Citation Nr: 22016236 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-40 700A DATE: March 21, 2022 ORDER Entitlement to service connection for status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision is denied. FINDINGS OF FACT 1. The Veteran underwent surgical removal of bilateral gynecomastia in 1977. The residuals of this surgery were noted on examination prior to entry into both periods of active service. 2. The Veteran's status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision clearly and unmistakably did not increase beyond the natural progression of the disability during any period of active service. CONCLUSION OF LAW The criteria for service connection for status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1983 to June 1991 and from June 1994 to March 2011. This claim is on appeal from a March 2014 rating decision. The appeal was remanded by the Board in January 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision In December 2013, the Veteran filed a VA 21-526 Veterans Application for Compensation or Pension seeking service connection for gynecomastia. The Veteran has contended that his current residuals of bilateral gynecomastia are related to his active duty service. See December 2013 Statement in Support of Claim; April 2014 Notice of Disagreement; and August 2016 VA Form 9. Initially, the Board finds there is a current diagnosis of status post-surgical removal of bilateral gynecomastia with elective cosmetic surgical revision (residuals of bilateral gynecomastia). See April 2021 Breast Conditions examination report. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. The Veteran's service treatment records (STR) show that he underwent surgical removal of bilateral gynecomastia in 1977, prior to his entry into service in June 1983. The Veteran's entrance examination in September 1982 clearly shows the surgical scars on the Veteran's chest in the notes section on the first page of the examination and a Report of Medical History completed at that time reports in the physician's summary that the Veteran previously underwent an operation related to bilateral gynecomastia. In June 1994, the Veteran's entrance examination reports breast tissue removal for bilateral gynecomastia in section 73. Based upon this evidence, the Board finds that the Veteran's residuals of bilateral gynecomastia were noted on examination prior to both of the Veteran's periods of service. Accordingly, the Board finds that the Veteran's bilateral breast tissue was not shown to be of sound condition upon entrance to either period of active duty service; therefore, the presumption of soundness does not attach to the claimed residuals of bilateral gynecomastia in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Cases in which the condition is noted on entrance are governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained-of condition was not noted on entrance into service). 38 U.S.C. § 1153. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Independent medical evidence is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). Significantly, the Board notes that the evidence associated with the claims file includes an April 1998 narrative from D.C.F., M.D. The physician indicates that the Veteran's surgical residuals were resulting in burning sensations and shooting pains in the area of his surgically removed bilateral gynecomastia and stated that the condition had been worsening over time. The physician recommended revisional surgery to the affected areas to improve the Veteran's condition. The Veteran underwent revision of his bilateral gynecomastia during active service. See October 2002 operative report; See February 2003 operative report. While the Veteran denied significant worsening of his condition during his April 2021 VA examination and stated that these procedures were for cosmetic purposes only, when the Veteran was asked about discomfort with strenuous exercise during service he reported, "yes, but it was not major." The Board finds that there is evidence of an in-service increase of the Veteran's residuals of bilateral gynecomastia during his second period of active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. While there is evidence of an in-service increase of the Veteran's pre-service condition, the Board finds that the Veteran's residuals of bilateral gynecomastia clearly and unmistakably did not increase beyond the natural progression of the disability during any period of active service. The Board finds probative the opinion of the April 2021 VA examiner that opined that the Veteran's condition that clearly and unmistakably pre-existed his active service was clearly and unmistakably not aggravated beyond the natural progression of the disability during the Veteran's active service. The examiner supported this opinion by noting that the most common causes of gynecomastia is imbalance of hormones, namely estrogen levels that are too high or out of balance with testosterone, and that the evidence did not indicate that any hormone imbalance worsened beyond the natural progression of the disability during the Veteran's active service. The Veteran noted that review of the Veteran's service treatment records (and records subsequent to service) did not indicate excessive amount of stress during service and that the evidence did not indicate abnormal weight gain during active service, which could be indicative of stress or hormonal imbalance. The examiner also noted the Veteran's reports that the surgery in the military was for purely cosmetic reasons, despite what the letter from D.C.F., M.D. states. While the Veteran reported some discomfort with exertion, he indicated that the primary reasons for the surgeries were that he did not like the way it looked. The Board finds that the examiner's opinion considered all of the pertinent evidence of record, to include the lay statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, no competent evidence has been offered that the Veteran's condition was aggravated beyond the natural progression of the disability during the Veteran's active service. The narrative from D.C.F., M.D. does not indicate that that the Veteran's condition worsened beyond the natural progression of the disability, but merely reports worsening of the condition. Further, the Veteran himself denied worsening of the condition during his April 2021 VA examination. The Veteran's medical records associated with the claims file do not otherwise indicate that the Veteran's condition was aggravated beyond the natural progression of the disability during the Veteran's active service. (Continued on the next page) Based the competent and credible evidence of record, the Board finds that the Veteran's residuals of bilateral gynecomastia that clearly and unmistakably pre-existed his active service were clearly and unmistakably not aggravated beyond the natural progression of the disability during the Veteran's active service. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct entitlement is not warranted. See 38 U.S.C. §§ 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.306. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.