Citation Nr: 1224131 Decision Date: 07/12/12 Archive Date: 07/18/12 DOCKET NO. 09-28 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for breast cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1981 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia, which, in pertinent part, denied the above claim. In her July 2009 Substantive Appeal (VA Form 9), the Veteran indicated that she wished to be scheduled for a personal hearing before a Veterans Law Judge of the Board. However, in correspondence dated in June 2012, she indicated that she no longer wished to appear at a hearing before the Board. As such, her request for a hearing is deemed withdrawn. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2011). The service treatment records include a clinical report dated in October 1988 in which the Veteran denied having ever had unexplained breast lumps. A service treatment record dated in January 1991 shows that a questionable subareolar density on the left breast was indicated. The assessment was questionable mass on the left breast. It was noted that if the left breast density was still present following her cycle, she was to return to surgery for follow-up. A medical record dated in July 1991 reflects unexplained breast lumps. It was noted that this had resolved after her cycle each month. In October 1991, the Veteran's breasts were negative for masses or discharge and the assessment was a normal gynecological examination. A family history of breast cancer was noted. Following service, VA outpatient treatment records dated in November 2003 contain reports of pain and numbness of the left breast and armpit. She requested a mammogram. In October 2004, she provided a six month history of breast discharge and aching. In November 2004, she was said to have an abnormal mammogram. A December 2004 breast biopsy revealed infiltrating ductal carcinoma of the left breast. In September 2005, she underwent a modified radical mastectomy of the left breast. Thereafter, she was treated with chemotherapy for carcinoma of the left breast. The Veteran has not been provided with a VA examination to obtain an opinion as to the likelihood of a relationship between her post-service carcinoma of the left breast and the January 1991 in-service findings of a left breast mass. In a claim for service connection, medical evidence that suggests a possible nexus but is too equivocal or lacking in specificity to support a decision on the merits triggers the duty to assist if it indicates that a Veteran's condition may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79(2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her carcinoma of the left breast. The claims file and a copy of this Remand shall be made available to and be reviewed by the examiner in conjunction with the examination of the Veteran. All necessary testing shall be undertaken. The examiner is directed to provide an opinion as to whether it is at least as likely as not that the Veteran's carcinoma of the left breast had its onset during active service or is related to any in-service disease, event, or injury, to include the January 1991 in-service findings of a left breast mass. In doing so, the examiner must acknowledge the Veteran's competent reports as to the onset and continuity of symptomatology. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, such as a lack of expertise to render such an opinion, or the absence of particular testing or information required to respond. (In such case, any necessary additional testing should be accomplished if feasible.) If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. Additionally, if the examiner rejects the Veteran's statements, the examiner must provide reasons for doing so. The absence of supporting medical evidence in the service or post-service treatment records is not a sufficient reason for rejecting a Veteran's reports. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and her representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).