Citation Nr: 18148584 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-16 057 DATE: November 7, 2018 ORDER Entitlement to service connection for breast cancer is denied. FINDING OF FACT Breast cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for breast cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102. 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Air Force from January 1980 to June 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter was previously remanded by the Board in July 2017 for readjudication and consideration of additional evidence. I. Service Connection A. Pertinent Statutes and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. With regard to malignant tumors, 38 C.F.R. 3.307(b) stipulates that the disease must have become manifest to a degree of 10 percent or more within one year from the date of separation from service. When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). In order to show continuity of symptomatology, a claimant must demonstrate three things: (1) a condition “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in-certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97 (1997)); see 38 C.F.R. § 3.303(b) (2017). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Service Connection The Veteran asserts that her breast cancer either began in service or within one year after her separation from service. She also contends that the oral contraceptives prescribed by her physician during service caused her breast cancer. Furthermore, her representative asserts that her uterine fibroids are indicative of “a service-connected estrogen problem.” Service treatment records document several breast exams and mammograms without specific evidence of malignancy. A September 1995 mammogram noted the Veteran’s dense parenchyma but concluded there was no specific mammographic evidence of malignancy. The Veteran’s last mammogram in service was conducted in February 2000. That exam was compared to films from September 1991, September 1995, and February 1999. In February 2000, the Veteran reported concern about a “bump” under her right breast to medical officials on base. She contended that “no follow-up was conducted.” The Veteran’s February 2000 mammogram found no new dominant masses, architectural distortion, or suspicious clusters of microcalcifications suggestive of malignancy. There was a notation of “stable, benign-appearing microcalcifications.” February 2000 Radiologic Examination Report. The Board has considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested breast cancer to a degree of 10 percent within one year following her discharge from service in June 2000. In this case, the clinical evidence first revealed a diagnosis of breast cancer in March 2008. As such, presumptive service connection for breast cancer is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regard to service connection on a direct basis, the Board has considered several medical opinions in addition to the lay statements, arguments, articles, and theories submitted by the Veteran and her representative. The preponderance of the evidence is against the Veteran’s claim for service connection breast cancer. While the evidence of record shows that the Veteran had been diagnosed and treated for breast cancer, the probative evidence of record demonstrates that such is not related to her service. A February 2001 Annual Well-Woman Exam did not note any cystic changes or masses in the Veteran’s breasts. The treatment notes of provider S.A. indicate “probably benign mammogram results”, but suggest a six-month followup exam with magnification views of the right breast. The February 2002 Annual Well-Woman Exam notes help to interpret the exam notes from 2001. The patient questionnaire from February 2002 indicates that the Veteran performed monthly breast self-examinations and that she had a “normal” mammogram in 2001. The provider, S.A., did not note any cystic changes or masses in the Veteran’s breasts. The March 2002 mammogram found “punctate calcifications in the right breast without significant interval change.” Those calcifications had been present since 1997. Additionally, there were “other scattered benign-appearing calcifications in the breasts”; however, the breasts were without any new dominant mass or architectural distortion. In her March 2002 treatment notes, S.A. presents more definitive language. She evaluated the Veteran’s mammogram as “normal”, and recommended an annual clinical breast exam. The Board affords significant weight to this contemporaneous medical record. See Curry v. Brown, 7 Vet. App. at 68. The March 2002 treatment report by S.A. shows that there were no concerns about the Veteran’s breasts or any potential abnormalities more than one year after she left active duty. A November 2008 opinion from Dr. D.C., a private oncologist, indicated that the Veteran was diagnosed with breast cancer in March 2008. The oncologist indicated that this cancer was 2.2 cm and grade 2. The oncologist estimated that the cancer had been growing “for approximately eight years.” Such an opinion suggests an in-service onset of the Veteran’s breast cancer. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may” or “may not” language by a physician is too speculative). Moreover, this opinion does not offer a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”) As such, this opinion is being afforded little, if any, probative weight. A November 2008 opinion from Dr. B.B., a private surgeon, indicated that the Veteran was treated for breast cancer in early 2008. The surgeon indicated that the cancer was T2N0(i+)M0 Stage IIA right breast cancer. He explained that the Veteran was treated with adjuvant chemotherapy and radiation therapy. Furthermore, he indicated that “there is no precise way to determine how long [the Veteran’s] cancer had been there,” but that “studies suggest that most breast cancers have been present for years prior to diagnosis.” Dr. B.B. included a diagram from Dr. Susan Love’s Breast Book, which, he said, “shows that most tumors have been present for 8 years before they are seen on mammograms and for 10 years prior to being palpable” Therefore, Dr. B.B. opined that the Veteran’s tumor likely started 8 years prior to being detected on mammography. This opinion also suggested an in-service onset of the Veteran’s breast cancer. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. Dr. B.B. states that “there is no precise way to determine how long [the Veteran]’s cancer had been there.” See Tirpak, 2 Vet. App. at 611. As such, this opinion is being afforded little, if any, probative weight. A June 2009 opinion from Dr. N.H., a VA examiner, found that the Veteran’s breast cancer was less likely as not the result of service or started in service. In coming to her conclusion, the VA examiner considered the two opinions issued by Drs. D.C. and B.B. As noted by the VA examiner, Dr. D.C. did not provide a rationale for his estimation. The VA examiner found fault with the opinion issued by Dr. B.B. because it relied on an outdated version of a lay publication not accessible in VA medical data banks and noted that advertisements for this book state that the new edition had been completely rewritten from prior editions. The VA examiner also noted that the Veteran’s breast cancer was not detectable on a mammogram that she received in 2007, one year before her diagnosis and that the current method of early detection of breast cancer is mammogram. The VA examiner found fault with Dr. B.B.’s assertions regarding the growth rate of the Veteran’s tumor. According to the examiner, “the duplication rate of this patient’s breast cancer, based on Dr. B.B.’s rationale would be much faster…”. The VA examiner also noted that the cancer cell growth model that Dr. B.B. submitted as evidence was “overly general and cannot be applied to this particular patient.” The June 2009 VA examiner also made note of the Veteran’s biopsy results—particularly the fact that the Veteran’s tumor was moderately differentiated infiltrating carcinoma. This cell type is not the most aggressive form of cancer, but neither is it the slowest. It is the examiner’s assertion that tumors that take eight years to become detectable are “the slowest growing of breast cancer types, which are much more typical in women older than this Veteran and in those with undifferentiated cell types.” The VA examiner cited a research article, “Breast cancer tumor growth estimated through mammography screening data” published in May 2008. According to the VA examiner’s research, the mean time a tumor needed to grow from 10mm to 20mm in diameter was estimated to be 1.7 years, increasing with age. The VA examiner noted the following: [E]ven if [the Veteran] had one or even several cancer cells while still in the service, current science did not and still does not have a way to detect breast cancer in such as [sic] early stage. Speed of doubling time of cancer cells in vivo is theoretical. The June 2009 opinion of Dr. N.H. is afforded significant probative weight as it includes a thorough review of the claims file; it is factually accurate, fully articulated, and expresses sound reasoning for its conclusion. See Nieves-Rodriguez, supra. A November 2010 opinion from Dr. M.E., a private physician, explained that the Veteran’s dense breast tissue might have obscured a significant abnormality on mammogram. He also opined that the Veteran’s cancer was likely present for many years prior to its initial detection. He also stated that the exact date of the cancer’s origin cannot be determined from imaging studies. Such an opinion does not suggest an in-service onset of the Veteran’s breast cancer. The speculative terminology used by this physician does not provide sufficient basis for an award of service connection. See Obert, 5 Vet. App. at 33. Moreover, this opinion does not provide any rationale. See Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. As such, this opinion has little, if any, probative weight. In March of 2017, the Board received the opinion of Dr. E.S., a professor of Surgical Oncology. This physician opined that it was highly unlikely (far less than 50/50 probability) that the Veteran’s breast cancer was caused by service, a result of service, or had its onset during service as she was diagnosed and treated according to the National Comprehensive Cancer Center (NCCN) guidelines. Dr. E.S. explained that “most indolent cancers with a very low proliferation index would likely have grown and metastasized to many nodes and [the Veteran’s] lung and bones if unattended for 8 years.” Dr. E.S. opined that there is no evidence to support a claim for service connection for breast cancer. He noted that “immunochemical parameters such as grade 2, lymphovascular invasion, and venous invasion have been traditionally… thought to represent aggressive or rapidly growing tumors with a shorter doubling time and likelihood of becoming palpable well within two or three years.” Dr. E.S. stated that “the pathology report clearly states that the patient’s tumor had features consistent with a more rapid proliferation or cell division rate as illustrated by the intermediate grade 2, lymphovascular invasion, venous embolic invasion, and isolated tumor cells in the same sentinel node,” that these high risk features led to the recommendation to undergo adjuvant chemotherapy for a high risk more rapidly growing estrogen receptor positive cancer and that such a tumor would not have been sitting indolently for eight to 20 years. The physician noted that the Veteran had undergone a normal digital screening mammogram in 2007 at the same facility which first documented the change in the parenchymal pattern or architectural distortion in 2008 and that this rapid change in the mammographic parenchymal pattern would argue against any suggestion that her cancer had been there for eight to 20 years. The Board affords significant weight to Dr. E.S.’s opinion because it includes a thorough review of the Veteran’s treatment; it specifically addresses the question of service connection without speculation; and, it includes a detailed, articulate analysis supported by medical rationale. Dr. E.S.’s opinion had a clear conclusion, supporting data, and a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. The Board notes that the Veteran and her representative have generally contended that her breast cancer is related to her “service-connected estrogen problem.” This claim is without merit as the Veteran does not have a service connection for excess estrogen but rather is service connected for a uterine fibroid with iron deficient anemia. As such, it is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, the Board notes that the Veteran has contended that her breast cancer may have been caused by her birth control medication, which she was prescribed for more than 10 years. In this regard, she disputes the statement of Dr. E.S. that she was prescribed BCP for “a very short time.” Regardless of the duration of the Veteran’s BCP prescription, Dr. E.S. was unequivocal in his statement that “BCP have never been associated with an increased risk of breast cancer.” Dr. E.S. also stated only hormone replacement therapy for many years with estrogen/progesterone in women with an intact uterus has been associated with an increased risk of breast cancer (19/1000) and that this risk is reversible if women stop hormone replacement therapy use after five years. There is no contrary probative opinion of record suggesting that the Veteran’s breast cancer was caused by her use of oral contraceptives. This argument is therefore without merit. With regard to the Veteran’s claims of a palpable “bump” that was not addressed in February 2000, the Board has determined that there is no evidence in the record to link the “bump” with the discovery of a malignant tumor eight years later. The Veteran received several mammograms and breast exams between 2000 and 2008. The mammogram and breast examination that she received in February 2002 confirmed that there were no malignant findings present in the Veteran’s breast. The Tricare provider also documented normal objective findings with regard to the Veteran’s breast. Based on the evidence of record, any concern about a “bump” on the Veteran’s right breast was no longer noteworthy in subsequent exams. Furthermore, according to Dr. E.S., if the Veteran could feel her tumor in 2000, it would not be the type of slow-growing cancer described by Dr. B.B. Dr. E.S. is the only medical expert to address the Veteran’s claims regarding the “bump” that she felt in February 2000. He wrote that “even the most indolent cancers with a very low proliferation index (Ki-67<15) would likely have grown and metastasized to many nodes and [the Veteran’s] lung and bones if unattended for 8 years.” This argument is therefore without merit. The Board notes that May 2017 brief, the Veteran’s representative raised the issue of the competency of the March 2017 VHA expert, Dr. E.S. The opinion expressly states that he is a Professor in the Division of Surgical Oncology in the Department of Surgery at a national university’s medical school and a simple internet search shows that Dr. E.S. is also a physician in the VA system. Although the Veteran’s representative suggests that Dr. E.S. is not a licensed physician or that he had misspelled his own name in this May 2017 brief, a simple search of the state licensing database reveals that Dr. E.S. is, in fact, a licensed physician and has been since 2003. A search of the university’s website also reveals Dr. E.S.’s curriculum vitae. Based on his reported education, training, appointments, board certifications, grants, consultations, publications, memberships, committees, presentations, honors and awards, the Board finds it hard pressed to imagine a more competent expert on the topic of breast cancer. Thus, at this point, the Board does not find that the presumption of competency of a VA medical expert has been rebutted. See, e.g., Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Cf. Mathis v. Shulkin, 137 S. Ct. 1994 (2017) (denying writ of certiorari to review the presumption of competence of VA examiners). This argument is utterly without merit. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s service and her breast cancer to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, the Board accords the statements regarding the etiology of the Veteran’s breast cancer little probative value as neither she nor her representative are competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issued. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and in the case of cancer, has stymied scientists the world over. In the instant case, there is no suggestion that the Veteran and/or her representative have had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran, and/or her representative are nonprobative evidence. The Board has also considered the Veteran’s submission of several journal, Internet, and magazine articles in support of her claim. The Board has reviewed the CNN, National Review, and Forbes articles submitted by the Veteran. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must “not simply provide speculative generic statements not relevant to the [claimant]’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). In this case, the article excerpts cited by the Veteran only provide general information as to the possibility of an increased risk of breast cancer for certain women taking oral contraceptives. These excerpts are not accompanied by any corresponding clinical evidence specific to the Veteran and do not suggest that her specific cancer was related to her service and/or caused or aggravated by her service. The articles fail to establish any certainty with regard to the Veteran’s case nor do they reflect plausible causality based upon objective facts. Moreover, the copied articles appear to be excerpts from Internet websites, and in the case of the CNN excerpt, was not provided within its context. As such, the Board finds this information to be of little to no probative weight in this case. Wallin, supra. The Board has also considered the Veteran’s presentation of case law from the Board in support of her claims. However, Board decisions are not precedent. Notably, 38 C.F.R. § 20.1303 states, “Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided.” Instead, “each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.” Id. Moreover, the facts of the cases cited by the Veteran differ substantially from the facts of her own case. There has been a recent and comprehensive evaluation of the Veteran’s medical records that consider the in-service note about a bump beneath her right breast. Dr. E.S. directly addressed the medical reasons why this bump was not etiologically related to the cancer that was diagnosed in 2008. The Veteran has not raised any other issue of material fact to counter this medical conclusion. Based on the evidence, the Board finds that service connection is not warranted for the Veteran’s breast cancer or its residuals. The preponderance of the evidence shows that the malignant tumor diagnosed as breast cancer in 2008 was not manifest in service; it was not manifested to a degree of 10 percent within one year of separation; there was no continuity of symptomatology between the Veteran’s breast “bump” noted in her 2000 service treatment records and the 2008 diagnosis of breast cancer; there is no relation between the Veteran’s breast cancer diagnosis and any incident in service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for breast cancer. As such, that doctrine is not applicable in the instant claim, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel