Citation Nr: 20049294 Decision Date: 07/23/20 Archive Date: 07/23/20 DOCKET NO. 13-00 505 DATE: July 23, 2020 ORDER Entitlement to service connection for status post breast ductal carcinoma with scars (hereinafter “breast ductal carcinoma”) is denied. Entitlement to an initial rating in excess of 10 percent for right eye corneal scars, status post Lasik surgery with dry eye syndrome (hereinafter “right eye disability”) is denied. REMANDED Entitlement to service connection for aphasia, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection, to include on a secondary basis, for left arm disability is remanded. FINDINGS OF FACT 1. The Veteran’s breast ductal carcinoma did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran’s active service. 2. The Veteran’s right eye disability does not manifest corrected visual acuity of 20/70 in one eye and 20/50 in the other eye, nor is there evidence of impairment of muscle function, field defect, or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for service connection for breast ductal carcinoma have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2019). 2. The criteria for an initial rating in excess of 10 percent for right eye disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.75-4.79, DCs 6011-6080. (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to January 1989, April 2003 to June 2003, and September 2003 to December 2003; with additional Reserve service. In March 2016, the Veteran testified at Board of Veterans’ Appeals (Board) hearing before the undersigned. The claims were most recently before the board in January 2019. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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, 1167 (Fed. Cir. 2004). 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). Entitlement to service connection for breast ductal carcinoma The Veteran seeks service connection for breast ductal carcinoma which he contends began during active service. Alternatively, the Veteran contends that his breast ductal carcinoma is due to exposure to contaminated drinking water while stationed at Mather Air Force Base. There is no dispute that the Veteran has current residuals of breast ductal carcinoma, as evidenced by his post-service private treatment records, as well as his October 2009 and January 2020 VA examinations. The dispositive issue is whether this disability began during service or is otherwise related thereto. After consideration of the entire record and relevant law, the Board finds that service connection for breast ductal carcinoma is not warranted. The Board has reviewed all of the evidence of record, to include in-service and post-service treatment records, as well as VA examinations, which does not support the finding that breast ductal carcinoma was demonstrated during the Veteran’s military service, that this claimed disability was disabling within one year of separation from active duty, or that there is a nexus between the claimed disability and service. Here, the Veteran’s service treatment records (STRs) are silent for a diagnosis of and treatment for breast ductal carcinoma. STRs reflect June 2003 and December 2003 mammogram results, both noting the Veteran’s dense breast tissue. However, neither mammogram detected any dominant masses or suspicious calcifications. While the December 2003 radiologist indicated that the Veteran’s family history of cancer makes him a high risk patient, the radiologist stated that the December 2003 mammogram was normal and negative for malignancy. The Veteran was advised to continue with monthly breast self-examinations and annual breast screenings. Additionally, the evidence does not show a manifestation of the Veteran’s breast ductal carcinoma within one year of his active service, as post-service treatment records during this timeframe are silent for a diagnosis of and treatment for breast ductal carcinoma. The Board notes that a gap of approximately 1.5 years exists in the Veteran’s treatment records from the time of separation from service up until the Veteran’s diagnosis of breast ductal carcinoma. This period without treatment for breast ductal carcinoma is evidence that there has not been a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, the Board finds that the Veteran’s breast ductal carcinoma did not have its onset in active service or within one year thereafter. Further, there is no medical or other competent evidence of a nexus between the Veteran’s breast ductal carcinoma and service. The October 2009 VA examiner opined that it is less likely than not that the Veteran’s breast ductal carcinoma began during active service, indicating that the evidence of record did not reflect a diagnosis of breast ductal carcinoma during service. Pursuant to the Board’s January 2019 remand directives, a VA medical opinion was obtained in January 2020 to address the nature and etiology of the Veteran’s breast ductal carcinoma. Upon examination of the Veteran and review and consideration of his in-service and post-service treatment records, as well as his lay statements of record, the examiner opined that it is less likely than not that the Veteran’s breast ductal carcinoma began during active service or is related to any incident during active service. The examiner rationalized that both the June 2003 and December 2003 mammograms performed during active service revealed no evidence of suspicious masses or lesions or malignancy. Further, the examiner explained that the Veteran’s May 2005 mammogram and corresponding report show features that are consistent with multiple tiny foci of cells that show ductal carcinoma in situ with comedo features high grade, which is a fast growing neoplasm. As the Veteran’s type of cancer is classified as fast growing, the examiner opined that it is more likely than not that it began very close to the May 2005 diagnosis and was not present in 2003 during the Veteran’s active service. Thus, the Board finds that the Veteran’s breast ductal carcinoma is not related to active service. The Board finds the January 2020 VA medical opinion to be probative, as it includes the most thorough and factually supported opinions of record, given they are consistent with other evidence of record and included review of the Veteran’s claims file. The VA examiner determined that there was no nexus between the Veteran’s breast ductal carcinoma and his military service. The VA examiner has training, knowledge, and expertise on which she relied on to form her opinions, and she provided a persuasive rationale for them. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of breast cancer is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board affords the VA opinion more probative value than the Veteran’s lay opinion. The Board also acknowledges the Veteran’s contention that his breast ductal carcinoma is a result of consuming contaminated drinking water while stationed at Mather Air Force Base from February 1988 to September 1989. VA has acknowledged that persons residing or working at U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § § 3.307(a)(7) (2019). However, breast ductal carcinoma is not one the diseases associated with exposure to contaminants in the water supply at Camp Lejeune. Here, the Veteran does not contend, nor does the record reflect, that he was ever stationed at Camp Lejeune. 38 C.F.R. § § 3.307(a)(7) does not extend to military bases other than Camp Lejeune, the Veteran is not presumed to have been exposed to contaminated drinking water, and, therefore, service connection is not warranted on a presumptive basis. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of service connection for breast ductal carcinoma. Absent medical or other competent evidence of a nexus between the Veteran’s breast ductal carcinoma and service, the Veteran’s claim for service connection must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 10 percent for right eye disability The Veteran contends that his service-connected right eye disability warrants a higher initial rating. This disability is currently rated as 10 percent disabling under DCs 6011-6080. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). DC 6011 refers to retinal scars, atrophy or irregularities, while DC 6080 refers to visual field defects. 38 C.F.R. § 4.79, Diseases of the eye. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under both the former and revised criteria for DC 6011, a 10 percent rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. 38 C.F.R. § 4.79. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher rating. Under the former criteria, the alternative evaluation is based on visual impairment due to retinal scars, atrophy, or irregularities. Under the revised criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Under the General Rating Formula for Diseases of the Eye, an eye disability is evaluated based on visual impairment or incapacitating episodes, whichever results in a higher evaluation. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual field or muscle function will be conducted only when medically indicated. 38 C.F.R. § 4.75(b). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Pursuant to that table, a 10 percent rating is warranted where corrected distance vision is 20/50 in one eye and 20/40 in the other eye. Ratings of 20 percent or higher require at least one eye to manifest in corrected distance vision of 20/70 or worse. The table of Ratings for Impairment of Visual Fields encompasses DCs 6080 – 6081. 38 C.F.R. § 4.79. Under both the former and revised criteria for DC 6080, homonymous hernianopsia is rated 30 percent. Loss of temporal half of visual field warrants a 30 percent rating if it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye. Loss of nasal half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye. Loss of inferior half of visual field warrants a 30 percent rating if it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye. Loss of superior half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye. Ratings are also provided for concentric contraction of visual field. Where there is a remaining field of 46 to 60 degrees, a 10 percent rating is warranted for either bilateral or unilateral involvement. Alternatively, this equates to 20/50 vision in each affected eye. Where there is a remaining field of 31 to 45 degrees, a 30 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/70 vision in each eye. Where there is a remaining field of 16 to 30 degrees, a 50 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/100 vision in each affected eye. Where there is a remaining field of 6 to 15 degrees, a 70 percent rating is warranted for bilateral involvement and a 20 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/200 vision in each affected eye. Where there is a remaining field of 5 degrees, a 100 percent rating is warranted for bilateral involvement and a 30 percent rating is warranted for unilateral involvement. Alternatively, this equates to 5/200 vision in each affected eye. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions. 38 C.F.R. § 4.79 at Notes 1 and 2. A 10 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 1 but less than 3 treatments for an eye condition during the past 12 months. A 20 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating, the highest schedular rating allowed, is warranted for evidence of documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. Turning to the evidence of record, during the October 2009 VA examination, the Veteran reported light sensitivity and discomfort in his eyes. Corrected distance vision measured 20/25 in the right eye and 20/25 in the left eye. Bilateral corneal scars were noted. However, there was no evidence of visual field defect, impairment of muscle function, to include diplopia, or incapacitating episodes. Private treatment records from 2015 show corrected distance vision measuring no more than 20/30 in the right eye and 20/30 in the left yet. While retinal irregularities were noted, no visual field defects were found. Further, these records are silent for evidence of impairment of muscle function, to include diplopia, or incapacitating episodes. During his March 2016 Board hearing, the Veteran testified that his vision had worsened in his right eye. Pursuant to the Board’s May 2016 remand directives, the Veteran was afforded another VA examination to assess the current severity of his right eye disability. During the Veteran’s April 2018 VA examination, corrected distance measured 20/40 in the right eye and 20/40 in the left eye. There was no evidence of visual field defect, impairment of muscle function, to include diplopia, or incapacitating episodes. The Veteran reported dye eye symptoms, and the examiner noted that he would be referred to a Cornea specialist to treat dry eyes. Pursuant to the January 2019 remand, the Agency of Original Jurisdiction (AOJ) attempted obtain any outstanding private treatment records identified by the Veteran. While records from Mt. Sinai were obtained, they were silent for evidence of impairment of visual acuity, visual field defect, impairment of muscle function, to include diplopia, or incapacitating episodes. As to the other private treatment providers identified, two attempts were made to obtain these records, yielding negative results. Thus, the Board finds that there has been compliance with its January 2019 remand directives, and it will proceed with adjudication of the issue on appeal. Based on a review of the evidence of record, the Board finds that a rating in excess of 10 percent for right eye disability is not warranted. The probative evidence of record, to include the Veteran’s 2009 and 2018 VA examinations, as well as his post-service VA and private treatment records, do not reflect corrected distance vision of 20/70 in one eye and 20/50 in the other eye. On the contrary, the medical evidence reflects corrected distance vision measuring no more than 20/40 in each eye, which equates to a noncompensable rating based on impairment of visual acuity. Further, there is no evidence of visual field defect, impairment of muscle function, or incapacitating episodes. Here, the Veteran’s right eye disability is manifested by right eye corneal scars, which warrants a 10 percent rating under DC 6011. As the Veteran’s right eye disability is not productive or any visual impairment or incapacitating episodes, the currently assigned 10 percent rating for right eye disability under DC 6011 is appropriate. The Board acknowledges the Veteran’s assertions that his right eye disability is more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the competent medical evidence offering specific specialized determinations relevant to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran’s right eye disability. In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for right eye disability, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. The claims of entitlement to service connection, to include as due to an undiagnosed illness, for aphasia and memory loss are remanded. During his March 2016 Board hearing, the Veteran testified as to his claimed symptoms of aphasia and memory loss. In April 2020 and May 2020 statements, the Veteran alleged that these symptoms may be due to an undiagnosed illness resulting from his service in the Gulf War. The Veteran’s DD 214 confirms service in Southwest Asia from September 2003 to December 2003. To date, the Veteran has not been afforded a Gulf War examination as to these claimed symptoms. For this reason, remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of the Veteran’s claimed aphasia and memory loss. 2. Entitlement to service connection, to include on a secondary basis, for left arm disability is remanded. The Board’s January 2019 remand directed the RO to schedule the Veteran for a VA examination to address the nature and etiology of his claimed left arm disability. Review of the record reflects that the Veteran was not afforded a VA examination as to his left arm. As such, a remand is required to obtain a VA examination and medical opinion in compliance with the Board’s January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for examination by an appropriate examiner to address the nature and etiology of any illnesses stemming from the Veteran’s service during the Persian Gulf War. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. The examiner must conduct a complete clinical examination addressing all of the Veteran’s claimed symptoms, to include aphasia and memory loss. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a. Are the Veteran’s complaints of aphasia symptoms attributable to a known clinical diagnosis? b. Are the Veteran’s complaints of memory loss symptoms attributable to a known clinical diagnosis? c. For each such identified diagnosis, the examiner should opine as to whether is it at least as likely as not (a 50 percent probability or greater) that such disability manifested in service or is otherwise related to service. d. Alternatively, if any of the Veteran’s symptoms cannot be attributed to a known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to the Veteran’s Persian Gulf War service, or a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms. If the Veteran’s symptoms are found to represent an objective indication of a chronic disability resulting from either an undiagnosed illness or a chronic multi-symptom illness, the examiner should also describe the extent to which the illness has manifested. 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any diagnosed left arm disability. The Veteran’s electronic claims file must be accessible for review by the VA examination in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed left arm disability had its onset in service or is otherwise directly related to service? b. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed left arm disability is proximately due to or caused by the Veteran’s service-connected disabilities, to include cervical spine disability? c. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed left arm disability is aggravated (defined as any increase in disability) by the Veteran’s service-connected disabilities, to include cervical spine disability? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinions, the examiner should consider the Veteran’s STRs, which reflect April 2003 and May 2003 complaints of and treatment for a left shoulder mass, followed by further complaints of tenderness and palpation of the left shoulder in June 2003, following excision of the left shoulder mass. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.