Citation Nr: 21067734 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-47 344 DATE: November 5, 2021 ORDER Entitlement to service connection for breast cancer is denied. FINDING OF FACT The Veteran's breast cancer was not manifested in service or within the Veteran's first post service year; and it is not shown to be related to her active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for breast cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from August 1992 to August 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2019, December 2020, and June 2021, the Board remanded the issue for further development. As reflected in the discussion section, the Board finds that adequate opinions have been obtained, and there is substantial compliance with the Board's remand instructions. Entitlement to service connection for breast cancer. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include malignant tumors, may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran is seeking service connection for breast cancer. The Veteran contends that her breast cancer is related to her breast reduction surgery that she had while in service in 1995. Additionally, the Veteran contends that her exposure to various toxins while in service led to the development of breast cancer. She contends that she was exposed to multiple paint thinners, toxins, and worked around asbestos. The Veteran had deck duty and had to chip paint. The Veteran contends that she worked in the hospital in the autoclave with chemicals for cleaning the instruments, and she worked with anesthesia. The Veteran also asserts that her breast cancer could be due to the fact that she was given Depo-Provera in the experimental phases while in the military. See September 2016 VA Form 9 and June 2019 Hearing Transcript. The Board finds that the Veteran's lay statements regarding her exposures in the military to be credible because they are consistent with her duties in the military. Further, there is no evidence to the contrary to dispute her statements. Service treatment records show that in May 1995, the Veteran had bilateral reduction mammoplasty. However, service treatment records are silent for any signs, symptoms, treatment for, or diagnosis of breast cancer. Private treatment records show that the Veteran was diagnosed with breast cancer in October 2012. Service connection is not warranted on a presumptive basis because the Veteran's breast cancer manifested several years after the Veteran's separation from service. Additionally, it was not until October 2012 that the Veteran was diagnosed with breast cancer. Prior to this, the medical evidence of record was silent for any signs, symptoms, or diagnosis of breast cancer. Therefore, service connection is also not warranted based on a theory of continuity of symptomatology. Regarding whether the Veteran's breast cancer is etiologically related to her military service, the Board finds that it is not. The evidence of record contains several medical opinions. In a January 2014 private medical opinion, Dr. J.R.R. reported that the Veteran was seeing him for a follow-up for her left breast cancer with bilateral mastectomies with reconstruction. The Veteran and the private physician had a long discussion about the Veteran's years in the Navy where she was exposed at her job. The Veteran was exposed to multiple paint thinners, toxins, and asbestos. The private physician noted that the question was how the Veteran's exposures to toxins would impact her long-term risk of breast cancer. The Veteran's family history was negative, but her diagnosis at such a young age would suggest an environmental cause. The Veteran complained of breast pain for some time before appropriate mammograms were done. The Veteran was currently free of the disease. Her exam showed no evidence of recurrence. In March 2020, the Veteran was afforded a VA examination for her breast cancer. The Veteran was diagnosed with left side breast cancer status post left mastectomy (2012), status post right prophylactic mastectomy (2012), and status post bilateral reconstructive breast with bilateral saline implant (2013). The VA examiner opined that the claimed condition was less likely than not incurred in or caused by service. Th VA examiner explained that there was no record of breast cancer during service; it was diagnosed in 2012. Although there was no record of breast reduction surgery found in the record, breast reduction surgery had nothing to do with breast cancer. There was no known chemical or excessive radiation exposure found in service in the Veteran's record that would cause cancer. Therefore, the Veteran's breast cancer was less likely than not incurred in or caused by the Veteran's claimed in-service injury, event, or illness. In January 2021, a VA addendum medical opinion was rendered by a VA examiner regarding the nature and etiology of the Veteran's breast cancer. The VA examiner opined that it was less likely than not that the Veteran's breast cancer was incurred in or caused by the Veteran's military service. The examiner explained that the Veteran had breast reduction surgery while on active duty. Breast reduction surgery was not a known risk factor for the development of breast cancer. Therefore, it was less likely than not that the Veteran's breast cancer was due to her in-service breast reduction surgery. The Veteran's exposure to asbestos was documented in her service treatment records as minimal. Given the minimal exposure to asbestos, it was less likely that her breast cancer diagnosis was due to her minimal exposure to asbestos. The Veteran worked in the hospital setting and was claiming exposure to chemicals while working the autoclave caused her breast cancer. According to a study done by Julia Hadar in the Journal of the American Biological Safety Association, emissions from the autoclave did not constitute an acute health hazard; however, they might be higher than acceptable indoor air quality limits, and might cause discomfort, headaches, or other symptoms when workers were exposed to autoclave emissions. The examiner stated that he was unable to find supporting medical evidence that would support the Veteran's claim that her chemical exposures while working in the autoclave in a hospital setting would lead to a diagnosis of breast cancer. Additionally, according to a book on chemical agents and carcinogenic risks, there was sufficient evidence in humans of the carcinogenicity of occupational exposure as a painter. Occupational exposure as a painter caused mesothelioma and cancers of the urinary bladder and lung. The examiner was unable to locate medical literature to support the claim that paint/paint thinner exposure caused breast cancer. Further, the fact that the Veteran's cancer was triple negative made it more likely that the Veteran had a genetic cause ot her breast cancer. In addition, the Veteran documented breast cancer in her aunt and great aunt. In conclusion, it was less likely than not that the Veteran's breast cancer was due to or incurred in service. In July 2021, the RO obtained a VA addendum medical opinion regarding the nature and etiology of the Veteran's breast cancer. The examiner opined that the Veteran's breast cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that he reviewed the entire claims file, including lay statements. The entrance examination showed that the Veteran used oral contraceptive for 2 years prior to service. Service treatment records showed that the Veteran was on Depo-Provera during service. Prior history of use of oral contraceptives as well as Depo-Provera was linked to a slight increase in risk of breast cancer. The literature showed that increased risk of breast cancer observed in recent or current users could be due to enhanced detection of breast tumors in women using Depo-Provera or to acceleration of the growth of pre-existing tumors. Speaking specifically to the Veteran's Dep-Provera use during service (August 1992 to August 1996), the literature showed women who had used Depo-Provera more than 5 years previously had no increase in risk of breast cancer, regardless of the duration of use. The Veteran was diagnosed with breast cancer in 2012, approximately 16 years post service. As for the Veteran's lay statement regarding exposure to hospital cleaning chemicals, and paint or paint thinner toxins, it was s not possible for the examiner to know what the exact formulation of the hospital cleaning chemicals, and paint or paint thinner toxins the Veteran used during service. The literature showed age, estrogen, family history, gene mutations, lifestyle and reproductive factors including early menarche, late menopause, late age at first pregnancy, and low parity as risk factors for breast cancer. There was insufficient information to determine whether there was an association between exposure to hospital cleaning chemicals, and paint or pain thinner toxins the Veteran used during service and breast cancer. Furthermore, a review of the literature did not support an increased risk of breast cancer due to anesthesia. The Veteran's claims file showed breast reduction surgery in 1993 during service. A review of the literature showed a lack of an association between previous breast surgery (including breast reduction) and breast cancer risk. A review of the records did not show objective evidence of asbestosis that might results from asbestos exposure. In a 2011 study, the International Agency for Research on Cancer (IARC) evaluated more than 900 different agents and determined that no agents in the workplace, including asbestos exposure, were associated with breast cancer. Therefore, it was less likely than not that the Veteran's breast cancer was related to her active service. A nexus was not established. Although in his January 2014 opinion Dr. J.R.R. opined that the Veteran's diagnosis of breast cancer at such a young age would suggest an environmental cause, the Board finds that this opinion is less probative in value because Dr. J.R.R. did not cite to medical to support his medical opinion as the other examiners did to support their negative opinions. The March 2020 VA medical opinion is flawed in two crucial respects. First, the examiner stated that there was no record that the Veteran's had breast reduction in service, when in fact, the Veteran's service treatment records contain a May 1995 operation report showing that the Veteran had breast reduction surgery. Thus, the opinion is based at least in part on an inaccurate factual premise. Further, the VA examiner did not address whether the Veteran's breast cancer was related to her exposure to asbestos, anesthesia, hospital cleaning chemicals, and paint or paint thinner toxins. Both the negative January 2021 and July 2021 VA medical opinions are adequate and probative in value when considered together as a whole. The medical opinions considered the Veteran's contentions of whether her breast cancer was related to her breast reduction surgery, anesthesia exposure, exposure to hospital cleaning chemicals, and exposure to paint or paint thinner toxins while in service. The VA examiners supported their medical opinions with citations and consideration of medical literature. They supported their conclusions with sufficient rationales. The negative January 2021 and July 2021 VA medical opinions concluded that the Veteran's breast cancer was not related to her military service. These opinions, taken together as a whole, heavily weigh against the Veteran's claim for service connection. As for the statements from the Veteran relating her breast cancer to her military service, while she may be competent to testify as to the symptoms she experiences (such as pain), it is beyond her competence as a layperson to opine that her breast cancer is related to any event or injury in service. The Veteran is a layperson and lacks the training to opine regarding medical etiology; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (finding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's breast cancer and her breast reduction surgery, anesthesia exposure, exposure to hospital cleaning chemicals, and exposure to paint or paint thinner toxins while in service. Accordingly, the appeal seeking service connection for breast cancer must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.