Citation Nr: 1321287 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 06-28 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for fibrocystic breasts. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a cracked tooth number 5 with residuals of an implant placement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to April 1994, July 1996 to August 1996, and from September 2003 to August 2004. She also served in the reserve. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a November 2005 rating decision of the VA Regional Office in San Diego, California that denied entitlement to service connection for dental treatment purposes of tooth number 5, and a left breast nodule and bilateral breast cysts. The Veteran was afforded a hearing at the RO in December 2006, as well as a videoconference hearing before a Veterans Law Judge, who has since retired, in September 2009. The transcripts are of record. By decision in November 2009, the Board denied entitlement to service connection for compensation purposes for a cracked fifth tooth with implant. The issue of entitlement to service connection for bilateral fibrocystic breast disease was remanded for further development. It was determined that the Veteran's testimony and statements raised a theory of entitlement to compensation for a cracked fifth tooth under 38 U.S.C.A. § 1151. This matter was also remanded for development. The issues were remanded for additional development in June 2011, and in November 2012 to schedule a hearing. The Veteran was afforded a videoconference hearing in April 2013 before the undersigned Veteran's Law Judge sitting at Washington, DC. The transcript is of record.. Following review of the record, the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for cracked fifth tooth with implant placement is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Fibrocystic breasts were not shown in service but were treated after discharge from active duty. 2. The competent evidence of the record preponderates against finding that fibrocystic breasts are related to service. CONCLUSION OF LAW Fibrocystic breasts were not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(24), 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, 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). In this case, VA has fulfilled its duty to notify the Veteran of the information needed to substantiate the claim. The duty to assist has also been fulfilled. VA has obtained identified and available evidence in support of the claim. The appellant has had personal hearings and VA examinations in furtherance of the appeal. The Board finds that VA examinations are adequate to render a determination as to this matter on appeal. There is no evidence of any VA error in assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2012). The term "active military service" includes active duty, any period of active duty for training during (ACDUTRA) which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) 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. 38 C.F.R. § 3.303(d). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Factual Background The Veteran's extensive service treatment and training records reflect no breast-related complaints or symptoms. While being treated in December 2003 for complaints unrelated to this appeal, it was noted that her medical history included a breast lumpectomy in 1996. The appellant was afforded multiple physical examinations over the years and the chest, including the breasts, were evaluated as normal. She denied tumors, growths and cysts at all times. A March 2004 Chronological Record of Medical Care reflects a finding of normal breasts with no masses. It was advised and noted that the Veteran would get a post deployment mammogram. In an April 2005 private clinic note it was reported that the ultrasound study revealed fibrocystic breasts. The Veteran wrote in June 2005 that, prior to being activated in September 2003, a mammography study was cancelled due to the speed of her mobilization. She related that the Army did not provide a mammogram either prior to or after she returned from deployment in August 2004. The appellant reported that when she went to her personal physician and received her mammogram results, more tests were scheduled because a problem seemed to be emerging. The Veteran stated that an ultrasound detected left breast lumps and that more testing would be scheduled in September 2005. A June 2005 VA outpatient record noted that Veteran called about results of a left breast ultrasound. The outpatient records also noted a history of benign left breast mass removal in 1996 at Long Beach VA. In July 2005, the appellant related that the Army did nothing to provide her with necessary breast scans that are needed when a woman was over fifty. She argued that this represented neglect on the part of the military. She stated that her breast nodule and cysts most likely formed when she was on active duty because they were discovered by her civilian provider after she returned from active duty. A March 2005 private bilateral ultrasound was interpreted as probably benign. An April 2005 report of Right Diagnostic Mammography indicated that the Veteran had had an outside mammogram in January 2005 in which a density was circled in the upper right breast on the oblique view. The examiner noted that breast studies performed in February and April 2005 did not demonstrate the density observed in January 2005. It was determined that the findings suggested an overlap of fibroglandular tissue as no abnormalities were noted in the right breast. The impression was no nodules indentified in right breast. Subsequently received were VA outpatient records dated in July 1997 showing that the Veteran underwent mammography, ultrasound and excision biopsy of a left breast mass that were found to be highly suggestive of mild fibrocystic disease in the left breast with a small bilobular cyst in the left retroareolar area and a small fibroadenoma deep in the left breast. It was reported that there was no evidence of malignancy. The Veteran was afforded a VA examination in October 2005. She provided history to the effect that about eight years before, she developed a lump in the left breast that was removed. She related that following her discharge from the military in 2004, she had a mammogram where it was noted that there was a lump in the left breast. The appellant stated that following several mammograms and an ultrasound, she was determined to have a benign cyst that was "cut in half." The appellant indicated that she had follow-up appointments in this regard. On physical examination, the breasts were symmetric. There was evidence of fibrocystic breast disease. There was no evidence of mass, lymphadenopathy, drainage, discharge peu d'orange, nipple retraction or tenderness. Following examination, the diagnoses included bilateral fibrocystic breast disease. Subsequently received were VA outpatient clinical records dated between March 1997 and February 2007 showing that the Veteran underwent diagnostic work-up for a left breast mass and was followed for fibrocystic breasts. A December 2001 outpatient clinic note from Primecare Medical Group dated indicated that physical examination disclosed bilateral nodular tissue with no discrete mass but with some areas more prominent than others. An assessment of fibrocystic breast, rule out nodules was recorded. Clinical reports from Loma Linda University Medical Center dated in January 2002 reflect that the Veteran underwent ultrasound and mammography and was noted to have palpable masses in both breasts consistent with cysts and fibroadenoma. The Veteran presented testimony on personal hearing in December 2006 to the effect that she did not have any issues with her breasts during active duty but that a year after service, a lump was discovered. At a September 2009 personal hearing she testified that she developed a left breast lump while on orders in the military. She related that she found a lump that was confirmed by her gynecologist, and surgery was arranged around 1998. Pursuant to Board remand, the appellant was afforded a VA examination in March 2010. Pertinent history heretofore recited was reiterated. A physical examination, including ultrasound studies and bilateral breast mammography were performed. Following examination, a diagnosis of bilateral fibrocystic breasts with current hemorrhagic cysts or fibroadenomas, asymptomatic, was rendered. The examiner opined that the Veteran had fibrocystic breast prior to her period of active duty from August 2003 to August 2004. The examiner stated that the disorder did not increase in severity during her military service, and that it was not as least as likely as not related to any period of active service dating back to 1993. The Veteran underwent a VA examination in October 2011. Pertinent history and findings previously reported were recited. Following examination, fibrocystic breast disease was diagnosed. The examiner opined that fibrocystic breast disease clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond it natural progression during service. The examiner explained that fibrocystic breast disease was usually a benign (non-cancerous) condition that might worsen before a menstrual cycle and lessen towards its end. In an VA examination addendum dated in July 2012, the examiner further commented that medical professionals had stopped using the term 'fibrocystic breast disease' and simply referred to the condition as 'fibrocystic breasts' because it was really not a disease at all. The examiner related that although the breast changes categorized as 'fibrocystic breasts' were normal, they could cause breast pain, tenderness and lumpiness, especially in the upper, outer area of the breasts. The examiner went on to say that based on the Veteran's multiple mammograms dating from 1997, the results always disclosed fibrocystic breasts, that the appellant had had biopsies with pathology results shown as 'benign' and that this was not a disease. The examiner reiterated that fibrocystic breast was not a disease and was a term used to describe a variation of normal breast tissue. Legal Analysis The Board observes that the Veteran has had breast-related diagnoses that include cysts, masses, fibrocystic breasts, fibrocystic breast disease and fibroadenomas, etc. However, service treatment records are entirely negative for findings, complaints, or a diagnosis for any breast-related disorder. Periodic physical examination reports obtained during service and during periods of training all reflect that she denied breast-related complaints or findings, and the chest/breasts were invariably evaluated as normal on all occasion. The record reflects the appellant underwent a lumpectomy in 1997, was noted to have fibrocystic masses and/or fibroadenoma in late 2000 and early 2001, and also sought medical attention in late early 2005 for similar complaints and findings that were shown to be benign. None of the specific dates for which treatment was sought and obtained coincided with a period of active duty. The Board thus finds that the normal entrance and separation examinations, the lack of complaints during active service, her specific denial of any breast-related complaints on multiple physical examinations during service, and objective evidence of treatment for a breast symptoms outside of active duty all compel a finding that her Veteran's lay assertions of fibrocystic breasts deriving from inservice pathology are not credible. As such, fibrocystic breasts of service onset must be denied. Moreover, there is a competent clinical opinion in the record to the effect that within the medical community, fibrocystic breasts have come to be considered a constellation of fluxuating breast symptoms. Significantly, fibrocystic breasts are not viewed as a disease process per se. In October 2011 and July 2012, the VA examiner stated that fibrocystic breast was not a disease and was a term used to describe a variation of normal breast tissue. She reiterated this position at length. Therefore, if there is medical consensus in this regard, the Board is required to address the issue of what constitutes a "disability" under VA law. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). The Federal Circuit has noted that in order for a veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110 or § 1131, the Veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Id. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Therefore, the mere fact that a veteran reports subjective or physical symptoms, whether pain or otherwise, does not necessarily warrant a finding that she has met the requirement for a current disability due to disease or injury. Rather, an underlying disease or injury is required. In this case, the Veteran has fibrocystic breasts that were not demonstrated during a period of active duty. Although she essentially argues that the condition must have developed during a period of active duty because it became manifest within a year thereafter, the Board points out this condition is not a disease or disability for which a presumption of service connection applies. See 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). The appellant is shown to have had long-term issues with fibrocystic breasts but, as stated previously, no breast-related disease or disability was demonstrated during any period of service. Moreover, there is competent evidence of record that fibrocystic breasts is not a disease but a normal breast tissue variant. As such, the requirement for a current disability due to disease or injury is not adequately demonstrated. Therefore, under the circumstances, service connection for fibrocystic breasts is denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for fibrocystic breasts is denied. REMAND Following the most recent supplemental statement of the case in September 2012, additional evidence was received in support of the claim of service connection for compensation under 38 U.S.C.A. § 1151 for cracked fifth tooth consisting of clinical report dated in September 2012 from F. A. Finazzo, DDS. This evidence has not previously been considered in the adjudication of this case, and neither the Veteran nor her representative has waved consideration of this evidence by the agency of original jurisdiction. The Board cannot consider this evidence in the first instance and must remand this matter to the RO for consideration of this evidence, and if the claim remains denied, the issuance a supplemental statement of the case. See 38 C.F.R. §§ 19.38(b)(3); 20.1304(c) (2012). Accordingly, the case is REMANDED for the following action: After taking any further development deemed appropriate, re-adjudicate the issue on appeal. If the benefit is not granted, provide the appellant and her representative a supplemental statement of the case and afford them the opportunity to respond before the case is returned to the Board for appellate disposition. The appellant 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). 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. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs