Citation Nr: 1111115 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-37 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for breast cancer, to include secondary to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD E.M. Evans INTRODUCTION The Veteran served on active duty from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2008, VA denied entitlement to service connection for tinnitus and bilateral hearing loss. Those benefits, however, were granted in a July 2009 rating decision. The Veteran did not perfect an appeal to the ratings or effective dates assigned. Hence, those matters are not before the Board. FINDINGS OF FACT 1. There is no probative evidence that the Veteran had service in the Republic of Vietnam or that she was otherwise exposed to herbicides in service. 2. Breast cancer was not present in service or manifested for many years after service, and there is no competent medical evidence to link it to service. CONCLUSION OF LAW Breast cancer was not incurred in or aggravated by active service; nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in pre-rating correspondence dated January 2008 of the information and evidence needed to substantiate and complete her claims, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and the Veteran has been afforded a meaningful opportunity to participate in the adjudication of the claim. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Hence, the case is ready for adjudication. VA did not provide the Veteran with an examination in connection with her claim, and the Board finds that an examination is not necessary to decide the merits of this claim. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). Admittedly, the threshold for the duty to provide an examination is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, however, the evidence of record is sufficient to decide the claim of entitlement to service connection for breast cancer. In this regard, service medical, as well as VA and private treatment records do not show any evidence of breast cancer until decades postservice, and there is no competent evidence suggesting that breast cancer is related to service. Thus, there is no requirement that VA provide a compensation examination or obtain an opinion. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Laws and Regulations Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Certain chronic disabilities, such as breast cancer, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service, service connection may be granted on a presumptive basis for certain diseases. Breast cancer is not, however, such a disease that is subject to this presumption. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Finally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Background and Analysis The Veteran contends that she developed breast cancer after service because of her exposure to Agent Orange and other herbicides while cleaning planes that had returned from Vietnam. She reports performing plane cleaning duties at Travis Air Force Base, California. Initially, the service medical records show no complaint or finding pertaining to breast cancer. Her enlistment and separation examinations are both negative for breast cancer, symptoms of breast cancer, or any breast abnormality. The first evidence that the appellant had breast cancer was not clinically demonstrated until 2004. Secondly, the evidence shows that the Veteran did not serve in Vietnam during her active duty service, and she does not argue otherwise. Her personnel records show that she served in the continental United States for her entire period of active duty service. Thus, she is not entitled to a presumption of in-service exposure to Agent Orange and other herbicides while on active duty. Moreover, even assuming that the appellant was exposed as she alleges, the law does not provide a presumption that breast cancer is related to exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Further, the Veteran has not presented any competent evidence linking breast cancer to Agent Orange and herbicide exposure. Thirdly, there is no competent evidence of record showing that the appellant's breast cancer is related to her military service. Indeed, the only evidence suggesting such a link is that provided by the appellant. The Veteran, however, is not shown to have any medical training. Hence, her lay opinion addressing the etiology of her breast cancer is not competent. As such, it has no probative value. Bostain v. West, 11 Vet. App. 124, 127 (1998). Given the absence of any competent evidence showing that breast cancer was demonstrated in-service, that breast cancer was compensably disabling within one year of the appellant's separation from active duty, or that the postservice diagnosis of breast cancer is related to service, the Board must find that the preponderance of the evidence is against the claim. The appeal is denied. ORDER Entitlement to service connection for breast cancer, to include as due to exposure to herbicides, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs