 to March 1985. New & Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In October 1985, the Veteran filed a claim of service connection for pharyngitis. Of record were service treatment records and a December 1985 VA ENT consultation regarding pharyngitis which showed a normal HEENT examination. A February 1986 rating decision denied the claim. The basis for the denial of service connection for pharyngitis was the absence of a diagnosis. The Veteran did not file a notice of disagreement and no evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Thus, such rating decision is final. In November 2011, the Veteran filed a claim of service connection for pharyngitis. A January 2012 VA treatment record reflects the Veteran's report of pharyngitis in Germany and she reported that she has had recurring episodes of the pharyngitis with headaches. 10/22/2020 CAPRI at 446. A September 2012 VA examination reflects the examiner's finding that the Veteran does not have chronic pharyngitis, noting that pharyngitis is a temporary condition terminated with treatment and does not give rise to rhinitis. In a September 2012 rating decision, the previous denial was confirmed and continued. In light of the Veteran's lay assertions at the Board hearing of a recurrence of pharyngitis, the Board finds that this constitutes new and material evidence and the claim of service connection for pharyngitis is reopened. Shade, 24 Vet. App. at 117-20. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A December 1983 service treatment record reflects an assessment of exudative pharyngitis. 01/28/2015 STR-Medical at 89. A December 1983 'Inpatient Treatment Record Cover Sheet' reflects a diagnosis of pharyngitis, acute. Id. at 123. A December 1985 VA ENT consultation regarding pharyngitis showed a normal HEENT examination. 11/06/1985 Medical Treatment Record-Government Facility at 1. A September 2012 VA examination reflects the Veteran's report of the 1983 in-service diagnosis of pharyngitis and she reported that every year she has swelling of the throat a few times per year and she is not able to swallow. She reported that she has sought emergency room treatment and has been told she has sinus drainage and was treated for bronchitis. She reported that she still has recurrence but does not see a physician and takes over the counter medication. The examiner stated that the Veteran does not have chronic pharyngitis, noting that pharyngitis is a temporary condition terminated with treatment and does not give rise to rhinitis. In March 2021, the Veteran underwent an examination wherein the examiner diagnosed acute pharyngitis, resolved. The Veteran reported recurring episodes of pharyngitis with headaches since service. She has constant drainage in her throat and episodes of coughing, hoarseness and swelling of the throat. The examiner noted a greater than 15-year history of tobacco abuse. The examiner proffered a negative etiological opinion. The examiner acknowledged the December 1983 treatment for an acute episode of pharyngitis treated with antibiotics. A February 1985 separation examination revealed no complaints or residual disability resulting from this condition. VA treatment records dated in January 2012 showed a complaint of recurrent pharyngitis, but the examination was normal and a tobacco history of 3 to 4 packs per day was noted with no interest in quitting. The examiner noted that the March 2021 HEENT showed normal head, nontender, no conjunctival injection, no drainage, no preorbital edema, tenderness, or exudates. Her throat showed that oral mucosa was pink and moist with no buccal nodules or lesions seen. Her pharynx was normal in appearance and clear without exudate erythema or edema. With regard to her nose, nares were patent bilaterally without sign of infection exudate or edema. With regard to sinuses, there was no tenderness to palpation of sinuses. With regard to ears, the canal was clear without discharge. TMs were normal in appearance with normal landmarks visualized. The examiner stated that the evidence shows that the Veteran's in-service acute pharyngitis resolved without recurrent episodes. In the absence of proof of a current chronic disability of pharyngitis, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Thus, while it is established that the Veteran had acute pharyngitis during service, the evidence of record does not establish any residuals from acute pharyngitis nor a diagnosis of chronic pharyngitis. Thus, the Board cannot conclude that the Veteran currently suffers from such a disability. The Board has given consideration to the lay contentions of the Veteran, to include her testimony before the Board, but her lay assertions are insufficient to establish a medical diagnosis. While the Veteran is capable of attesting to any symptoms, she believes she has suffered from since service, her lay testimony alone is not competent evidence of a chronic disability. In light of her lay assertions, she was afforded an examination which reflects no chronic pharyngitis diagnosis. Moreover, the examiner was aware of the lay contentions in reaching this conclusion. Absent a showing of a disability of chronic pharyngitis, service connection cannot be established. The claim is therefore denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran's contentions, treatment records, and C&P examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is noted that the Veteran has not raised any challenges with respect to any deficiencies in the examination reports. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). From February 12, 2021, a 10 percent rating is in effect for scar, status post fibroadenoma excision, left breast, and a 0 (zero) percent rating is in effect for the period prior to February 12, 2021. Such ratings are assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. This diagnostic code requires that the scar be evaluated under the rating criteria for diagnostic codes 7800, 7801, 7802, and/or 7804, as appropriate. Diagnostic Code 7800 is not for application, as the Veteran's service-connected left breast scar does not involve the head, face, or neck. During the pendency of this appeal, the rating criteria for evaluating scar conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. The Veteran's symptoms will be evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran will be applied. See 83 Fed. Reg. 32592, 32593 (July 13, 2018) ("[F]or 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."). Under the rating criteria in effect prior to the August 13, 2018 changes, a minimum compensable rating (10 percent) for scars not of the head, face, or neck is warranted if (1) the scar is deep and nonlinear and of at least 39 square centimeters in area; (2) the scar is superficial and nonlinear and of at least 929 square centimeters; or (3) the scar is unstable or painful. Under the revised rating criteria, effective August 13, 2018, a minimum compensable rating (10 percent) for scars not of the head, face, or neck is warranted if (1) the scar is associated with underlying soft tissue damage and of at least 39 square centimeters in area; (2) the scar is not associated with underlying soft tissue damage and of at least 929 square centimeters in area; or (3) the scar is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. 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, Diagnostic Code 7804, Note (1). The 10 percent rating was assigned in contemplation of a February 12, 2021 C&P examination reflecting the Veteran's complaints of sharp, aching, and throbbing pain of the left breast scar. While for the period prior to February 12, 2021 there is no objective medical evidence of pain affecting the left breast scar, in light of the Veteran's July 15, 2019 testimony that she has "something on the inside" of her breast that is causing her pain, the Board will assign the 10 percent rating effective July 15, 2019. A disability rating in excess of 10 percent is not warranted as there are no showings that the scar is unstable and the scar measures 4 centimeters by 1 centimeter. No functional impairment or physical limitation due to the left breast scar has been shown. For the period prior to July 15, 2019, a compensable disability rating is not warranted. The February 2021 examiner indicated that her symptoms associated with the left breast scar had worsened. Prior to this, the medical evidence of record does not reflect any objective findings of pain. For example, a September 2012 C&P examination reflects the Veteran's report of a sharp pain shooting from her nipple but the excision scar along her left nipple does not cause any discomfort. The excisional scar along the left areola area was very faint, flat, nontender, and difficult to visualize. The assessment was status post fibroadenoma excision of the left breast without residual other than the well healed excisional scar, and normal breast exam with fibrocystic tissue. The examiner commented that the discomfort the Veteran was feeling in her left breast was most likely associated with the fibrocystic tissue not with the scar. The Veteran submitted an April 2015 treatment record, which reflects that a cyst was detected in the left breast localized by ultrasound. 08/02/2019 Medical Treatment Record-Non-Government Facility. Such record, however, does not reflect any residual symptomatology associated with the left breast scar. The Veteran submitted treatise materials regarding breast cysts, but such does provide support for an increased rating for her left breast scar. 08/02/2019 Correspondence. VA and private treatment records do not otherwise reflect pain or instability of the scar, nor functional impairment or physical limitation due to the left breast scar. For the period prior to July 15, 2019, the criteria for a compensable rating for the left breast scar have not been met, under either the prior or current rating criteria. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.