Citation Nr: 0814451 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-08 265 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for fibrocystic breast disease. 2. Entitlement to service connection for status-post simple bilateral mastectomies, claimed as secondary to fibrocystic breast disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant & Appellant's Spouse ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1973 to June 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from September and December 2004 rating decisions of the Philadelphia RO. In January 2006, a Travel Board hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in November 2006 when it was referred to the Veterans Health Administration (VHA) for an advisory medical opinion. In April 2007, the Board remanded the case for RO initial consideration of evidence received without a waiver of RO review. FINDINGS OF FACT 1. The appellant has fibrocystic breast disease that was first manifested in service. 2. Bilateral simple prophylactic mastectomies are not shown to be proximately due to or the result of fibrocystic breast disease. CONCLUSIONS OF LAW 1. Service connection for fibrocystic breast disease is warranted. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2007). 2. Secondary service connection for status-post simple bilateral mastectomies is not warranted. 38 U.S.C.A. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the issue of service connection for fibrocystic breast disease, inasmuch as the determination below constitutes a full grant of the claim, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice content or timing is harmless. Regarding the issue of service connection for status-post simple bilateral mastectomies, the veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of her claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An October 2004 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, the evidence she was responsible for providing, and advised her to submit any evidence or provide any information she had regarding her claim. The Board notes that this letter did not specifically notify her of the elements required to establish secondary service connection for status-post bilateral mastectomies. While this notice error is presumed prejudicial, the Board finds that it did not affect the essential fairness of the adjudication because the record shows the veteran had actual knowledge of these requirements. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); see Vazquez-Flores, 22 Vet. App. 37, 48-49 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007))). As will be specifically laid out in the facts and analysis below, during testimony at the January 2006 hearing and in statements and evidence submitted throughout the appeal period, the veteran has demonstrated actual knowledge of the need to show a relationship between fibrocystic breast disease and bilateral mastectomies. Hence, she was not prejudiced in that she did not receive this notice. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), an April 2007 letter informed the veteran of disability rating and effective date criteria. The veteran's service medical records (SMRs) and pertinent treatment records have been secured. The Board obtained an advisory opinion from a VHA specialist in January 2007. The veteran has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claims. B. Factual Background Fibrocystic breast disease was not noted on service enlistment examination in November 1971. SMRs show the veteran was first diagnosed with a cystic breast in September 1980. September 1981 records show she complained of pain and tingling in her right breast and had a lump in her left breast; it was noted she had a history of fibrocystic breast disease, and she was told to stay away from products containing caffeine. The assessment was fibrocystic breast disease. A January 1989 mammogram revealed bilaterally dense breasts with no secondary signs of carcinoma; it was noted the efficacy of mammography in dense breasts is reduced. Mammograms in 1992 through 1996 showed moderately fibrocystic breasts that were stable with no radiographic evidence for malignancy. Private treatment records from Dr. B. W. during this time period reveal the veteran was experiencing tenderness and pain in her left breast and cystic changes on physical examination. A January 1998 mammogram revealed a mass in the left breast and indistinct calcifications of the left breast that were noted to be suspicious abnormalities; a biopsy was recommended. February 1998 biopsy of a lump in the left breast revealed periductal mastitis with duct ectasia and mild fibrocystic changes. A December 1998 mammogram revealed round calcifications of the left breast; it was noted they were probably a benign finding, but follow up was suggested. May 2000 results of a needle biopsy indicate no malignant cells; cellular features were consistent with fibroadenoma. An August 2000 mammogram revealed a .6 by 1 centimeter solid mass in the left breast. A September 2000 biopsy of the left breast mass showed proliferative fibrocystic changes with mild epithelial atypia and atypical lobular hyperplasia. A September 2000 private treatment record from Dr. B. W. indicates the veteran had experienced blood clots in the past; thus, she had no interest in taking Tamoxifen. March 2002 private treatment records note that Dr. B. W. had no "biochemical means to reduce her risk of breast cancer" since the veteran could not take Tamoxifen. He informed her that mastectomies would only reduce her chances of getting breast cancer by 90 percent. A September 2003 MRI of the left breast revealed a 1 centimeter mass, presumably solid, in the subareolar region of the left breast. An October 2003 ultrasound of the left breast revealed dilated peri-areolar ducts without discrete solid nodule. An October 2003 letter from Dr. B. W. states that the veteran had decided to undergo prophylactic mastectomies. He noted that her parents died of colon cancer and that her aunt had breast cancer. A December 2003 Aetna health insurance document precertifies coverage for the left simple mastectomy, finding that the procedure is medically necessary. A February 2004 operative report reveals the veteran underwent bilateral simple prophylactic mastectomies. The report indicates the veteran was status-post a left breast biopsy showing "atypia, i.e., premalignant cells." It was noted she had a family history of breast cancer and a recent MRI revealed a solid mass in the left breast. After discussing her options with her doctors and her family, she had decided to have the mastectomies to reduce her chances of getting breast cancer. Biopsy results for the left breast revealed numerous cysts and ectatic ducts with apocrine metaplasia and focal atypical ductal epithelial hyperplasia; there was no carcinoma identified. Biopsy results for the right breast revealed benign fibrotic breast tissue with cysts and ectatic ducts with no identified carcinoma and a benign right intramammary lymph node. In statements submitted throughout the appeal and at the January 2006 hearing, the veteran has stated that she had fibrocystic breast disease diagnosed in service. At that time, she was advised to not drink caffeine or coffee, but further testing was not completed. She states that her fibrocystic changes progressed to atypia. She indicated that she found examples of many other ROs who had granted service connection for fibrocystic breast disease and she cited and added to the record a GAO study indicating the need for consistency in RO decisions around the country. At the hearing, she and her husband testified that the mastectomies were disfiguring. She also stated that she was a nurse and that she was aware of much literature on the subject and that her fibrocystic breast disease became proliferative and potentially cancerous, which is why she elected to have bilateral mastectomies. VBA Fast Letter 99-115 states that fibrocystic breast disease "is not a pathologic condition, but a physiologic (or normal or nonpathologic) finding, occurring in about two-thirds of women." In January 2007, a VHA physician reviewed the veteran's claims file, studied current medical literature, including the New England Journal of Medicine, Up-to-Date, and Pub Med as well as internal medicine, surgical, and surgical pathology textbooks. He noted that his literature review did not uncover a link of periductal mastitis, duct ectasia, or mild fibrocystic changes with either atypical lobular hyperplasia or cancerous changes. He also discussed the veteran's case with a plastic surgeon and a general surgeon who agreed that they were not aware of a link between fibrocystic changes or fibrocystic disease and atypical lobular hyperplasia. He provided the following opinion: [I]t is less likely as not that the veteran's fibrocystic breast disease was a disabling condition given that there is insufficient clinical evidence identified at this time to provide a link between fibrocystic change of the breast or fibrocystic disease of the breast and atypical lobular hyperplasia of the breast. The veteran's fibrocystic breast disease is less likely as not a physiologic finding occurring in about two-thirds of women. Fibrocystic change . . . occurs in approximately 60% of premoneopausal women and is not considered a disease state and is actually very common. However, fibrocystic disease of the breast is outside of the normal spectrum and is considered a disease state. However, fibrocystic disease of the breast is not usually linked with the later development of carcinoma of the breast or atypical lobular hyperplasia of the breast. It is less likely as not that the veteran's fibrocystic breast disease is linked to the development of atypical lobular hyperplasia which developed after separation from the service and then later resulted in bilateral, simple mastectomies. A Society of Surgical Oncology Position Statement on Prophylactic Mastectomy states that clinicopathologic presentations that increase the risk of cancer and specifically indicate bilateral prophylactic mastectomies include atypical hyperplasia of lobular or ductal origin; family history of breast cancer in a first-degree relative; and dense fibronodular breasts that are mammographically or clinically difficult to evaluate in a patient with either, or both, of the above clinical presentations. Throughout her appeal, the veteran has submitted textual evidence addressing fibrocystic changes, atypical lobular hyperplasia, and breast cancer risks. An article entitled Diagnosis of Fibrocystic Changes, from www.cancer.org, describes that there are many different types of fibrocystic changes, most of which reflect the way the breast tissue has responded to monthly hormone changes and have little other importance. This text states that some changes mean a slightly increased risk of developing breast cancer. Fibrosis is the prominence of fibrous tissue, while cysts are fluid-filled, round or oval shaped sacs within the breasts. Having fibrosis or one or more cysts does not affect a woman's breast cancer risk. Duct epithelial hyperplasia or lobular hyperplasia is an overgrowth of cells that line the ducts or lobules. Atypical hyperplasia describes cells that are slightly distorted in how they are arranged. Another text indicates that atypical hyperplasia moderately increases the risk of invasive breast carcinoma while atypical lobular or ductal hyperplasia with a family history of carcinoma in primary relatives increases the risk by 8-10 times. A different text states that atypical hyperplasia is associated with a "fivefold increase in breast cancer risk and is found in an estimated 4 to 10 percent of women with lumpy breasts." Another text defines mammary duct ectasia as a nonspecific dilatation of the major subareolar ducts with occasional involvement of the smaller ducts that is unrelated to fibrocystic changes. An article entitled Risk of breast cancer associated with atypical hyperplasia of lobular and ductal types, indicates that there is a positive association between atypical hyperplasia and the subsequent development of breast cancer, but the relationship between the different types of atypical hyperplasia has not been extensively studied. Another article entitled Cancer Found More Often in Dense Breasts indicates that density of breasts is a risk factor for breast cancer, particularly because the density masks early cancerous findings on mammograms. An article entitled Benign breast disease and the risk of developing invasive malignancy states that benign breast disease includes chronic cystic mastitis, fibroadenoma, fibrocystic disease, and related lesions. 5 to 10 percent of proliferative lesions show cellular atypia, which increases the risk of breast cancer by 5-fold. The veteran has also submitted copies of Board decisions that granted service connection for fibrocystic breast disease and that addressed ratings for previously service-connected fibrocystic breast disease. C. Legal Criteria and Analysis When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Fibrocystic Breast Disease Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). As fibrocystic breast disease was not noted on service entrance examination, the veteran is presumed to have been in sound condition as to such disease at service entry. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The evidence of record indicates that the appellant experienced fibrocystic breast disease approximately seven years after her entry into service, and that this condition persisted after service. The Board is aware of VBA Fast Letter 99-115 which indicates that fibrocystic breast disease is not a disability as it is a physiologic finding. However, the January 2007 VHA physician opined that it was "less likely as not" that the veteran's fibrocystic breast disease was a physiologic finding occurring in about two-thirds of women and that fibrocystic disease of the breast was outside of the normal spectrum and was considered a disease state. Based on this VA specialist's conclusion, the Board finds that the veteran's fibrocystic breast disease is a disability that began in service and persisted after service. Hence, service connection for fibrocystic breast disease is warranted. Status-Post Simple Bilateral Prophylactic Mastectomies Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). It is neither shown nor alleged that the veteran's simple bilateral prophylactic mastectomies occurred during service. The veteran's only contention has been that she underwent simple bilateral prophylactic mastectomies as secondary to fibrocystic breast disease. As the decision above establishes service connection for fibrocystic breast disease and the evidence shows that the veteran underwent simple bilateral prophylactic mastectomies in February 2004, what remains to be shown is that the mastectomies were done as a result of fibrocystic breast disease. The preponderance of the evidence is against such a finding. The January 2007 VHA physician reviewed the veteran's claims file, medical literature, and consulted with a plastic surgeon and a general surgeon. Based on the evidence and these consultations, he concluded that it was "less likely as not that the veteran's fibrocystic breast disease is linked to the development of atypical lobular hyperplasia which developed after separation from the service and then later resulted in bilateral, simple mastectomies." The Board finds that the textual evidence submitted by the veteran supports the VHA physician's conclusion. Specifically, the Board notes that the textual evidence shows that there are many different types of fibrocystic changes. SMRs show what the veteran had in service was fibrosis and cystic changes. About eighteen years later the pathology changed to atypical lobular hyperplasia. The textual evidence supports that such pathology is different from and unrelated to the fibrocystic changes that had their onset during service. Notably, the evidence supports that fibrosis and cystic changes do not increase a woman's risk of breast cancer; however, atypical lobular hyperplasia pathology in breast lumps does increase a woman's risk of breast cancer. This particularly increases breast cancer risks where there is a family history of the disease, as is the situation with the veteran. The textual evidence explains that the pathology between lumps and masses with fibrosis and cystic changes is very different from the pathology of lumps with atypical hyperplasia. This evidence does not indicate that there is a relationship among these different pathologies; it merely shows that breast lumps could be manifested by these many different pathologies. The article stating that atypical hyperplasia occurs in about 4-10 percent of women with lumpy breasts does not indicate that there is a higher risk of atypical hyperplasia in women with lumpy breasts as opposed to women without the condition; it merely indicates a possibility that atypical hyperplasia could occur in women with lumpy breasts. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). It does not show that atypical hyperplasia in the veteran occurred because she had fibrocystic breast disease. The Board notes that the veteran has submitted many Board decisions in support of her claim. 38 C.F.R. § 20.1303 instructs that previously issued Board decisions are not precedent; however, they "can be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." The majority of the cases submitted by the veteran address service connection for fibrocystic breast disease and increased ratings for such disability; such decisions are distinct from the issue of whether the veteran is entitled to secondary service connection for bilateral mastectomies. However, the Board notes that one 1994 decision submitted by the veteran granted service connection for residuals of fibrocystic breast disease where that veteran had undergone bilateral mastectomies. While this case also involved post-service mastectomies, the situation is factually distinct from the veteran's case as the other veteran had several different diagnoses, including mastalgia and fibrocystic dysplasia and had breast reduction mammoplasties performed during service. Additionally, there was not a medical opinion of record that was contrary to the conclusion that fibrocystic breast disease and its residuals were incurred in service. Another distinction is that the question in the current case focuses on whether secondary service connection is warranted and not whether the status- post simple bilateral mastectomies were incurred in service. Hence, the 1994 Board decision and other decisions submitted by the veteran do not reasonably relate to the case currently before the Board. The Board recognizes that the veteran is a nurse and that she has competency to opine regarding medical etiology issues. However, the preponderance of the evidence supports the contrary opinion that the atypical hyperplasia that ultimately resulted in the veteran deciding to have bilateral prophylactic mastectomies was unrelated to the fibrocystic changes that she experienced during service and for which she has now been granted service connection. The Board finds that the January 2007 VHA specialist's opinion that atypical lobular hyperplasia (and resultant mastectomies) is less likely as not related to fibrocystic breast disease holds more probative value than the veteran's opinion. It is consistent with the textual and medical evidence of record; is based on consultations by the physician with other physicians; involved extensive review of the available medical literature, review of the veteran's claims file, and her pertinent medical history. The Board finds that the preponderance of the evidence is against a finding that the atypical lobular hyperplasia and bilateral prophylactic mastectomies were proximately due to or the result of service-connected fibrocystic breast disease. In such a situation, the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for fibrocystic breast disease is granted. Service connection for status post-simple bilateral mastectomies as secondary to fibrocystic breast disease is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs