Citation Nr: 21062103 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-01 548 DATE: October 6, 2021 ORDER Entitlement to service connection for a left breast disorder is denied. FINDING OF FACT The Veteran's left breast disorder was not incurred in service and is not otherwise causally or etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for left breast disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1986 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter was previously before the Board in July 2018, May 2020, and June 2021, whereupon it was remanded each time to allow for additional development to include obtaining outstanding records and scheduling the Veteran for a VA examination for her left breast disorder. Such records were obtained in September 2021. See CAPRI September 16, 2021. A VA-contracted examination vendor contacted the Veteran in August 2021 to schedule an examination for her left breast disorder. The Veteran requested to cancel the examination and further told the vendor to stop contacting her. See VA Exam (Cancellation Notice) August 9, 2021. The August 2021 supplemental statement of the case (SSOC) also detailed the steps taken to schedule the Veteran for an examination as well as her refusal to be scheduled for one and the consequences of failing to report for an examination. Unfortunately, evidence from this examination, which may have been material to the outcome of this claim, will not be able to be considered. The Board notes that VA has a duty to undertake reasonable efforts to assist a Veteran in developing a claim (i.e. scheduling the Veteran for an examination). However, the Veteran must also cooperate with the VA in furthering her claim. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(1); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that the VA's duty to assist is not a "one-way street" and that a claimant has a duty to cooperate with the VA in developing evidence to support a claim). To this date, the Veteran has not reported she did not receive notice of the examinations, provided good cause as to why she did not appear for the examination or refused to be scheduled for the examination, or requested that the examination be rescheduled. Thus, the Board finds that VA has met its duties to the Veteran and there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board will now move to adjudicate this claim based on the evidence of record. 1. Entitlement to service connection for a left breast disorder is denied. The Veteran contends that her left breast condition is the result of her service or had its onset during her service. In her July 2010 notice of disagreement, the Veteran wrote that she experienced breast pain during service and that she still experienced this pain. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. § 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a). The Veteran's claimed left breast disorder is not a disease that is listed under these provisions. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record, but when a claimant fails to report without good cause for an examination scheduled in conjunction with a reopened claim or a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member, etc. 38 C.F.R. § 3.655(a). The Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Court has held, however, that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. at 193. If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining relevant evidence. Id. In determining whether service connection is warranted for a disability, VA 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 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). Service treatment records document normal mammogram findings in April 2005 and August 2007, after the Veteran reported with pain in her left breast. Post-service treatment records include a diagnosis for left breast cyst in 2010. Ultrasound findings were taken and revealed a cluster of cysts in the Veteran's left breast. The Veteran then underwent a cystectomy, in which the cysts were drained and removed. Treatment notes from throughout 2009 to 2014 document recurrent cysts on the Veteran's left breast. The Veteran was provided a VA examination in January 2009, at which the Veteran reported having focal left lateral breast pain for the previous few years. The examiner noted that the Veteran's breast pain had lessened after she reduced her caffeine consumption. The examiner opined that the Veteran's breast issues were mastodynia and were more likely than not related to her caffeine consumption. The Veteran was provided another VA examination in December 2020. The examiner opined that it was less likely than not that the Veteran's left breast disorder was incurred in or caused by her service. The examiner reasoned that the Veteran's mammogram findings had all been normal during her service and that the first indication of a left breast disorder was in 2010, two years after separation from service. Thus, it was less than likely that the Veteran's condition was related to her service. The Board previously found this opinion to be inadequate as it did not consider the Veteran's reports of in-service left breast pain. However, as detailed above, the Veteran did not appear for this examination, and requested that she stop being contacted to schedule an examination. Therefore, the Board will continue based on the evidence of record. 38 C.F.R. § 3.655(b). There are no other etiology opinions of record. Upon review of the above evidence, the Board finds that service connection for a left breast disorder. While the Veteran's service treatment records reflect complaints of breast pain during service, her mammogram were found to be normal in April 2005 and August 2007 and there is no in-service diagnosis of a left breast disorder. Post-service treatment records reflect a diagnosis of a cyst in 2010, about two years following service discharge. Finally, there is no medical evidence in the record that links the Veteran's claimed left breast disorder to an incident her active military service. While a medical examination and opinion would have been helpful with regard to this claim. VA has been unable to obtain such an adequate examination/opinion. As above, given the Veteran's failure to report for the scheduled examination or refused to be scheduled for an examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. The Veteran contends that her left breast disorder is related to her service. As a lay person, the Veteran is competent to report observable symptoms, such as cysts and breast pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, while the Veteran is competent to report having experienced symptoms of a breast disorder, she is not competent to opine on the etiology of the condition and/or to determine that these symptoms are somehow related to either her active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon a review of the evidence of record, the Board finds that the evidence does not to rise to at least equipoise for the Veteran's claim. The medical opinion evidence of records is unfavorable and weighs against the Veteran's claim. The Board notes that both VA opinions of record were found to be inadequate in previous Board decisions. A new VA examination that personally examined the Veteran, holistically considered the evidence of record, and then provided an informed nexus opinion with supporting rationale would have been very helpful in deciding this claim. However, unfortunately such an examination was unable to be provided, despite VA's efforts. Thus, the Board must rely on the evidence of record, which preponderates against the Veteran's claim. Accordingly, as the preponderance of the evidence is against the claim, the Board finds that the Veteran's claim must be denied. The benefit of the doubt doctrine is not for application due to the lack of evidentiary equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.