Case A26038595

Summary

The veteran, who served in the United States Navy from September 1997 to September 2011, appeals the denial of service connection for a left breast condition and a compensable rating for scars from right breast surgery. The veteran had previously filed a claim for bilateral breast conditions, which was denied in May 2012. In October 2020, the veteran submitted a supplemental claim for service connection for a left breast condition, citing bilateral ductectomy with scars, tingling, and pain. However, the evidence submitted in the supplemental claim, including a statement and a December 2020 VA examination, focused solely on the veteran's right breast condition and surgeries. The Board found this evidence not relevant to the left breast claim, as it did not pertain to the left breast. The Board noted that the veteran's service treatment records, which did mention bilateral nipple discharge and were relevant, were already of record at the time of the May 2012 decision and thus not new evidence. Consequently, the Board denied the left breast claim for failure to present new and relevant evidence. For the right breast scars, the veteran sought a compensable rating. The Board reviewed the December 2020 VA examinations, which described the right breast surgeries as wide local excisions without significant alteration of form or size. The scars measured a total of 2.25 sq. cm. The Board found this insufficient for a compensable rating under DC 7802 (10% for 144 sq. cm. or greater) and noted the scars were neither painful nor unstable, precluding application of other relevant diagnostic codes. The Board denied the claim for a compensable rating for the right breast scars.

Rationale

Evidence submitted in supplemental claim focused on right breast, not left.; Evidence was not relevant to the left breast condition claim.; Service treatment records addressing bilateral nipple discharge were not new evidence.

Full Decision Text

Citation Nr: A26038595
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 210215-139690
DATE: April 24, 2026

ORDER

Entitlement to service connection for left breast condition (claimed as bilateral breasts, ductectomy with scars, tingling, and pain) is denied.

Entitlement to a compensable initial rating for service connection for scars, status post right breast surgery (claimed as bilateral breasts, ductectomy with scars, tingling, and pain) is denied.

FINDINGS OF FACT

1. New and relevant evidence has not been received sufficient to readjudicate the claim of entitlement to service connection for a left breast condition (claimed as bilateral breasts, ductectomy with scars, tingling, and pain).

2. The Veteran's anterior trunk scars do not cover an area or areas of 144 square inches or greater. 

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim of service connection for a left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain) have not been met. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501.

2. The criteria for a compensable initial rating for service connection for scars, status post right breast surgery (claimed as bilateral breast ductectomy with scars, tingling, and pain) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, 4.118, Diagnostic Codes 7626, 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Navy from September 1997 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On April 17, 2024, the Veteran withdrew the hearing request. 

Therefore, the Board may only consider the evidence of record at the time of the December 21, 2020, rating decision on appeal, as well as any evidence submitted by the Veteran within 90 days following the April 17, 2024, letter withdrawing the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to service connection for left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain)

The Veteran contends that she is entitled to service connection for a left breast condition, claimed as bilateral breast ductectomy with scars, tingling and pain. See February 2021 VA Form 10182. 

Legal Criteria

If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. New evidence means existing evidence not previously submitted to agency decisionmakers. Relevant evidence means evidence that tends to prove or disprove a matter in issue. If new and relevant evidence is not presented or secured, the Secretary will issue a decision finding that there was insufficient evidence to readjudicate the claim 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.2501. 

Analysis

In a May 2012 rating decision, the AOJ denied the Veteran's claim for service connection for bilateral breast ductectomy with scars, tingling and pain. 

In October 2020, the Veteran submitted a supplemental claim for service connection for bilateral breast ductectomy with scars, tingling and
 New evidence means existing evidence not previously submitted to agency decisionmakers. Relevant evidence means evidence that tends to prove or disprove a matter in issue. If new and relevant evidence is not presented or secured, the Secretary will issue a decision finding that there was insufficient evidence to readjudicate the claim 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.2501. 

Analysis

In a May 2012 rating decision, the AOJ denied the Veteran's claim for service connection for bilateral breast ductectomy with scars, tingling and pain. 

In October 2020, the Veteran submitted a supplemental claim for service connection for bilateral breast ductectomy with scars, tingling and pain. 

In an October 2020 statement submitted together with her supplemental claim, the Veteran recounted her 2008 surgery on her right breast. She reported experiencing a similar incident several years later in 2014. She reported having two more surgeries on the same breast since. She reported she experienced painful infections and cysts oozing a greenish/yellowish smelly substance. She reported having a large fleshy bump on the side of her nipple. She reported having sharp pains that shot through the nipple often.

In the December 2020 rating decision, the AOJ denied the Veteran's service connection claim for left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain). The AOJ stated that the evidence submitted by the Veteran was not relevant as it did not prove or disprove a matter at issue within the Veteran's claim. The AOJ granted service connection for scars, status post right breast surgery. 

As noted above, if the Secretary finds that new and relevant evidence has been submitted in connection with a supplemental claim, the AOJ will readjudicate the claim. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.2501. 

In this case, the Board agrees with the AOJ's determination that the Veteran's evidence was not relevant. 

In her October 2020 statement, the Veteran only provided information concerning her right breast. At a December 2020 VA breast conditions examination, the Veteran's statements concerned solely her right breast. Likewise, the December 2020 VA examiner only diagnosed the Veteran with a right breast condition (status post right breast surgery). A December 2020 VA scars examination also only involved the right breast.

Neither the Veteran nor the Veteran's attorney submitted any additional argument or evidence related to the Veteran's claimed left breast condition in connection with the October 2020 supplemental claim.

VA treatment records added to the claims file since the May 2012 rating decision address the Veteran's right breast condition but do not evidence complaints of or treatment for a left breast condition related to a ductectomy with scars, tingling and/or pain. See, e.g., June 2019 VA Women's Health Consult (Veteran not aware of any masses in breast or any nipple discharge; no discharge on exam; mammogram showed right breast mass); August 2017 VA Women's Health Note (4 months post-surgery complaint of right breast redness, swelling and pain in nipple, currently no evidence of infection in area but discoloration consistent with resolved infection). 

Thus, while new, the evidence added to the claims file since the May 2012 rating decision is not relevant to the Veteran's left breast condition claim. 

The Veteran's service treatment records (STRs), which include complaints of bilateral nipple discharge, were of record at the time of the May 2012 rating decision. See, e.g., July 2006 STR (complaining of thick whitish discharge from both nipples for 3 years, no mass, no galactorrhea, scabs on and off at the right nipple); January 2008 STR (concerning longstanding bilateral nipple discharge milky in nature, noting development of bloody discharge on right one year ago, no palpable masses or pain, often expresses white discharge followed by frank blood, mammograms and ultrasounds normal). A September 2011 VA examination was also of record at the time of the May 2012 rating decision. In other words, these records, while relevant, are not new. 

Based on this record, the Board finds that no new and relevant evidence has been received sufficient to readjudicate the Veteran's claim for a left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain). 

The Board notes that the Veteran may, at any time, file another supplemental claim with the AOJ after receiving this decision and any additional evidence will be considered in connection with the new supplemental claim. 
 no palpable masses or pain, often expresses white discharge followed by frank blood, mammograms and ultrasounds normal). A September 2011 VA examination was also of record at the time of the May 2012 rating decision. In other words, these records, while relevant, are not new. 

Based on this record, the Board finds that no new and relevant evidence has been received sufficient to readjudicate the Veteran's claim for a left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain). 

The Board notes that the Veteran may, at any time, file another supplemental claim with the AOJ after receiving this decision and any additional evidence will be considered in connection with the new supplemental claim. 38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108; 38 C.F.R. §§ 3.2501, 20.1105(a). If filed within one year, this supplemental claim will preserve the date of the claim denied herein as the effective date of the grant of the benefit sought. 38 U.S.C. § 5110(2)(B); 38 C.F.R. § 3.2500(h).

For the foregoing reasons, as there is no new and relevant evidence since the prior May 2012 denial, the Board cannot readjudicate the claim of service connection for left breast condition (claimed as bilateral breast ductectomy with scars, tingling, and pain). As the Veteran has not identified or presented any new and relevant evidence pertaining to the claim, readjudication is not warranted. 38 U.S.C. §§ 101, 5108; 38 C.F.R. § 3.2501.

2. Entitlement to a compensable initial rating for service connection for scars, status post right breast surgery (claimed as bilateral breast ductectomy with scars, tingling, and pain)

The Veteran is currently in receipt of a noncompensable rating for scars, status post right breast surgery under DC 7631-7802. See December 2020 rating decision. The Veteran contends that she is entitled to a compensable initial rating. See February 2021 VA Form 10182.  

Legal Criteria

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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board has reviewed all the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000).

Hyphenated Diagnostic Codes are used when
 nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board has reviewed all the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000).

Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. The additional Diagnostic Code that is the basis for the rating is shown after the hyphen.

The Veteran's scars, status post right breast surgery disability is rated under 38 C.F.R. § 4.116, DC 7626 and 38 C.F.R. § 4.118, DC 7802. 

38 C.F.R. § 4.116, DC 7631, benign neoplasms of the breast and other injuries of the breast, states as follows: "[r]ate chronic residuals according to impairment of function due to scars, lymphedema, or disfigurement (e.g., limitation of arm, shoulder, and wrist motion, or loss of grip strength, or loss of sensation, or residuals from harvesting of muscles for reconstructive purposes), and/or under diagnostic code 7626." DC 7626, breast, surgery of, in turn provides for the following: an 80 percent rating following a radical mastectomy of both breasts and a 50 percent rating following a radical mastectomy of one breast; a 60 percent rating following modified radical mastectomy of both breasts and a 40 percent rating following modified radical mastectomy of one breast; a 50 percent rating following simple mastectomy or wide local excision with significant alteration of size or form of both breasts, and a 30 percent rating following simple mastectomy or wide local excision with significant alteration of size or form of one breast; and a 0 percent rating following wide local excision without significant alteration of size or form for both or one breast. A note to DC 7626 provides that for VA purposes (1) Radical mastectomy means removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament; (2) Modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast). Pectoral muscles are left intact; (3) Simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but lymph nodes and muscles are left intact; and (4) Wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue.

38 C.F.R. § 4.118, DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage provides for a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. Note 1 to DC 8702 provides that for the purposes of DCs 7801 and 7802, the six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note 2 provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.

Analysis

As noted above, the Veteran submitted a statement in October 2020 together with her supplemental claim in which she recounted her 2008 surgery on her right breast. She reported experiencing a similar incident several years later in 2014. She reported having two more surgeries on the same breast since. She reported she experienced painful infections and cysts oozing a greenish/yellowish smelly substance. She reported having a large fleshy bump on the side of her nipple. She reported having sharp pains that shot through the nipple often.

In a December 2020 VA breast conditions examination, the Veteran reported that her breast condition began in 2008 after having a tumor
 a single evaluation may also be assigned under this diagnostic code.

Analysis

As noted above, the Veteran submitted a statement in October 2020 together with her supplemental claim in which she recounted her 2008 surgery on her right breast. She reported experiencing a similar incident several years later in 2014. She reported having two more surgeries on the same breast since. She reported she experienced painful infections and cysts oozing a greenish/yellowish smelly substance. She reported having a large fleshy bump on the side of her nipple. She reported having sharp pains that shot through the nipple often.

In a December 2020 VA breast conditions examination, the Veteran reported that her breast condition began in 2008 after having a tumor removed and then a cyst removed in 2017. Symptoms at the time of onset included scarring. The Veteran reported that the condition had stayed the same and that she did not receive any treatment or take any medication for the condition. The examiner indicated a history of benign neoplasm of the right breast and related surgeries in 2008 and 2017 described as ductectomy and cyst removal. The examiner characterized the surgeries as wide local excision without significant alteration of form or size. The examiner diagnosed the Veteran's condition as status post (s/p) right breast surgery. The examiner indicated the residuals of the Veteran's surgeries as "TTP right breast and scars." 

In December 2020, the Veteran was also afforded a VA scars examination. The Veteran reported that her scar condition began in 2008 after having a tumor removed and then a cyst removed in 2017. Symptoms at the time of onset included scarring. The Veteran reported that the condition had stayed the same and that she did not receive any treatment or take any medication for the condition. The examiner identified two scars on the Veteran's anterior trunk, scar #1 measuring 4 cm x .5 cm and scar #2 measuring .5 cm x .5 cm. The examiner noted the approximate total area of the anterior trunk scars as 2.25 cm2. The examiner indicated that the scars were neither painful nor unstable. The examiner indicated that the scars were not associated with underlying soft tissue damage. The examiner indicated that the Veteran's scars did not result in limitation of function and did not impact the Veteran's ability to work. 

Based on the above, the Board finds that the record evidence in this case persuasively weighs against a compensable rating for scars, status post right breast surgery. DC 7631, benign neoplasms of the breast and other injuries of the breast, directs adjudicators to rate chronic residuals according to functional impairment due to scars, lymphedema, or disfigurement and/or under DC 7626. The Veteran is not entitled to a compensable rating under DC 7626, as the Veteran did not experience significant alteration of size or form of her right breast following wide local excision. See December 2020 VA breast examination (characterizing Veteran's surgeries as wide local excision without significant alteration of form or size). Further, the record does not show that the Veteran has experienced lymphedema or disfigurement in connection with her status post right breast surgery. The Veteran's disability is thus properly rated under DC 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 

Under DC 7802, a 10 percent rating is warranted for scar(s) with an area or areas of 144 square inches (929 sq. cm) or greater. At the December 2020 VA examination, the examiner identified two scars on the Veteran's anterior trunk, scar #1 measuring 4 cm x .5 cm and scar #2 measuring .5 cm x .5 cm. The examiner noted the approximate total area of the anterior trunk scars as 2.25 sq. cm. Given this total area, the Veteran's scars do not warrant a 10 percent rating under DC 7802.

The Board notes that, in her October 2020 statement, the Veteran reported painful infections and sharp pains that shot through her nipple. In her October 2020 supplemental claim, the Veteran also characterized her claim as bilateral breast ductectomy with scars, tingling, and pain. The Veteran is competent to report her symptoms. However, the Veteran's own statements do not identify her scars as the source of pain and tingling or otherwise attribute pain or instability to her scars. As set forth above, VA regulations, to include DCs 7626 and 7631, establish the DCs governing scars as the appropriate diagnostic codes for rating the Veteran's disability. At the December 2020 VA scars examination, the examiner indicated that the Veteran's scars were neither painful nor unstable. The examiner also indicated that the Veteran's scars did not result in limitation of function and did not impact the
 her October 2020 supplemental claim, the Veteran also characterized her claim as bilateral breast ductectomy with scars, tingling, and pain. The Veteran is competent to report her symptoms. However, the Veteran's own statements do not identify her scars as the source of pain and tingling or otherwise attribute pain or instability to her scars. As set forth above, VA regulations, to include DCs 7626 and 7631, establish the DCs governing scars as the appropriate diagnostic codes for rating the Veteran's disability. At the December 2020 VA scars examination, the examiner indicated that the Veteran's scars were neither painful nor unstable. The examiner also indicated that the Veteran's scars did not result in limitation of function and did not impact the Veteran's ability to work. The December 2020 VA examiner considered the Veteran's medical history, examinations, and statements and described the Veteran's disability in sufficient detail to permit the Board to make a decision in the instant proceeding. Stefl v. Nicholson, 21Vet.App. 120, 123 (2007). Based on the December 2020 VA examiner's findings and the Veteran's statements, DC 7804 is not applicable here as the Veteran's scars are neither painful nor unstable. 

As such, the Board concludes that DC 7802 remains the relevant diagnostic code, and based on the record, the Veteran's claim for a compensable rating for scars, status post right breast surgery, must be denied. 

 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.B.

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.