Citation Nr: 21039734 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-00 412 DATE: July 1, 2021 ORDER Entitlement to service connection for right breast cancer, including as due to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied. Entitlement to service connection for residuals of a tailbone injury is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's breast cancer had its onset in service and is otherwise related to service, to include as due to environmental exposures incurred in Southwest Asia during the Gulf War. 2. A tailbone disability was not documented during service, nor was arthritis shown within one year of separation from service, and the preponderance of the evidence is against finding that the Veteran suffers from a disability related to his tailbone that began in service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right breast cancer have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to service connection for residuals of a tailbone injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2008 to September 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. As a preliminary matter, the Board notes that the Veteran filed a separate claim for entitlement to compensation under 38 U.S.C. § 1151 for a tailbone/back injury. This claim was denied in September 2019 rating decision. This matter is not before the Board at this time and will not be addressed herein. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (a)(2)(i). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). There must be objective indications of a qualifying chronic disability, which include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(1) and (3). A disability is considered chronic if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Additionally, service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310. To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service for right breast cancer. The Veteran contends that her right breast cancer is related to Implanon, a form of birth control that she took during active service, or to exposure to environmental hazards during active service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Veteran submitted an article suggesting a link between hormonal birth control, like Implanon, and breast cancer. The Veteran submitted an article regarding breast density as a predictor of breast cancer risk. The Veteran also submitted an article associating toxic exposure in Iraq with breast cancer. The Veteran's DD-214 confirms that the Veteran had active duty service in the Southwest Asia Theatre of Operations during the Persian Gulf War. Accordingly, the Board finds that the Veteran is considered a Persian Gulf Veteran for purposes of the applicability of 38 C.F.R. § 3.317. However, the Board finds that presumptive service connection, based on her service in Southwest Asia, is not warranted because the Veteran is diagnosed with a clinically known disease, breast cancer, and the medical evidence does not otherwise persuasively show that her breast cancer is related to an undiagnosed illness or medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317 (a). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's service treatment records do not show a diagnosis for, complaints of, treatment for, or symptoms of breast cancer during active service. The Veteran's records show that the Veteran was provided an Implanon birth control implantation on July 24, 2008. The Veteran was provided mammography examinations in November 2011, January 2010, and September 2011. All three were negative for evidence of breast cancer. Abnormalities were identified in the Veteran's right breast in a November 2012 mammogram and additional imaging and testing was obtained. The Veteran was diagnosed with right breast cancer and underwent a bilateral mastectomy, right axillary sentinel lymph node biopsy and chemotherapy in 2013. Breast implants placed at the time of the mastectomies were complicated by necrosis/infection requiring their removal. Bilateral breast reconstruction using abdominal grafting was later performed. The Veteran was provided a VA examination for breast conditions and disorders in August 2019. The Veteran was diagnosed with right breast cancer and the examiner reviewed her treatment history. The examiner noted Implanon implantation on July 24, 2008, with subsequent treatment records through 2012 noting the implant. The examiner noted that a palpable breast mass was found in November 2012 for which a mammography was done showing a suspicious mass to the right breast and surgical biopsy of the right breast mass confirmed ductal carcinoma. The examiner noted that mammograms from 2009-2011 were negative. The examiner comprehensively addressed the articles submitted by the Veteran. The examiner explained that, according to medical literature, there is a slight increased risk of breast cancer in patients exposed to estrogen-based/combination hormonal birth control treatment. However, the examiner found that the Veteran was prescribed an Implanon implant, a progestin only hormonal treatment for birth control. The examiner provided and reviewed medical research and studies that concluded that the data for progestin-only contraceptives are inadequate to make a definitive conclusion regarding the risk of breast cancer. The examiner also noted that other risk factors for breast cancer include increased age, race, family history, genetic mutations, elevated endogenous estrogen exposure, and dense breast tissue. The examiner noted a positive family history of breast cancer in a maternal aunt. The examiner concluded that the evidence to date is lacking in support of a causal association between progestin-based hormonal contraceptives and the risk of breast cancer. The examiner found that it is less likely than not that the Veteran's diagnosis of breast cancer was incurred in or caused by the birth control implant prior to/during her active duty service period. The examiner also found that, as the Veteran's diagnosis of breast cancer was made in 2012 with previously normal mammograms of record, it is less likely than not that the Veteran's breast cancer was incurred within a year after her discharge. The Board notes that the August 2019 VA examination did not address that Veteran's contention regarding an association between the Veteran's breast cancer and exposure to environmental hazards in the Southwest Asia Theater of Operations during the Persian Gulf War. Accordingly, as instructed by the September 2018 Board remand, the RO obtained an addendum opinion in November 2019 to address the Veteran's contentions regarding environmental exposure. The November 2019 addendum opinion found that it is less likely than not (less than 50 percent probability) that the Veteran's breast cancer was incurred during active service or related to her exposure to inhaling fumes and other chemicals from burning materials while on deployment in Iraq from November 2008 to August 2009. The examiner noted that the article provided by the Veteran made no reference to a direct association between exposure to inhaled fumes/chemicals from burn pits and the development of breast cancer. The Veteran provided medical literature and research that found that there is inadequate/insufficient evidence to determine whether an association exists between deployment to the Gulf War and any cancer. The examiner found that it is less likely than not that the Veteran's breast cancer was related to exposures specific to her Gulf War service, including burn pit fumes/chemical exposure. The August 2019 and November 2019 VA examiner thoroughly reviewed the Veteran's service records and medical history, reviewed the relevant medical literature, including the submissions from the Veteran, and provided conclusions based on sufficient facts and data. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No other etiological opinions regarding the breast cancer are of record. The medical findings provide highly probative evidence against the claim that the Board cannot ignore. These findings provide a clear basis for the opinion. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's breast cancer is not etiologically related to her service, including as due to exposure to environmental hazards during service in the Southwest Asia Theater of Operations during the Persian Gulf War and to the use of hormonal birth control during service. Here, there is no competent evidence of a nexus between the Veteran's breast cancer and service. The only evidence of record in support of such a nexus is the Veteran's lay opinion that her breast cancer is due to service. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between her breast cancer, diagnosed several years after service, and service are of little probative value. Again, there is no competent and probative evidence to show that the Veteran had breast cancer during or contemporaneous with service and no competent and probative evidence that her current condition is related to service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for right breast cancer and the residuals thereof and that the claim must be denied. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for residuals of a tailbone injury. The Veteran contends that she injured her tailbone in training during active service. The Veteran attributed her tailbone pain to falls and sit-ups. Additionally, the August 2019 VA examination noted that arthralgia (joint pain) is a known side effect of Anastrozole, one of the Veteran's medications for breast cancer. However, as the above decision did not award entitlement to service connection for breast cancer, a claim for service connection for tailbone pain as secondary to breast cancer is not available at this time. The Board notes that the Veteran also has a pending claim for entitlement to compensation under 38 U.S.C. § 1151 for a tailbone injury. The Veteran contends that she injured her tailbone when she fainted during a mammogram at VAMC in November 2009, following her separation from active service. As noted above, the Veteran's claim under 38 U.S.C. § 1151 is not before the Board at this time. The Veteran's service treatment records do not show complaints, treatment, symptoms, or diagnosis of a tailbone injury or condition during active service. In a July 2009 post-deployment heath assessment, the Veteran endorsed several symptoms, including muscle aches; swollen, stiff, or painful joints; and back pain back pain. In November 2009, following the fainting incident, the Veteran was provided an x-ray of her sacrum and coccyx. No evidence of acute fracture was found and injury to the coccyx (tailbone) was not noted. The Veteran received urgent care treatment for her fainting incident. A November 11, 2009, urgent care treatment record noted that x-rays of the coccyx showed no definite fracture lines. The Veteran was assessed with coccygodynia. The Veteran was provided a prescription for pain relief and recommended a donut cushion. In a February 2010 post-deployment health reassessment, the Veteran denied muscle aches; swollen, stiff, or painful joints; and back pain. The Veteran noted that she was injured during deployment but responded that she was no longer having problems related to this injury. In a December 2013 nursing evaluation, the Veteran complained of tailbone pain and noted that she previously injured her tailbone at a VAMC while having a mammogram. The Veteran described her tailbone pain as throbbing and radiating. She stated that her tailbone pain had its onset in 2010. In a January 2017 physical therapy outpatient initial evaluation, the Veteran provided a history of falling off a truck and landing on her tailbone in basic training in 2006-2007. The Veteran also stated that she has been able to manage her tailbone pain until she had radiation treatment. She stated the radiation treatment exacerbated her condition and has not settle down. In a January 2017 nursing evaluation, the Veteran stated that her tailbone pain had its onset during service. The Veteran was provided a VA examination for back conditions in August 2019. The examiner diagnosed the Veteran with degenerative arthritis of the spine and coccygodynia. The examiner provided a detailed and comprehensive review of all records related to the Veteran's back and tail bone conditions. The examiner found that the Veteran's tailbone condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, while the Veteran endorsed back pain in her July 2009 post-deployment health assessment, there was no evidence of chronicity of the back pain as evidence by subsequent documentation where she denied chronic pain a few months later in a November 2009 behavioral health clinic note and denied joint aches and back pain in a February 2010 post-deployment health reassessment. The examiner concluded that the evidence does not support chronicity or continuity of the July 2009 post deployment complaints and does not show evidence of chronic back or tailbone pain that is due to service. The August 2019 VA examiner thoroughly reviewed the Veteran's service records and medical history, reviewed the relevant medical literature, and provided conclusions based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves, supra. In regard to presumptive service connection, there is no evidence that arthritis of the tailbone manifested within one year of the Veteran's separation from service. Thus, service connection cannot be established on a presumptive basis under §38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307. Nor is service connection based on continuity of symptomatology applicable in this case, as the record does not show that the Veteran's condition was noted during service. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b). The Board notes that no etiological opinions of record have associated the Veteran's tailbone condition with active service. The medical findings provide highly probative evidence against the claim that the Board cannot ignore. These findings provide a clear basis for the opinion. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's tailbone condition is not etiologically related to her service. Here, there is no competent evidence of a nexus between the Veteran's tailbone condition and service. The only evidence of record in support of such a nexus is the Veteran's lay opinion that her tailbone condition is due to training. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between her tailbone condition and service are of little probative value. A tailbone disability was not documented during service, nor was arthritis shown within one year of separation from service, and the preponderance of the evidence is against finding that the Veteran's disability began during active service or is otherwise related to an in-service injury or disease. Again, there is no competent and probative evidence to show that the Veteran had a tailbone condition during service and no competent and probative evidence that her current condition is related to service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a tailbone disability and that the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg, 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.