Citation Nr: 22017041 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-36 230A DATE: March 23, 2022 ORDER Service connection for breast cancer and residuals of breast cancer is granted. REMANDED The appeal for a temporary total disability rating based upon treatment to include surgery and convalescence is remanded. FINDING OF FACT The Veteran's currently-shown breast cancer was initially manifested during active duty, although it was not diagnosed until after discharge. CONCLUSION OF LAW The criteria for service connection for breast cancer, and residuals of breast cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to August 1979, February 2006 to May 2008, and from July 2009 to August 2014. This matter comes before the Board of Veterans' Appeals (Board) from a February 2017 denial by the Agency of Original Jurisdiction (AOJ). The Veteran presented sworn testimony in support of her appeal during a March 2022 hearing before the undersigned Veterans Law Judge. Additionally, the Veteran presented further medical evidence for review by the Board during the hearing. The service connection claim can be granted in full, and further AOJ consideration is necessary on the remaining claim. As such, the Board may immediately decide the claim with no prejudice to the Veteran and a transcript of the hearing will be associated with the claims file at a later time. The Veteran is seeking service connection for breast cancer, which she has now experienced twice, in 2001 in between periods of active duty, and again in 2016, after her most recent period of active duty. She asserts that each instance of cancer were separate primary tumors and that, although the second episode was diagnosed after her discharge, that the cancer was initially manifested during active duty. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The medical evidence of record is voluminous and includes multiple medical opinions, from VA examiners and from the Veteran's own treating physicians. The Board has carefully reviewed the medical evidence, and acknowledges the complexity of the medical questions involved in this appeal. Upon review, the Board accords greater evidentiary weight to those recently-submitted opinions from the Veteran's own treating physicians: opinions dated in February and March 2022 from her treating oncologist, and another opinion dated in March 2022 from her treating surgeon. Additionally, a physician specializing in oncology who treated the Veteran during her first cancer has submitted a concurring opinion. These opinions were provided by physicians with particular expertise in breast cancer who are familiar with the Veteran, her medical history, and her course of treatment. The negative medical opinions were authored by medical reviewers of lesser familiarity with the Veteran herself and of lesser qualifications and expertise, to include one authored by a VA nurse. The positive nexus opinions are in concurrence that the second cancer was not a recurrence of the first cancer, but rather represented a second primary tumor. Furthermore, the authors agreed that the size of the tumor, 3 cm in diameter and Stage 3 in designation, diagnosed in July 2016, was such that the tumor likely was present but undiagnosed during the Veteran's most recent period of service, which ended in August 2014. One examiner explained that a negative mammography in service did not rule out a malignancy as the sensitivity of mammography is not 100% and that breast cancer can be radiologically occult. Notably, the Veteran's June 2013 mammography report cautioned her that a negative mammogram did not exclude the possibility of breast disease. Given this credible information, together with the Veteran's credible hearing testimony, the Board holds that the evidence supports the Veteran's claim for service connection for breast cancer, as initially manifested during her last period of service. Service connection for breast cancer, to include residuals thereof, is therefore granted. REASONS FOR REMAND The Veteran has additionally filed a claim for a temporary total disability rating based upon surgery and convalescence related to her recent breast cancer treatment. The AOJ denied this claim on the basis that absent a grant of service connection, a temporary total disability rating was inappropriate. Now that the Board has granted service connection for breast cancer and residuals of breast cancer, the AOJ is responsible for performing an initial review as to her eligibility for a temporary total disability rating under the provisions of 38 C.F.R. §§ 4.29 and 4.30, considering the medical evidence of record and developing further evidence to support her claim as necessary. Continued next page The matters are REMANDED for the following action: Perform all necessary evidentiary development to determine the Veteran's eligibility for a temporary total disability rating under the provisions of 38 C.F.R. §§ 4.29 and 4.30. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.