Citation Nr: 21063189 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-46 062 DATE: October 13, 2021 REMANDED Entitlement to service connection for breast cancer is remanded. Entitlement to service connection for a bilateral eye disorder, to include as secondary to claimed breast cancer, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from April 1971 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision. In a January 2020 decision, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. As previously noted by the Board in the January 2020 decision, a September 2019 letter notified the Veteran that she was scheduled for a Travel Board hearing in November 2019 as a result of her request for such a hearing in her August 2016 VA Form 9. However, the Board found in the January 2020 remand that the hearing request was withdrawn as the Veteran did not report to the hearing or otherwise attempt to contact the Department of Veterans Affairs (VA) about the scheduled hearing. The Veteran has also not submitted any subsequent requests for a Board hearing. 1. Entitlement to service connection for breast cancer is remanded. In the January 2020 remand, the Board directed the AOJ to schedule the Veteran for a VA examination and obtain a medical opinion that addressed the nature and etiology of the Veteran's breast cancer, to include the Veteran's contention that the disorder was related to her in-service exposure to chemicals during photography development without protective gear in the course of her duties as a photographer. The Veteran was provided with a February 2020 VA examination related to her service connection claim for breast cancer, and a VA examiner initially provided a positive nexus opinion in March 2020. The examiner noted that the Veteran had no issues related to breast cancer prior to her military service; that the onset of the condition was during service; and that there was evidence of current, chronic, and continuous treatment and care. The examiner further noted that the Veteran's DD 214 indicated that she was a photographer during her service, and she later presented with complaints of left breast pain in 2005 with a diagnosis of breast cancer that resulted in a left mastectomy with lymph node (LN) dissection. The examiner also stated that a link was established with exposure to photo chemicals and breast cancer in 2010, and the examiner cited to a May 2007 article from the American Cancer Society (ACS) Journals, "Chemicals Causing Mammary Gland Tumors in Animals Signal New Directions for Epidemiology, Chemicals Testing, and Risk Assessment for Breast Cancer Prevention." A July 2020 Deferred Rating Decision reflects that the AOJ later sought a clarifying medical opinion as the March 2020 VA examiner noted in the rationale that the onset of the condition was during service despite the fact that the Veteran's service treatment records (STRs) were negative for any complaints or treatment related to breast pain, a diagnosis of breast cancer, or any other complaint or treatment of a breast condition. In August 2020, a different VA examiner provided a negative nexus opinion. The examiner noted that the claims file available for review was silent for a history of breast complaints while in service, the Veteran was not diagnosed with breast cancer until 33 years after service, and a nexus had not been established. The examiner added that the Veteran was diagnosed with HER 2 neu/FISH neg, a type of gene linked to breast cancer. However, the Board finds that the August 2020 opinion is inadequate as the examiner did not address the potential significance of the May 2007 scientific article referenced by the March 2020 VA examiner regarding chemicals causing mammary gland tumors in terms of the Veteran's contention that her in-service exposure to chemicals as a photographer caused her breast cancer. As the opinions that were obtained in relation to the January 2020 remand of the Veteran's service connection claim for breast cancer are inadequate, a remand is warranted to obtain an additional VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the August 2020 examiner's statement that the Veteran has a gene linked to breast cancer raises the issue of whether the Veteran's breast cancer is a congenital condition. As VA's general counsel has explained, a disease, even if it is of hereditary or congenital origin, can be incurred or aggravated in service if its symptomatology did not manifest until after entry on active duty. See VAOGCPREC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990). But congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Only congenital "defects," as opposed to congenital "diseases" are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries. The test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. "[C]ongenital or developmental defects are normally static conditions which are incapable of improvement or deterioration." Id. The opinion states further: "A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration." Id. Congenital defects are potentially eligible for service connection only to the extent that the defect is subject to in-service superimposed disease or injury. See VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). As the August 2020 examiner did not provide all the information needed to apply these principles, the Board finds that the VA medical opinion obtained on remand should address the question of whether the Veteran's breast cancer is a congenital disease or defect. 2. Entitlement to service connection for a bilateral eye disorder, to include as secondary to claimed breast cancer, is remanded. The Board's January 2020 remand instructed the AOJ to schedule the Veteran for a VA examination and to obtain a medical opinion in connection with her service connection claim for a bilateral eye disorder. The Board noted that for each identified diagnosis, the examiner should indicate whether or not the disorder is a congenital defect or disease. If a disorder was a congenital defect, the Board instructed the examiner to state whether there was any evidence of superimposed disease or injury during the Veteran's active duty service. If a disorder was a congenital disease or not a congenital defect, the Board requested for the examiner to state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service, and if so, whether there was an increase in the severity of the disorder during the Veteran's active duty service. If the disorder was not a congenital defect or disease, the Board requested for the examiner to state whether it is at least as likely as not the disorder(s) manifested in or is otherwise related to active duty service. In February 2020, the Veteran was provided with a VA examination specific to eye disorders. The examiner noted diagnoses of bilateral diplopia secondary to decompensating heterophoria as well as bilateral cataracts. The examiner also provided a negative nexus opinion in March 2020 regarding whether the Veteran's double vision, strabismus, and cataracts were directly related to active service, including the Veteran's exposure to chemicals as a photographer. As this opinion did not clearly address the Board's request for the examiner to state whether the diagnosed disorders were a congenital defect or disease, the AOJ later obtained an additional VA examination and addendum opinion in November 2020. In the November 2020 VA examination report, the examiner documented diagnoses of left eye vertical strabismus, nuclear cataracts in both eyes, dry eye syndrome in both eyes, and hypertensive retinopathy in both eyes. In the November 2020 medical opinion, the examiner stated that the Veteran's diplopia was secondary to strabismus, which is a congenital defect. However, rather than answering the Board's question associated with identified congenital defects as to whether there was a superimposed disease or injury during service, the examiner opined that it was less likely than not that the Veteran's diplopia was aggravated by her time in service and indicated that there was no evidence that the in-service exposure to chemicals would cause an aggravation of strabismus. Although the examiner also provided a negative medical opinion and rationales related to direct service connection for disorders that were not a congenital defect or disease, it appears that the opinion and rationales did not address all the diagnosed eye disorders other than the strabismus and diplopia. After marking the available choice in the report to state that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner stated that the opinion was specifically responding to the claimed condition of double vision, strabismus, and cataract. In response to a separate question in the report requesting for the examiner to provide a rationale that covered all claimed and diagnosed conditions in order to support the opinion, the examiner provided a rationale that only discussed the Veteran's strabismus and cataracts. Consequently, the opinion did not clearly address the diagnosed hypertensive retinopathy or dry eye syndrome from the November 2020 VA examination which are also encompassed in the Veteran's service connection claim for a bilateral eye disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Based on the foregoing, the Board finds that the opinions that were obtained in the response to the January 2020 Board remand are inadequate and a remand is necessary to obtain an additional VA medical opinion. See Barr, 21 Vet. App. at 312; Stegall, 11 Vet. App. at 271. The Board also notes that in September 2008, a VA optometry note that included an assessment of visually insignificant nuclear cataracts in both eyes stated that the Veteran felt that her cataracts increased after her cancer treatments 1.5 years ago. As the only cancer referenced under the past the medical history in this record was breast cancer, the record raises the theory that the Veteran's diagnosed cataracts are secondary to her claimed breast cancer. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's service connection claim for breast cancer are completed and the matter is either resolved or prepared for appellate review. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any health care providers who have provided treatment for her breast cancer and/or bilateral eye disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since December 2020. 2. After completing the preceding development in paragraph 1, obtain a VA medical opinion from a qualified examiner that addresses the etiology of the Veteran's breast cancer. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. For the Veteran's diagnosed breast cancer, the examiner should provide an opinion as to the following questions: (a) The examiner should explain whether the breast cancer is a congenital defect, a congenital disease, or a disorder not of congenital/developmental origin. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (b) If the breast cancer is determined to be a congenital defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (c) If the breast cancer is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran's entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service. (d) If the breast cancer is not congenital and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service; manifested within one year of the Veteran's discharge from active service; or is otherwise related to active service. In providing an opinion, the examiner should address the following: (1) the Veteran's contention that her breast cancer is related to her in-service exposure to chemicals without protective gear during photography development in the course of her duties as a photographer; (2) the VA examiner's statement from the March 2020 VA medical opinion that a link was established with exposure to photo chemicals and breast cancer in 2010, and the examiner's citation to a May 2007 article from the American Cancer Society (ACS) Journals, "Chemicals causing Mammary Gland Tumors in Animals Signal New Directions for Epidemiology, Chemicals Testing, and Risk Assessment for Breast Cancer Prevention;" and (3) the August 2020 VA medical opinion in which the examiner stated that the Veteran was diagnosed with HER 2 neu/FISH neg, a type of gene linked to breast cancer. 3. After completing the preceding development in paragraph 1, obtain a VA medical opinion from a qualified examiner that addresses the etiology of any current bilateral eye disorder. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left and/or right eye disorders. If bilateral diplopia secondary to decompensating heterophoria, left eye vertical strabismus, bilateral nuclear cataracts, bilateral dry eye syndrome, and bilateral hypertensive retinopathy are not identified, the examiner should address the diagnoses noted in the February 2020 and November 2020 VA examination reports. For each identified disorder, the examiner should provide an opinion as to the following questions: (a) The examiner should explain whether each disorder is a refractive error and/or congenital defect, a congenital disease, or a disorder not of congenital/developmental origin. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (b) For each eye disorder that is determined to be a refractive error and/or congenital defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (c) For each eye disorder that is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran's entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service. (d) For each eye disorder is not a refractive error, congenital, and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service or is otherwise related to active service. In providing an opinion, the examiner should address the Veteran's contention that her eye disorders are related to her in-service exposure to chemicals without protective gear during photography development in the course of her duties as a photographer. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, to include the inextricably intertwined issue of entitlement to service connection for a bilateral eye disorder, to include as secondary to claimed breast cancer. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.