Citation Nr: 21025352 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-29 852 DATE: April 27, 2021 ORDER New and material evidence having been received, the claim for service connection for breast cancer is reopened. New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, including as secondary to breast cancer, is reopened. REMANDED Entitlement to service connection for breast cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to breast cancer, is remanded. FINDINGS OF FACT 1. In an April 2010 rating decision, the Regional Office denied the Veteran’s claims for service connection for breast cancer and adjustment disorder. This decision was not appealed and became final. 2. In October 2014, the Veteran filed a claim to reopen the claim for service connection for breast cancer and an anxiety disorder. Evidence received since the April 2010 denial relates to unestablished facts necessary to substantiate her claims for service connection. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for breast cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, including as secondary to breast cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1981 to March 1986 and from September 1987 to September 1992 and from July 2004 to August 2004 and during November 2004 and from September 2006 to October 2006 and from April 2007 to May 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and August 2017 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing before the Board of Veterans’ Appeals (Board). The Board notes that the Veteran initially filed a claim for service connection for breast cancer and a psychiatric disorder in July 2009. These claims were denied in an April 2010 rating decision. This decision was not appealed and became final. In October 2014, an application reopen these claims for service connection was received. Evidence received since the April 2010 denial includes new medical evidence, a timeline of the Veteran’s breast cancer development alongside her military service periods, positive medical opinions, and testimony in a Board hearing. This evidence is new to the record, as it suggests current disabilities or residuals thereof; relates to unestablished facts necessary to substantiate those claims for service connection; and raises a reasonable possibility of substantiating the claims. The claims are thus reopened. 38 C.F.R. § 3.156(a). The Veteran waived Regional office review of new or additional evidence during her March 2021 Board hearing; therefore, the Board will proceed with adjudication. The Veteran asserts that she suffers from an anxiety disorder as a result of her active service. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran’s claim to include any psychiatric disorder. As emphasized in Clemons, though a Veteran may only seek service connection for one psychiatric disorder, the Veteran’s claim cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed. REASONS FOR REMAND 1. Entitlement to service connection for breast cancer is remanded. The Veteran asserts that her breast cancer, which was diagnosed in September 2008, arose during or as a result of her service. The Board notes that the Veteran has provided a detailed timeline of the medical evidence concerning her breast cancer development and treatment alongside her periods of military service. See March 2021 timeline. The Veteran served on active duty from 1981 to 1986 and from 1987 to 1992, thereafter, she served in the Air National Guard, with periods of active service or active duty for training (ACDUTRA), including periods of service under Title 32 and Title 10. In March 1999, a left breast mammogram identified two clusters of abnormal tissue as punctate calcifications. The Veteran testified that these abnormalities were in approximately the same location as her later breast cancer in the left breast. See March 2021 Board hearing. In March 2002, a left breast mammogram found evidence of another abnormality with the potential of the abnormality being cancerous. During 2007, the Veteran served on Title 10 duty from April 25th to May 18th, for a period of 24 days, and from May 25th to June 18th. During 2008, the Veteran only served in periods of Title 32 duty, with no period of duty lasting 30 days or longer. The Veteran underwent periodic mammograms over the next few years until September 2008, when she was formally diagnosed with breast cancer. This was more than 12 months after her last period of qualifying active service; however, the Veteran asserts that her breast cancer was likely developing since at least 2002. The Veteran submitted a series of positive medical opinions by a physician who assisted in her breast cancer treatment. See, e.g., February 2021, July 2017, and July 2014 medical opinions. The physician opined that it was at least as likely as not that the breast cancer developed during a period of the Veteran’s active duty service. See February 2021 medical opinion. They also opined that the Veteran was likely as exposed to carcinogens due to working at Fairchild Air Force Base (AFB) from 1992 to 2010. Id. The Veteran also provided medical articles that discussed the much higher rate of breast cancer in the military population and the fact that it generally takes 6 to 8 years of development for cancer to be felt or detected by mammogram. See, e.g., February 2021 medical articles. The Board notes that, since 1992, the Veteran’s periods of qualifying active duty or ACDUTRA service constitute a relatively low percentage of her total time, and the medical articles indicate that cancer can take 6 to 8 years to be detectable by mammogram. The various medical opinions, while supportive, are by a single author who is not an oncologist and are largely identical in their conclusions and supporting rationales. The Veteran has also not been afforded a VA medical opinion on the nature and etiology of her breast cancer and its residuals. Consequently, the Board lacks sufficient evidence to conclude that her breast cancer at least as likely as not arose during or as a result of her active service. Accordingly, this claim must be remanded for additional development. 2. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to breast cancer, is remanded. The Veteran asserts that she experiences one or more acquired psychiatric disorders as a result of her active service, including as secondary to her breast cancer. The claim of entitlement to an acquired psychiatric disorder is inextricably intertwined with the service connection for breast cancer claim still on appeal, and accordingly must be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate action to attempt to verify all the Veteran’s periods of active service, ACDUTRA, and INACDUTRA with the United States Air Force and Air National Guard. Any records obtained must be associated with the Veteran’s claims folder. If the AOJ cannot verify the Veteran’s periods of active service ACDUTRA, and INACDUTRA or locate any records, it must specifically document the attempts that were made, and explain in writing why further attempts to verify her periods of active service, ACDUTRA, and INACDUTRA or locate any records would be futile. The AOJ must then: (a) Notify the Veteran and her representative of the evidence that it is unable to obtain; (b) Explain the efforts VA has made to obtain that evidence; and (c) Describe any further action it will take with respect to the Veteran’s claims. The Veteran and his representative must then be given an opportunity to respond. 2. Should the Veteran’s periods of active service, ACDUTRA, and INACDUTRA be verified, issue a memorandum for inclusion in the Veteran’s claims folder detailing each period of verified service, whether active service, ACDUTRA, or INACDUTRA, to include the month, day, and year. 3. Undertake development to obtain any records available to verify if the Veteran’s duties exposed her to carcinogenic chemicals or substances while stationed at Fairchild Air Force Base (AFB). The following records should be reviewed in determining whether the Veteran was exposed to potential carcinogenic agents: (a) the February 2021 medical opinion; (b) The Veteran’s statements, including the March 2021 Board hearing; (c) the March 2021 timeline. If more details are needed, contact the Veteran to request the information. The Agency of Original Jurisdiction should conduct any additional action necessary for independent verification of the Veteran’s purported exposures, to include follow-up action or the submission of additional requests for information to any other appropriate entity. All requests and responses received should be associated with the Veteran’s claims folder. If the search for corroborating information and/or records leads to negative results, the Agency of Original Jurisdiction should notify the Veteran and her representative and afford them the opportunity to respond. If there is still insufficient information to verify exposure, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service exposures. 4. After completion of the preceding directives, obtain a medical opinion from a medical professional with appropriate expertise on the nature and etiology of the Veteran’s breast cancer. The examiner must review the claims file, including the Veteran’s lay statements and Board hearing testimony, the supporting private medical opinions, medical articles, and the March 2021 timeline provided by the Veteran. After reviewing the Veteran’s electronic claims file and considering the Veteran’s contentions, the examiner should address the following question: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s breast cancer arose during or as a result of her active service or other period of qualifying service, including as due to any exposure to carcinogens during service? A complete rationale must be provided for all conclusions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. If accurate conclusions can be provided without an in-person examination, then an in-person examination is not required. 5. After the above development is completed, review the evidence of record and determine whether an additional VA examination and/or medical opinion/addendum medical opinion is required concerning the claim for service connection for an acquired psychiatric disorder. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.