Citation Nr: A21020576 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 200506-85921 DATE: December 28, 2021 REMANDED Service connection for residuals of breast cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to September 1967. She appeals a May 2020 rating higher level review decision, filing a VA Form 10182, Decision Review Request: Board Appeal, electing the Hearing docket, in May 2020. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in January 2019, that denied the claim. The Veteran filed a supplemental claim in October 2019. The claim was denied in December 2019. The claim for HLR review was filed in January 2020 and denied in the May 2020 decision on appeal. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his/her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). A hearing was held before a Veterans Law Judge (VLJ) in September 2020. At the hearing, the VLJ clarified the issue on appeal. The Veteran reported that she waived the 90-day post hearing period to submit additional evidence. Service connection for residuals of breast cancer is remanded. Failure to afford the Veteran an adequate VA examination constitutes pre-decisional duty to assist error that must be corrected on remand. Service connection is in effect for panhysterectomy and endometriosis. Favorable findings in the May 2020 rating decision include that the Veteran has been diagnosed with a disability, as treatment records from Duke Medicine showed a confirmed diagnosis of breast cancer in June 2006. At the hearing, it was argued that the January 2019 VA medical opinion actually supports the claim on appeal or, alternatively, at least necessitates the need for an addendum opinion as it is inadequate. The Veteran's representative urged in essence that the opinion is confusing and cannot be used to support a denial of the claim. The January 2019 VA opinion is as follows: The veteran served in the US Air Force from 02/X/1967 until 09/X/1967. She underwent right salpingo-oophorectomy in 1963 and left salpingo-oophorectomy in 1965. She entered military service in 1967. She underwent panhysterectomy during military service in 1967 and was started on Premarin (synthetic estrogen replacement) immediately after the hysterectomy. She did not require estrogen replacement due to the hysterectomy but due to the bilateral oophorectomies which took place prior to her military service. The ovaries produce estrogen and progesterone. The absence of both ovaries put the veteran into surgical menopause, although she was not treated with hormone replacement until 1967. The hysterectomy itself did not necessitate hormone replacement, since the uterus does not produce estrogen or progesterone. She was treated with Premarin, which is a synthetic hormone made from the urine of pregnant mares. It is not a human hormone, therefore not recognized by the human body. The Women's Health Initiative study studied over 160,000 women between 1993 and 1998. They studied the effects of Premarin (synthetic estrogen) and Provera (synthetic progesterone) and found a significantly elevated risk of breast cancer in women who were treated with either drug compared to controls. As a matter of fact, the study was stopped early due to the findings of increased incidence of breast cancer as well as heart disease in women who received those drugs. The veteran was treated with Premarin for many years, documented in her claims file, which may have caused her breast cancer. She was started on Premarin during military service, documented in her service treatment records. Since she was not treated with Premarin due to her hysterectomy, but due to the surgical absence of both ovaries, which happened several years before her hysterectomy, it is less likely than not that her breast cancer with bilateral mastectomy was caused by the hysterectomy during service. A nexus has not been established. The VLJ noted that it seems that the author of the opinion was just looking at the question of secondary service connection for the residuals as being secondary to the medication taken for a hysterectomy, but it did not appear that the examiner actually considered that she started the medication in service. The rating decision granting service connection for panhysterectomy and endometriosis notes that these conditions are related to the pre-service ovaries removal and represented worsening. The Veteran's endometriosis is rated as adhesions to the ovaries. Here, we also note that with regard to aggravation, the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b) (1). There has been no finding that breast cancer residuals constitute usual effects of medical and surgical treatment in service. In light of the above, an addendum medical opinion should have been obtained to clarify whether the current residuals of breast cancer are related to service or service-connected panhysterectomy and endometriosis. The matter is REMANDED for the following action: Obtain an addendum opinion from a suitable clinician, other than the examiner who provided the 2019 opinion, addressing the nature and etiology of the Veteran's breast cancer residuals. Re-examination is at the discretion of the clinician. Thereafter, upon review of the record, to include this remand, the VA examiner is asked to opine whether it is as least as likely as not (50 percent probability or greater) that the Veteran's residuals of breast cancer are (1) related to an in-service injury, event, or disease, including in-service medication as alleged in the lay statements and testimony (2) proximately due to her service-connected panhysterectomy and endometriosis, and or (3) aggravated beyond its natural progression by those. Please address whether any of the breast cancer residuals are as likely as not the usual effects of medical and surgical treatments in service having the effect of ameliorating disease or other conditions incurred before enlistment. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.