Citation Nr: 22048852 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 19-19 812 DATE: August 26, 2022 ORDER Entitlement to service connection for a shoulder/arm disability, to include as secondary to his service-connected residuals of status post gynecomastia surgery, is denied. Entitlement to an initial 50 percent rating for service-connected residuals of status post gynecomastia surgery is granted. FINDINGS OF FACT 1. The Veteran's shoulder/arm disability is not shown to be causally or etiologically related to an in-service event, injury, or disease and is not caused or aggravated by service-connected residuals of status post gynecomastia surgery. 2. The Veteran has a wide local excision with significant alteration of size or form of both breasts. CONCLUSIONS OF LAW 1. The criteria for service connection for a shoulder/arm disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for entitlement to an initial rating of 50 percent for residuals of status post gynecomastia surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.116, Diagnostic Code 7626. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1953 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran and his daughter testified before a Board hearing. The transcript of the hearing is of record. By way of background, in June 2022, the Board remanded the issue on appeal for further evidentiary development and adjudication; granted an increased rating for his claim for painful scar; and found that a claim for entitlement to service connection for a shoulder/arm disability was raised by the record. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a shoulder/arm disability, to include as secondary to his service-connected residuals of status post gynecomastia surgery, is denied. After a review of the record, the Board finds that the evidence persuasively weighs against the claim for service connection. Regarding the first element of service connection (a current disability), a June 2022 VA examiner diagnosed the Veteran with bicipital tendonitis, rotator cuff tear, and tendinopathy of the right upper extremity and tendinitis of the left upper extremity. As such, the first element of service connection has been met. The Board also notes that the Veteran is service connected for residuals of status post gynecomastia surgery. Concerning the second element of direct service connection, the service treatment records (STRs) are silent for any complaints, symptoms, or diagnoses of a shoulder/arm disability. He was noted to have normal upper extremities in the January 1953 induction examination, March 1953 re-enlistment examination, and March 1956 separation examination. These findings are consistent with his statement as he did not claim that his shoulder/arm disability manifested in service. Instead, he contends that his shoulder/arm disability is the result of his service-connected residuals of status post gynecomastia surgery and that such is aggravated by the latter. As he does not claim, and the evidence of record does not show, that he had shoulder/arm disability-related symptoms in service the Board finds the second element of direct service connection has not been met. As such, the Veteran is unable to avail himself under the theory of direct service connection. Likewise, the Board finds the evidence is also against finding that the Veteran's shoulder/arm disability is proximately due to or the result of or is aggravated beyond its natural progress by service-connected residuals of status post gynecomastia surgery. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Turning to the medical evidence, the Veteran was afforded a VA examination in June 2022. In the June 2022 VA examination, the examiner opined that the claimed condition is less likely than not proximately due to or the result of his service-connected disability. The examiner also opined that the claimed condition is less likely than not aggravated beyond its natural progression by his service-connected disability. The examiner explained that the Veteran had a surgery to treat gynecomastia in March 1954. He returned for enlarged breast tissue and had breast tissue removed bilaterally. The operation was a simple mastectomy with removal of the breast tissue with no muscle or other tissue types. He continued a three-year tour of duty after surgery. He complained of pain in the area of the scars from the surgery with lifting and irritation due to clothing. He has joint pathology of both shoulders which is likely due to direct trauma and not due to the scars from his simple mastectomies. The examiner stated that it is not likely that his radiating pain from his shoulder to area of his gynecomastia surgery caused his problems with tendinopathy of the shoulders and not likely to add to the pathological changes noted in his shoulders to aggravate these conditions. The Board affords great probative value to the June 2022 VA examiner's medical opinion because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that the Veteran has joint pathology of both shoulders which is likely due to direct trauma and not due to the scars from his simple mastectomies. Further, the Board notes that in the June 2022 breast and scar examinations the Veteran endorsed having "pain in chest at scars" instead of his shoulders and arms. As the Veteran is already compensated for his painful scars and as the examiner explained that the Veteran's shoulder/arm disability is distinct and separate from the pain from his scars, the Board finds that his residuals of status post gynecomastia surgery did not proximately cause or aggravate his shoulder/arm disability. While the Veteran is competent to report his symptoms of pain, he is not competent to determine that his residuals of status post gynecomastia surgery caused or aggravated his shoulder/arm disability. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. In conclusion, although the Veteran has established a current disability, the competent, probative evidence does not establish that there is a link to his military service or that the Veteran's service-connected residuals of status post gynecomastia surgery caused or aggravated his shoulder/arm disability. Since the probative evidence persuasively weighs against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. The Veteran's gynecomastia has been evaluated as noncompensable under Diagnostic Code 7626 which pertains to surgery of the breast. Diagnostic Code 7626 provides a noncompensable (zero percent) rating is warranted following wide local excision without significant alteration or size or form of both or one breast. A 30 percent rating is warranted following a simple mastectomy or wide local excision with significant alteration of size or form of one breast, and a 50 percent rating is warranted following a simple mastectomy or wide local excision with significant alteration of size or form of both breasts. A 40 percent rating is warranted following modified radical mastectomy of one breast, and a 60 percent rating is warranted following modified radical mastectomy of both breasts. A 50 percent rating is warranted following a radical mastectomy of one breast, and a maximum, 80 percent rating is warranted for radical mastectomy of both breasts. 38 C.F.R. § 4.116. The Board observes that the phrase "significant alteration of size or form" is not defined in the VA Schedule for Rating Disabilities. Therefore, in assessing whether the Veteran's disability meets these criteria, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Note 1 states that a radical mastectomy means removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament. Note 2 states that a modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast) but the pectoral muscles are left intact. Note 3 states that a simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but the lymph nodes and muscles are left intact. Note 4 states that a wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. 38 C.F.R. § 4.116, Diagnostic Code 7626. Diagnostic Code 7626 also mandates that consideration should be made as to whether a veteran is entitled to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350. SMC is payable, in the case of a female veteran, 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). 38 C.F.R. § 3.350 (a). Thus, as the aforementioned statute authorizes this SMC benefit only for female veterans, the VA has no legal authority to award SMC to male veterans based upon the anatomical loss of a breast or breast tissue. 2. Entitlement to an initial 50 percent rating for service-connected residuals of status post gynecomastia surgery is granted. As an initial matter, the Veteran filed a petition to reopen his claim for entitlement to service connection for gynecomastia. In a November 2018 rating decision, service connection was granted with a noncompensable rating effective July 20, 2018. A review of the service treatment records (STRs) shows that in March 1954 he underwent a simple mastectomy. See July 1956 STR Medical. A specimen was taken for his gynecomastia of the bilateral breast. Specimen A consisted of a circular mass measuring 7 centimeter in diameter and 1.5 cm. in thickness. Specimen B consisted of a mass very similar in appearance to A. It measured 8.5 cm. in diameter and 1.6 cm. in thickness. A review of the records shows that his medical records are sparse. However, he was afforded a Disability Benefits Questionnaire (DBQ) in October 2018, November 2018, and June 2022. In the October 2018 Muscle Injuries DBQ, the Veteran reported that when he lifts something heavy, he feels pain in his breast. On examination, he exhibited a surgical scar of 8 cm. by 0.4 cm. on the right breast and 7.5 cm. by 0.2 cm. on the left breast. He endorsed having fatigue-pain. In the October 2018 Scars/Disfigurement DBQ, the examiner noted that he has linear scar of the bilateral breast. There were no scars without underlying tissue damage. Instead, he had a scar with underlying tissue damage on the anterior trunk with an approximate total area of 4.7 square cm. In the November 2018 Breast Conditions and Disorders DBQ, the Veteran stated that he has tenderness to touch on his chest area. The examiner noted that he has a wide local excision without significant alteration of size on the bilateral breast. On examination, there were no pain or unstable scars. He had a scar on his right breast measuring 7.5 cm. by 0.2 cm. In the November 2018 Scars/Disfigurement DBQ, he had no painful or unstable scars. On examination, he had a surgical scar of 7.5 cm. by 0.2 cm. on the right breast and 5 cm. by 0.2 cm. on the left breast. He had scars without underlying tissue damage on the anterior trunk with an approximate total area of 1.6 square cm. There was no scar with underlying tissue damage. In June 2022, the Board remanded the issue on appeal as the November 2018 examiner determined that the Veteran has a wide local excision without significant alteration of size on the bilateral breast. However, based on the size of the excision it was unclear how the examiner determined that there was no significant alteration of size on the bilateral breast. As such, the Board remanded the issue for further evidentiary development. Pursuant to the June 2022 Board remand, the Veteran was afforded a new VA examination. In the June 2022 Scars/Disfigurement DBQ, the examiner noted that the Veteran had a surgical scar of 8 cm by 0.4 cm on the right breast and 7.5 cm by 0.2 cm on the left breast. He had scars without underlying tissue damage on the anterior trunk with an approximate total area of 4.7 cm square. There was no scar with underlying tissue damage. In the June 2022 Breast Conditions and Disorders DBQ, the examiner was asked to state whether the Veteran has undergone a wide local excision with significant alteration of size or form of one or both breasts. The examiner responded that breast tissue was removed, and his chest wall is flat as he underwent gynecomastia. The examiner was also asked whether the size of the excision is an indicator on whether there was a significant alteration of size or form of one or both breasts. The examiner responded that the scars are 8.5 cm and 7.5 cm. Based on the forgoing, in the light most favorable to the Veteran, the Board finds that a 50 percent rating is warranted as he had a wide local excision with significant alteration of size or form of both breasts. He is not entitled to a higher rating of 60 percent rating as he did not undergo a modified radical mastectomy of both breasts, or an 80 percent rating as he did not undergo a radical mastectomy of both breasts. Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.