Citation Nr: 22018559 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-21 028 DATE: March 29, 2022 ORDER Entitlement to service connection for a scar, residuals of left breast mass excision, is granted. REMANDED Entitlement to a compensable disability rating for hemorrhoidectomy is remanded. FINDING OF FACT The Veteran has a painful scar which was caused by her in-service left breast mass excision. CONCLUSION OF LAW The criteria for entitlement to service connection for a scar, residuals of left breast mass excision, have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to June 2001, February 2005 to March 2006, July 15, 2007 to June 14, 2008, January 5, 2009 to July 31, 2009, and from August 2009 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Veteran filed a claim for service connection for a left breast tumor. She has since clarified that she is claiming entitlement to service connection only for a scar, residuals of an in-service left breast mass excision. See September 2021 Hearing Transcript. In February 2022, the Veteran submitted an appointment of individual as claimant's representative (VA Form 21-22a), changing her representative from the California Department of Veterans Affairs to an accredited agent, Veronica Lira. Generally, a new Form 21-22a constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). With regard to the claims on appeal, however, notification of certification and transfer of records was completed in September 2019. Requests for change in representation must be within 90 days of such certification, and will not be accepted after that time period unless the appellant demonstrates on motion that there was good cause for the delay. 38 C.F.R. § 20.1304(b). As the Form 21-22a was submitted after the 90-day period and good cause has not been alleged or shown, and the California Department of Veterans Affairs represented the Veteran at her September 2021 Board hearing, the California Department of Veterans Affairs will be considered the Veteran's representative for purposes of this decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is claiming entitlement to service connection for a scar as a residual of her in-service left breast lumpectomy. Specifically, she testified that the residual scar from the lumpectomy is tender and painful. She further stated she was unable to touch the area of her scar without pain. See September 2021 Hearing Transcript. The Veteran has been diagnosed with a 6 centimeter scar of the anterior trunk, left breast. See August 2015 Scars/Disfigurements Disability Benefits Questionnaire (DBQ). Accordingly, she has a current disability. Davidson, 581 F.3d 1313. Regarding an in-service event or injury, there is evidence that the Veteran had a left breast excision of a recurrent cyst in March 2010. See January 2010 Medical Record. As to the nexus requirement, the August 2015 VA examiner noted the Veteran's scar was due to her in-service 2010 left breast cyst removal. See August 2015 Scars/Disfigurements DBQ. Accordingly, the Board finds that the criteria of entitlement to service connection for a scar, residuals of left breast cyst excision, have been met. REASONS FOR REMAND The Veteran was last afforded a VA examination to assess the severity of her service-connected hemorrhoidectomy in August 2015. The Veteran testified that her symptoms have increased since that time, to include possible scarring. See September 2021 Hearing Transcript. Generally, the passage of time since the most recent VA examination is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VACOPGCPREC 11-95 (1995). However, when the evidence of record indicates that symptoms have increased in severity since the previous examination, a new VA examination is warranted. Accordingly, a new VA examination should be afforded the Veteran in this case. See Snuffer, 10 Vet. App. at 403. The Veteran also testified that she receives private treatment for her hemorrhoids. See September 2021 Hearing Transcript. On remand, the RO should attempt to obtain these records. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated from July 2015, forward. 2. Contact the Veteran and afford her the opportunity to identify or submit any pertinent evidence in support of her increased rating claim, to include records of any private treatment. Based on her response, attempt to procure copies of all records which have not been obtained from identified treatment sources, to include her treatment records from Dr. Dutta. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran and her representative of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for appropriate VA examination(s) to assess the current severity of her service-connected hemorrhoidectomy. Appropriate DBQs should be filled out for this purpose, if possible. The entire claims file and a copy of this REMAND must be made available to the examiner. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be performed and all clinical findings reported in detail. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.