Citation Nr: 18147889 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-34 112 DATE: November 8, 2018 ORDER Service connection for breast cancer is denied. FINDING OF FACT The Veteran’s breast cancer was not incurred in service or diagnosed within the presumptive period after service. CONCLUSION OF LAW The criteria for service connection for breast cancer have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2003 to November 2007. Entitlement to service connection for breast cancer Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Malignant tumors are a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as malignant tumors, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Additionally, pursuant to 38 U.S.C. § 1117, “a Persian Gulf Veteran with a qualifying chronic disability,” that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. 38 U.S.C. § 1117 (a) (1); 38 C.F.R. § 3.317 (a) (1). The Veteran served in Iraq during her active duty service. There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) “[a]n undiagnosed illness,” (2) “[a] medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms,” or (3) “[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service connection.” 38 U.S.C. § 1117 (a) (2) (A), (B), (C); 38 C.F.R. § 3.317 (a)(2)(i)(B). Breast cancer is not a qualifying chronic disability under these provisions. Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Private treatment records indicate the Temple VA medical center (VAMC) referred the Veteran to a private oncologist after an August 2009 abnormal mammogram. The private oncologist diagnosed the Veteran in March 2010 with low grade ductal carcinoma in situ (DCIS) in her left breast with calcifications in her right breast. She subsequently underwent bilateral mastectomies in August 2010. The Veteran contends her exposure to toxic chemicals and jet fuel as an Army petroleum supply specialist caused her breast cancer. Service treatment records indicate the Veteran reported being in “ excellent ” health on her June 2006 post-deployment questionnaire. She also reported exposure to jet fuels, burn pits, and oil fire fumes. There are no complaints, diagnoses or treatments for tender breasts or breast lumps in service. The Veteran underwent her first screening mammogram in August 2009. The Veteran reported that she was drenched “from the top of her head to her feet” with fuel on 3 occasions, that she was near burn pits of oil and feces, and that her duties to provide fuel on the flight line during her deployment in Iraq and when stationed in the United States exposed her to environmental toxins. The Veteran’s reports of exposure to toxic and environment hazards during service are credible, given her military occupational specialty (MOS) as a fuel supply specialist and her foreign deployment to the Southwest Asia theatre of operations. Her testimony and evidence is consistent with the places, types and circumstances of her service and her exposure to toxins is therefore recognized. See 38 U.S.C. § 1154 (a). At the July 2014 VA medical examination, the Veteran detailed the numerous biopsies and surgeries she underwent prior to and after the March 2010 breast cancer diagnosis. She reported pain with flare-ups in her breasts, left more than right, with no family history of breast cancer. The examiner noted residuals of her breast cancer treatment included swelling, numbness, and tingling in the Veteran’s left arm. The examiner opined the Veteran’s breast cancer was less likely than not incurred in or caused by service because current medical literature did not indicate a link between jet fuel exposure and an increased risk for cancer. The examiner also noted the Veteran’s breast cancer did not demonstrate as an undiagnosed illness, or a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Finally, the examiner opined there was “no increased risk of breast cancer” associated with Gulf War service and that it was less likely than not that the Veteran’s breast cancer was etiologically related to her Gulf War service. In December 2014, a private doctor opined that “although it is possible a cause and effect relationship could exist between the breast cancer and prior exposures [to jet fuel],” the doctor could not identify a direct link between the Veteran’s prior exposure to jet fuel and her breast cancer. The doctor also noted breast cancer was a “common” diagnosis for women with no prior jet fuel exposure and that it was not possible to determine if the Veteran’s exposure caused her cancer. The preponderance of the evidence is against finding service connection for breast cancer. There is no probative medical evidence that indicates the Veteran’s breast cancer was incurred in service or that it was diagnosed within the presumptive period after service. While the private examiner indicated there could be a relationship, this opinion is speculative and the private physician ultimately concluded she could not determine if the exposure caused the Veteran’s cancer. See also Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran’s death “may or may not” have been averted if medical personnel could have effectively intubated the Veteran held to be speculative). Consequently, the private opinion is of little probative value. The Board has considered the Veteran’s submissions of December 2014. These include articles on the onset and causes of breast cancer. However, these articles provide general information only, and are of minimal probative value. They do not expressly link the Veteran’s service incidents of fuel exposure to her development of breast cancer. See Wallin v. West, 11 Vet. App. 509 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314 (1998)); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012) (Board decision affirmed where Board recited law with respect to the probity of medical treatise evidence and found that it did not show to any degree of specificity that the Veteran’s disorder was linked to military service). The Veteran has continuously asserted throughout the appeal that the onset of her breast cancer is a result of her in-service exposure to jet fuel and other environmental toxins. The Veteran is competent to report observable symptomatology of her condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through her own lay assertions, the Veteran is not competent to offer opinions as to the etiology of her breast cancer. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Breast cancer requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between her breast cancer diagnosis and its relationship to her service. The July 2014 VA medical examiner’s opinion, on the other hand, is highly probative. The examiner reviewed the record for any fact-based objective evidence of symptoms demonstrating the onset of breast cancer in service, noted current medical literature on breast cancer development, and acknowledged the Veteran’s lay statements regarding her breast cancer diagnosis, treatment and residuals, as well as the circumstances of her in-service exposure to jet fuel and other toxins. Since the Veteran’s breast cancer was not related to her service, the claim for service connection must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel