Citation Nr: 22018244 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-00 182 DATE: March 28, 2022 REMANDED Entitlement to compensation under 38 U.S.C. §1151 for breast cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1974 to March 1994. The Board thanks her for her years of dedicated service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for further development in October 2017 and April 2021. Unfortunately, the Board finds that a third remand is necessary, as the June 2021 VA examination and subsequent addenda did not comply with the Board's April 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2021, the Board remanded after finding that the prior VA examination was inadequate, because: [T]he August 2020 VA examiner failed to discuss in sufficient detail the Veteran's history of complaints of right-sided pain, as set forth above herein. Moreover, the August 2020 VA examiner did not address her lay contentions that her VA doctors wrongly dismissed her complaints of right-sided pain[,] and they should have performed an ultrasound in 2007 following her first abnormal mammogram. The Board also notes that the August 2020 VA examiner did not discuss the Veteran's April 2009 CT exam results or whether that CT scan was timely performed. The June 2021 VA examination did not correct these deficiencies. The Veteran's complaints of pain were, again, not mentioned, and the examiner did not address whether an ultrasound ought to have been conductedsaying only that it was a reasonable judgment call for VA providers not to do "invasive procedures" to look for cancer. The examiner also jumped straight to discussing whether VA providers exhibited carelessness, negligence, lack of proper skill, error in judgement, or similar faultwithout first addressing whether VA failed to diagnose the Veteran's cancer (i.e., whether it was present and missed). The RO caught this deficiency, and requested an addendum to the June 2021 examination. In the June 2021 addendum, the examiner still made no mention of the Veteran's complaints of pain. BASED ON THE REVIEWED RECORDS CLAIMANT WAS SEEN AS EARLY AS 1998 FOR MAMMOGRAM WITH NEGATIVE RESULT. SEVERAL MAMMOGRAMS WERE DONE IN 99, 2 TIMES IN MAY 2007, CT SCAN ON APRIL 2009 WAS DONE WHICH DID NOT SHOW CONFIRMATORY RESULT. IN MY OPINION THE VA DID NOT MISS A DIAGNOSIS BECAUSE A MAMMOGRAM IS AN X-RAY PICTURE OF THE BREAST AND COMMONLY USED TO LOOK FOR EARLY SIGNS OF BREAST CANCER. BASED ON THE REVIEWED RECORDS CLAIMANT WAS SEEN AS EARLY AS 1998 FOR MAMMOGRAM WITH NEGATIVE RESULT. SEVERAL MAMMOGRAMS WERE DONE IN 99, 2 TIMES IN MAY 2007 AND CT SCAN ON APRIL 2009 WAS DONE WHICH DID NOT SHOW CONFIRMATORY RESULT. VA HAS PROVIDED NECESSARY TEST BUT TESTS DID NOT SHOW EVIDENCES THAT INDICATE POSITIVE FOR BREAST CANCER. [T]herefore VA did not fail to timely diagnose the Veteran's breast cancer prior to 2009. The RO gave the examiner one more opportunity to correct the deficient opinion, and in July 2021, they submitted a second addendum: MEDICAL OPINION REMAINS THE SAME. PAIN IS A SUBJECTIVE SYMPTOM AND THE MORE DEFINITIVE APPROACH TO DETECT A DISEASE IN THE BREAST IS THE MAMMOGRAM, WHICH WAS PERFORMED ON THE SAME PERIOD THAT THE VETERAN COMPLAINED OF RIGHT-SIDED BREAST PAIN. While this third opinion did, finally, mention the Veteran's right-sided breast pain, the Board still does not accept it as adequate. The examiner's statement that a mammogram is "the more definitive approach" to detecting disease explains why the Veteran was not diagnosed with breast cancer based on complaints of pain alone; it does not explain why tests other than the mammograms were not run, whether anything should have been done to investigate the Veteran's recurring pain (such as an ultrasound). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician, who has not already provided an opinion in this case, regarding VA's diagnosis and treatment of the Veteran's breast cancer. After reviewing the entire claims file, the examiner should answer the following: (a) Did VA fail to timely diagnose the Veteran's breast cancer? (b) If the answer to question (a.) is yes, was the failure to timely diagnose and treat the breast cancer the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on VA's part? The examiner should specifically address whether the Veteran's repeated complaints of right-sided breast pain should have resulted in further testing, such as a breast ultrasound. The examiner should specifically address the significance of the April 2009 CT scan on the Veteran's abdomen, and the May 2007 mammogram results indicating possible irregularities in her right breast. (c) If the answer to question (b) is yes, did VA's failure to diagnose and treat the Veteran's breast cancer proximately cause the continuance of the natural progress of the disease, including its development to the second stage of breast cancer? The examiner must review the entire claims file, and the opinion must reflect consideration of Veteran's full medical history and the record as a whole. (Continued on the next page) The examiner must provide a complete rationale for all opinions, supported by evidence and citing any records or medical literature relied upon. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.