Citation Nr: 18132317
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-05 789
DATE:	September 6, 2018
ORDER
Entitlement to a compensable evaluation for deep scar tissue, status post gynecomastia of the right breast is denied.
Entitlement to a compensable evaluation for superficial scar tissue, status post gynecomastia right breast is denied.
FINDINGS OF FACT
1. The Veteran’s deep scar tissue, status post gynecomastia of the right breast measured 5.6 square inches (36.0 squared centimeters) and was deep and nonlinear, was stable, and manifested without pain.
2. The Veteran’s superficial scar tissue, status post gynecomastia right breast measured 1.2 square inches (7.5 square centimeters) and was superficial and nonlinear, was stable, and manifested without pain.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a compensable evaluation for deep scar tissue, status post gynecomastia of the right breast have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 4.118, DC 7801.
2. The criteria for entitlement to a compensable evaluation for superficial scar tissue, status post gynecomastia right breast have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 4.118, DC 7802.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1969 to April 1970 in the United States Marine Corps.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA).
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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Additionally, a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
1. Entitlement to a compensable evaluation for deep scar tissue, status post gynecomastia of the right breast.
2. Entitlement to a compensable evaluation for superficial scar tissue, status post gynecomastia right breast.
The Veteran is currently assigned a noncompensable rating for his right breast scars under both diagnostic codes 38 C.F.R. §4.118, DC 7801 (deep scars) and §4.118, DC 7802 (superficial scars).
Under DC 7801, burn scars or scars due to other causes not of the head, face, or neck, are evaluated when these scars are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters) but less than12 square inches (77 sq. centimeters) warrant a 10 percent evaluation. (Note (1) provides that a deep scar is one associated with underlying soft tissue damage). Pursuant to DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear, in an area or areas of 144 square inches (929 square centimeters) or greater, warrant a 10 percent rating. (Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage).
Code 7804 is used when with painful or unstable scars and assigns a 10 percent rating for five or more scars that are unstable or painful, three or four scars that are unstable or one or two scars that are unstable or painful warrant a 10 percent. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, regulations instruct the rater to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804.
In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. §4.31.
The Veteran appealed the June 2014 rating decision which granted him service connection with a noncompensable evaluation for his right breast scars. The Veteran was assigned a noncompensable evaluation under DC’s 7801 for a deep scar and under 7802 for a superficial scar.
In his June 2014 Notice of Disagreement, he endorsed that “All VA is looking at is the scar not on my head, face, or neck and how big it is and not painful or unstable. I want the VA to look at why or what caused the scar to be there in the first place.”

The Board acknowledges that the scars are in fact service-connected.  That means VA recognizes that they were caused by his active military service.  The Veteran’s history revealed that during his service in Vietnam, he developed a lump in the right breast in 1970. It came on suddenly and was observed during deployment. When he returned to the United States he was operated on at Camp Lejeune hospital with mastectomy for gynecomastia. No residuals and pathology was found and the mass was apparently benign. The Board notes that it cannot offer a reason for “how or why” the Veteran’s mass developed. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). 
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The Board finds, however, that the rating for the scars is proper and that a compensable evaluation is not warranted.   The VA examiner in June 2014 confirmed a diagnosis of gynecomastia scar of the right breast. The dimensions of the right breast scar measured 5.6 square inches (36.0 squared centimeters) and was deep and nonlinear. The dimensions of the right breast scar measured 1.2 square inches (7.5 square centimeters) and was superficial and nonlinear. The scars were neither painful nor unstable. A higher evaluation is not warranted because the Veteran’s right breast deep scar was less than 39 square centimeters, his right breast superficial scar was less than 929 square centimeters, and both scars were to be stable and manifested without pain. There is no other probative evidence to the contrary, and, thus the Board must deny the claim for a higher rating.
 
MATTHEW TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. A. Macek, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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