Citation Nr: 21042753 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-59 013 DATE: July 13, 2021 ORDER Prior to April 7, 2005, an initial compensable rating for fibrocystic breast disease, mastitis is denied; beginning on April 7, 2005, an initial rating of 30 percent, but no higher, for fibrocystic breast disease, mastitis is granted. Entitlement to special monthly compensation (SMC) for the anatomical loss of 25 percent or more of tissue from a single breast is denied. FINDINGS OF FACT 1. Prior to April 7, 2005, the Veteran's fibrocystic breast disease, mastitis was not manifested by wide local excision with significant alteration of size or form; beginning on April 7, 2005, the Veteran's fibrocystic breast disease, mastitis was manifested by wide local excision with significant alteration of size or form as to her right breast only. 2. The preponderance of the evidence is against a finding that the Veteran's fibrocystic breast disease, mastitis has been manifested by the anatomical loss of 25 percent or more of tissue from a single breast. CONCLUSIONS OF LAW 1. Prior to April 7, 2005, the criteria for an initial compensable rating for fibrocystic breast disease, mastitis have not been met; beginning on April 7, 2005, the criteria for an initial rating of 30 percent, but no higher, for fibrocystic breast disease, mastitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.10-4.10, 4.21, 4.116, DC 7626. 2. The criteria for entitlement to SMC for the anatomical loss of 25 percent or more of tissue from a single breast have not been met. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to June 2001. She served honorably in the United States Army. The Board thanks the Veteran for her service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). In that decision, VA granted service connection for the Veteran's fibrocystic breast disease, mastitis and assigned a noncompensable rating effective March 14, 2005. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hyphenated codes are intended to show that the Veteran's service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Prior to April 7, 2005, an initial compensable rating for fibrocystic breast disease, mastitis is denied; beginning on April 7, 2005, an initial rating of 30 percent, but no higher, for fibrocystic breast disease, mastitis is granted. The Veteran's fibrocystic breast disease, mastitis is rated by analogy under the Diagnostic Code (DC) 7699-7628. 38 C.F.R. § 4.116. Pursuant to the applicable DC 7626, a zero percent rating is warranted following wide local excision without significant alteration of size or form of both or one breast; following simple mastectomy or wide local excision with significant alteration of size or form as to one breast a 30 percent rating is warranted or as to both breasts a 50 percent rating is warranted; following modified radical mastectomy as to one breast a 40 percent rating is warranted or as to both breasts a 60 percent rating is warranted; and finally, following radical mastectomy as to one breast a 50 percent rating is warranted and as to both breasts an 80 percent rating is warranted. Id. Although the term "significant" is not defined in the ratings criteria, the Board observes that Merriam-Webster's Dictionary defines significant to include "a noticeably or measurably large amount." See https://www.merriam-webster.com/dictionary/significant (last visited, July 10, 2021). The Veteran has been service-connected for fibrocystic breast disease, mastitis and assigned a noncompensable rating effective March 14, 2005. VA treatment records from April 7, 2005 document that the Veteran underwent a excisional biopsy on that date in connection with a mass in her right breast. Accordingly, there are two time periods on appeal for a higher rating in this matter; the first is the short time from her service connection date of March 14, 2005 until her surgery on April 7, 2005, and the second is beginning on April 7, 2005 through to the present time. As to the first brief period prior to April 7, 2005, the Board determines that the preponderance of the evidence is against a finding that the Veteran's fibrocystic breast disease, mastitis was manifested by wide local excision with significant alteration of size or form as required for the minimum compensable rating. As this and the remaining ratings criteria implicate a surgical procedure as to one or both breasts, and the preponderance of the evidence demonstrates that it had not occurred yet, a compensable rating prior to April 7, 2005 is not warranted. Next, the Veteran has contended, to include in her August 2015 Notice of Disagreement (NOD) and the August 2020 Board hearing, that a higher rating is warranted based on the reduction in size of her right breast as a result of the April 7, 2005 surgery. The Board notes that in her NOD the Veteran specifically requested a 30 percent rating associated with right breast tissue loss. During the hearing, she described the difference in her breast size as "massive" and testified that she utilizes a sponge and silicone combination bra insert. VA treatment records from the surgery show that dense matted fibrous right breast tissue was removed in three sections but the fatty tissue surrounding it was left in place to maintain integrity of the breast. In all, the excision was contained within a 3x5 centimeter area. The September 2017 VA examination report shows that the Veteran has a slight depressed area corresponding to the 3x5 centimeter excision area but she has not lost 25 percent or more tissue from her breast as a result. Based on consideration of all the evidence, the Board finds that the evidence is at least in equipoise with regard to showing that the Veteran's right breast alteration of size or form has been significant and accordingly a 30 percent rating beginning on April 7, 2005 is warranted. A higher 50 percent rating is not warranted under the same criteria because both breasts are not affected. Further, the preponderance of the evidence is against a finding that the Veteran's fibrocystic breast disease, mastitis has been manifested by modified radical mastectomy as to one or both breasts. VA treatment records to include from April 2005 and the September 2017 VA examination report document that the Veteran underwent a right breast excisional biopsy, also referred to in the record as a lumpectomy, and the medical treatment records are silent as to modified and/or radical mastectomy. Accordingly, beginning on April 7, 2005, a rating in excess of 30 percent is not warranted. 2. Entitlement to SMC for the anatomical loss of 25 percent or more of tissue from a single breast is denied. The Board notes that when providing a 30 percent rating under DC 7626, the claim must be reviewed for entitlement to SMC under 38 C.F.R. § 3.350. See 38 C.F.R. § 4.116. SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule. See 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350. In pertinent part, SMC under subsection (k) is payable for loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. Here, during the August 2020 Board hearing, the Veteran contended that half of her right breast was removed as a result of the April 7, 2005 excisional biopsy. She has also contended that her breasts correspond to differing cup sizes now and she utilizes a bra insert to compensate. However, pursuant to the September 2017 VA examination report, the examiner affirmatively indicated that there was not loss of 25 percent or more tissue from a single breast or both breasts in combination. Rather, the examiner noted a slight depressed area corresponding to the 3x5 centimeter excision area consistent with VA treatment records from the surgery documenting that although dense matted fibrous tissue was removed, the fatty tissue surrounding it was left in place to maintain integrity of the breast. As such, entitlement to SMC has not been demonstrated based on the preponderance of the medical evidence. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, Associate 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.