Citation Nr: 1608349 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 13-06 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability following a recurrence of breast cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2015. A transcript of the hearing is of record. FINDINGS OF FACT 1. VA physicians committed an error in judgment in failing to offer adjuvant hormonal therapy to the Veteran following her bilateral mastectomy. 2. The failure to treat her with adjuvant hormonal therapy resulted in a preventable recurrence of breast cancer in September 2010. 3. The recurrence of breast cancer resulted in repeat surgery with chest wall radiotherapy, with additional disability of limited mobility, chronic pain, and disfigurement of the chest wall and skin of the chest. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability following a recurrence of breast cancer are met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Legal Criteria When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151. In determining whether additional disability exists, VA compares the veteran's physical condition immediately prior to the surgery upon which the claim for benefits is based with the physical condition after the medical treatment. 38 C.F.R. § 3.361(b). II. Facts The Veteran has presented several arguments in support of her claim that she has additional disability as a result of negligence or error in judgment on the part of VA medical personnel; however, her primary argument is that VA's failure to offer her adjuvant hormonal therapy following her bilateral mastectomies was an error in judgment that proximately caused her cancer recurrence in September 2010, and that the treatment for the recurrence of cancer caused additional disabilities. The Veteran was diagnosed with ductal carcinoma in situ (DCIS), a form of breast cancer, in May 2006, following a biopsy of the suspicious lesion by a VA hematology/oncology team. The pathology report does not show that the lesion was tested for estrogen and progesterone receptors, which would have indicated whether the patient was a candidate for adjuvant hormonal therapy following surgical removal of the malignancy. The Veteran underwent bilateral mastectomies in August 2006. In November 2006 and in October 2007, VA physicians advised the Veteran that her final pathology report showed no invasive component to her cancer; in other words, her cancer was contained entirely to the ducts of the breasts and had not spread to other structures. The Veteran was also advised that although she had two close female relatives with breast cancer, genetic testing of all three individuals was negative for the presence of a genetic component. Finally, her bilateral mastectomies had reduced her risk of breast cancer recurrence to just 1 to 2 percent. As a result, no further treatment was planned, and that she was "likely cured." The October 2007 report specifically states that there was no need for adjuvant hormonal therapy in light of these factors. VA physicians did not counsel the Veteran on the risks and benefits of adjuvant hormonal therapy or allow her to choose whether or not she would like to proceed with such treatment. In September 2010, the Veteran returned for evaluation of a nodule in the remaining right breast tissue. She underwent a biopsy in December 2010; a January 2011 pathology report showed 1.5mm of invasive cancer. According to a March 2011 private treatment note, the Veteran underwent surgery to remove all of the remaining breast tissue as well as surrounding lymph nodes. She was also prescribed radiation therapy to the right chest wall. The private hematologist/oncologist noted that she was unsure of whether the Veteran should undergo adjuvant treatment with Tamoxifen, because her estrogen and progesterone receptors had never been checked; without a disease that was positive for estrogen receptors, she was not a candidate for systemic therapy. Her slides were sent to an outside hospital, which tested the original May 2006 biopsy and found positive estrogen receptor status. The Veteran subsequently underwent a five-year course of treatment with Tamoxifen. A May 2012 opinion by a VA medical professional was essentially identical to the conclusions reached by the Veteran's physicians in November 2006 and October 2007. The examiner concluded that the standard treatment for DCIS is surgical removal of the malignancy, and chemotherapy following surgery is not clinically indicated. The examiner also pointed out that recurrence of DCIS following bilateral mastectomies is very uncommon. Another opinion was received from a VA hematologist/oncologist, Dr. T.C., in May 2013. Dr. C. conducted a thorough review of the evidence of record before rendering an opinion. Dr. C. found that VA's failure to test the Veteran's tumor for hormone receptor status in 2006 was not inappropriate, since the tumor was likely too small to yield any information and because DCIS was known for causing false positives on hormone receptor testing. In addition, she noted, such testing was not accomplished as a matter of course at that time, although adjuvant hormonal therapy after a diagnosis of DCIS is standard medical practice today. Dr. C. also concluded that VA medical personnel were not negligent or guilty of an error of judgment by not offering the Veteran adjuvant hormonal therapy. She noted that although Tamoxifen is currently prescribed after DCIS as a matter of course, it was not the case in 2006, when Tamoxifen was newly approved for treatment of certain kinds of breast cancer. Additionally, since the Veteran had undergone bilateral mastectomies, the risks of side effects such as uterine cancer were far greater than the risk of recurrence of breast cancer, since mastectomy was widely believed to be curative in cases of DCIS. She indicated that it was unlikely that the Veteran would have chosen this course had she been given the option, seeing that she was pre-menopausal at the time, had little to no breast tissue left, and because the side effects of treatment with Tamoxifen can be quite significant. She concluded by stating that "there was not a single step in this woman's course that would have been altered by earlier diagnoses or ... by treating earlier with Tamoxifen." Dr. D.M., a specialist in oncology at VCU Massey Cancer Center, provided a detailed medical opinion in March 2015. Dr. M. found that the Veteran's breast cancer recurrence may have been prevented by treatment with Tamoxifen following her diagnosis in 2006, had VA physicians provided the Veteran with this option. Her subsequent relapse resulted in the need for a second surgery and chest wall radiotherapy that left her disfigured. Dr. M. further found that the failure to offer the Veteran adjuvant hormone therapy was an "obvious 'error in judgment.'" There was no indication that the Veteran's VA treatment providers discussed with the Veteran the benefits of such therapy, nor were there efforts to determine the tumor's estrogen receptor status, which would have better informed the Veteran's treating physicians as to the need for such therapy. In Dr. M.'s view, Tamoxifen "could have very well prevented and/or delayed the need for additional disfiguring surgery and chest wall radiotherapy and should've at least been reviewed." Dr. M. disagreed with Dr. T.C.'s conclusion that the Veteran likely would have turned down such therapy in 2006. He noted that the Veteran was "clearly very concerned about her risks, given her family history" and that "[m]any of her decisions [with respect to her treatment plan] represented common behaviors in breast cancer patients who are willing to accept side-effects of any proven treatments, even when minimal, to maximize their changes of reducing the risk of a relapse. This mindset is best exemplified by her decision to pursue an elective bilateral mastectomy in 2006." Dr. M. also found that the staging of the Veteran's cancer was incorrect, and did not account for a finding of an invasive component on an August 2006 pathology report. Finally, Dr. M. disagreed with the portions of the VA opinions which indicated that it was not possible to test the fragment of tumor from 2006 for hormone receptor status, since "it became clear several years later that if the VA oncologist wanted to perform these stains, it would have been possible." Dr. M. clarified the Veteran's additional disability in a September 2015 letter. He indicated that the September 2010 recurrence resulted in residuals of surgery and chest wall radiotherapy such as hyperpigmentation of the skin, chronic pain in the area of the right breast, and limitation of motion of the upper back muscles as a result of chest wall scarring. He also pointed out that radiotherapy to the chest wall places the Veteran at greater risk for rib fracture, lung injury, arm edema, and radiation-induced lung cancer or sarcoma. III. Analysis A threshold questions in such claims is whether the Veteran has an additional disability as a result of VA treatment. The Veteran has provided detailed lay evidence of her disfigurement, which were corroborated by the medical records and described in detail by Dr. M. in his September 2015 letter. The Board thus finds that the Veteran has additional disability, including hyperpigmentation of the skin, chronic pain in the area of the right breast, and limitation of motion of the upper back muscles as a result of chest wall scarring, as a result of her September 2010 recurrence of breast cancer. On the question of whether the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, there is evidence both for and against the claim. Each of the medical professionals who have offered an opinion in this matter have carefully reviewed the record and offered opinions that are supported by cogent rationale, based on their professional judgment and knowledge of the standards of care for patients such as the Veteran. Although the conclusions of Dr. C. and Dr. M. as to whether or not the Veteran would have opted for adjuvant hormonal therapy are speculative in nature, this does not significantly diminish the probative value of either opinion. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran has additional disability that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical and surgical treatment to the Veteran. Under such circumstances, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Therefore, compensation under 38 U.S.C.A. § 1151 for additional disability following treatment for a recurrence of breast cancer is warranted. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability, defined as hyperpigmentation of the skin, chronic pain in the area of the right breast, and limitation of motion of the upper back muscles as a result of chest wall scarring following a recurrence of breast cancer, is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs