Citation Nr: 1333085	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  06-17 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses. 
 

REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 2003 to February 2005.  He served in Southwest Asia from September 2003 to September 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for a right ankle injury, hemorrhoids, asthma/shortness of breath, and musculoskeletal chest pains.  In August 2005, the Veteran submitted a notice of disagreement with the denials of service connection for hemorrhoids, asthma/shortness of breath, and musculoskeletal chest pains.  He subsequently perfected his appeal in May 2006.

In a May 2010 decision, the Board denied service connection for hemorrhoids, asthma, and chest pains.  The Veteran appealed the Board's denials of service connection for asthma and chest pains to the United States Court of Appeals for Veterans Claims (Court).  He did not appeal the denial of service connection for hemorrhoids.  In April 2012, the Court issued a memorandum decision, setting aside the May 2010 decision and remanding the issues of entitlement to service connection for asthma and chest pain to the Board.  The appeal was returned to the Board for action consistent with the April 2012 Court remand.

In February 2013, the Board granted service connection for asthma and remanded the Veteran's claim of entitlement to service connection for a chest disability, to include chest pain, gynecomastia, and/or cystic breast masses to the Appeals Management Center (AMC) for further evidentiary development, including obtaining additional VA treatment records, providing the Veteran with additional notice, and affording the Veteran a VA examination.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC obtained updated VA treatment records and provided the Veteran with additional notice in a March 2013 letter.  Additionally, the Veteran underwent a VA examination in March 2013.  Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.


FINDING OF FACT

The Veteran's currently diagnosed gynecomastia is the result of medications taken for his service-connected posttraumatic stress disorder.


CONCLUSION OF LAW

Gynecomastia was caused or aggravated by a service-connected disability.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran's claim for service connection has been granted, as discussed below.  As such, any error related to the VCAA is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran alleges that he currently suffers from a disorder or disorders manifested by chest pain, to include gynecomastia, as a result of his military service.  Therefore, he believes that service connection is warranted for gynecomastia and any other identified chest disorder on a direct basis.  Additionally, the Board finds that the evidence raises the issue of service connection on a secondary basis for gynecomastia.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  

Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  See 39 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

The medical evidence reveals that the Veteran has been diagnosed with gynecomastia.  Notably, a May 2005 VA general medical examination noted small cystic masses in the bilateral upper outer breasts on palpation and a May 2005 mammogram was consistent with gynecomastia.  As such, the first element of Wallin is met for gynecomastia.

The Veteran is service connected for posttraumatic stress disorder (PTSD) and takes medication to treat this condition, including risperidone.  The second element of Wallin is also met.

With respect to the remaining element (a medical nexus), the VHA physician concluded that the Veteran's gynecomastia was likely related to his risperidone use.  Although the VHA physician also discussed the Veteran's nonservice-connected drug and alcohol abuse, he opined that if the gynecomastia occurred in relationship with the initiation of risperidone, the medication may have caused or contributed to the Veteran's condition.  Reference was to well established and validated associations with a sound scientific basis that supported this conclusion.  

Although the VHA physician also listed the Veteran's nonservice-connected drug and alcohol abuse as possible contributors to his development of gynecomastia, he did list risperidone use as an equal possible cause or contributor.  The Board is satisfied that the effects of the Veteran's nonservice-connected drug and alcohol use cannot be clearly dissociated from those of his use of medications for his service-connected PTSD. 


In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition.  Although Mittleider involved a claim for an increased rating rather than a claim for service connection, the Board finds that it applies here because, as there, the medical professional could not separate the effects of the service-connected PTSD medication and any non-service-connected drug or alcohol use on the Veteran's gynecomastia.

Thus, affording the Veteran the full benefit of the doubt, the Board finds that the VHA opinion supports a finding of secondary service connection for gynecomastia.

The Board notes that the Veteran has been afforded other VA examinations, including a March 2013 examination and opinion specifically on the etiology of his gynecomastia.  However, the Board has not found them to be sufficiently probative negative evidence to outweigh the positive VHA opinion - as evidenced by the Board's decision to seek a VHA opinion rather than decide the case on the examinations/opinion of record.  As the claim is being granted, the Board deems any further conversation of any contradictory medical evidence irrelevant.

In light of the May 2013 positive VHA opinion linking the Veteran's service-connected PTSD and risperidone treatment with his gynecomastia and the lack of sufficiently probative medical evidence to contradict this, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current gynecomastia is related to his service-connected PTSD.  As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for gynecomastia is granted on a secondary basis.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection for gynecomastia is granted on a secondary basis.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs