Citation Nr: A19001550 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190326-5283 DATE: September 26, 2019 ORDER New and relevant evidence has been received, and the Veteran’s claim seeking service connection for breast cancer is reopened. Entitlement to service connection for breast cancer is granted. FINDINGS OF FACT 1. Evidence received after a September 2013 denial that is both new and relevant to the Veteran's claim seeking entitlement to service connection for breast cancer. 2. The record evidence is at least in relative equipoise as to whether the Veteran’s breast cancer is related to service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for breast cancer have been met. 38 C.F.R. § 3.2501 (2019). 2. The criteria for service connection for breast cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from November 1983 through February 1984 and October 1990 through May 1991. The Veteran also was a member of the United States Air Force Reserves from 1983 to 1990. For her meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In March 2019, the Veteran requested a direct review of her appeal by the Board. As a result, this matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As a result of the direct election, only evidence of record at the time of the February 2019 rating decision will be considered. New and Relevant Evidence 1. New and relevant evidence has been received and the Veteran’s claim seeking service connection for breast cancer is reopened. The Veteran submitted evidence with her legacy system appeal to reopen her claim seeking entitlement to service connection for breast cancer. The Veteran’s previous claim for breast cancer was denied in a September 2013 rating decision. The Veteran did not initiate an appeal to this decision, nor was new and material evidence submitted within a year of that decision. The September 2013 decision is thus final. The Veteran filed a new claim seeking service connection for breast cancer in August 2016. The RO denied the claim in a January 2017 rating decision. In December 2017, her representative requested the RO reconsider the January 2017 rating decision. The RO complied and requested an addendum medical opinion to consider the new and relevant evidence submitted by the Veteran. As a result, the RO issued the February 2019 rating decision currently on appeal. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.2501. “Relevant evidence” is evidence that tends to prove or disprove a matter at issue in a claim. Id. The question in this case is whether the Veteran submitted evidence after the prior final denial of her claim for service connection for breast cancer in the legacy system, and if so, whether that evidence is new and relevant to her claim. The Board finds the Veteran submitted new evidence after the prior final rating decision in the legacy system that is relevant to her claim. Several VA examinations, private medical opinions, articles, and a buddy statement have been added to the record since the September 2013 prior final legacy rating decision. The VA examinations and private medical opinions contain etiological opinions related to the Veteran’s breast cancer that were not already of record and may prove or disprove whether the Veteran’s breast cancer is related to her service. Readjudication of the claim is warranted. Service Connection 2. Entitlement to service connection for breast cancer is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. To establish service connection for a 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). 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. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74; 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; 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. 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. 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. 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. The Veteran contends her breast cancer is a result of her exposure to toxins and chemicals she was exposed to during her service with the United States Air Force during the Persian Gulf War. The Board recognizes the Veteran was diagnosed with breast cancer. The Veteran’s private treatment records reflect she was diagnosed with triple-negative, node-negative breast cancer in March 2011. She underwent radiation therapy, chemotherapy, and a right breast lumpectomy. The first element of establishing service connection for the Veteran’s breast cancer is met. The Board next finds that the Veteran suffered from an event, injury, or disease in-service. The Board concedes the Veteran’s service in the Persian Gulf is verified and as detailed by her private medical opinions, her exposure to toxins in-service more likely than not caused her breast cancer. The Veteran also submitted a buddy statement who recalled the heat and how the plastic water bottles were on pallets sitting in the sun, which the Veteran contends caused her breast cancer. The Board also notes the Veteran was sent correspondence from the Office of the Under Secretary of Defense in January 2002; this correspondence noted she may have been exposed to low levels of chemical agents as a result of demolition. Therefore, the second element of service-connection is met. The final criteria to be met is whether there is a competent link between the Veteran’s current disability and her active service. The Veteran underwent a VA examination in October 2016 and was provided a VA medical opinion in January 2017 and an additional VA medical opinion in February 2019. The October 2016 VA examiner concluded the Veteran’s breast cancer was less likely than not related to her service. The January 2017 medical opinion stated that the Veteran was exposed to very low levels of chemical agents for a brief period of time and that there was no available literature linking Sarin and Cyclosarin exposure to breast cancer. The examiner concluded the Veteran’s breast cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the February 2019 VA medical opinion, the provider discussed the Veteran’s contentions in more detail. The February 2019 provider expanded on the medical study referenced by the Veteran, stating that the studies are very early and cannot yet directly correlate chemical exposure (specifically from plastic water bottles exposed to high heat) to the Veteran’s breast cancer. The provider stated they agreed with the January 2017 VA medical opinion that it is less likely than not that the patient’s breast cancer was caused by in-service exposure to chemicals. The Veteran provided two private medical opinions. The first medical opinion came from Dr. D.C. Dr. D.C. reported he reviewed the Veteran’s records and reported there were intriguing details regarding her exposure in-service. He detailed how breast cancer occurs and explained that on the “induced” side of breast cancer, it is hard to determine a direct link until a population study confirms an increase in incidence of cancer related to specific exposure. He stated he could not confirm the Veteran’s breast cancer was related to her service, he said the information exists that the risk was increased but he was unsure to what extent. This opinion provided an opinion, but not a direct link to service, falling short of providing a nexus medical opinion. The Veteran submitted a second private medical opinion in December 2017 from Dr. C.B. Dr. C.B. states that the Veteran was exposed to toxic water from plastic water bottles stored in the desert heat. He provided an excerpt from an article titled, “Bisphenol A Induces a Profile of Tumor Aggressiveness in High-Risk Cells from Breast Cancer Patients.” Dr. C.B. noted the Veteran drank from plastic water bottles while in-service and then she developed breast cancer. He concluded the Veteran’s breast cancer is most likely caused by her exposure to the chemicals and toxins derived from the plastic water bottles. The Veteran also submitted an article about the links of receiving the anthrax vaccine and the link to illnesses, including breast cancer. The Veteran also submitted her own statement about her breast cancer and her exposure to toxins in-service. In cases where there are two different medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. Furthermore, the VA has a duty to uphold the benefit of the doubt rule, and in cases where the evidence is in relative equipoise, service connection must be granted. In weighing the VA opinions against the private medical opinions, the Board determines that the evidence for and against the medical nexus question is in relative equipoise. Although the VA opinions provided a negative nexus opinion, the February 2019 VA provider stated the study referenced by the Veteran’s private opinion provided a compelling starting point. Even though the VA opinions produced negative opinions for the Veteran, the Board finds that her December 2017 positive private nexus opinion is sufficient to establish service connection. Giving the benefit of the doubt to the Veteran, the Board must resolve reasonable doubt in favor of the Veteran. The Board notes that the findings in this decision are based on the unique facts and circumstances of this Veteran’s service. The Board makes its decision herein based on the evidence submitted by the Veteran; the Board is not making a categorical finding as to any similarly situated claimant. That said, in this case, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s breast cancer resulted from her in-service exposure to environmental toxins. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection have been met. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.