200303-72526
200303-72526
| Board of Vet. App. | May 28, 2021Background
- Veteran served on active duty from September 1991 to April 1999 and filed claims for service connection for breast cancer (claimed as double mastectomy) and residual scars s/p bilateral mastectomy.
- The AOJ issued a January 2020 rating decision denying service connection; the Veteran elected the Board hearing docket in March 2020 and testified in January 2021.
- A December 2019 VA examination opined the Veteran’s breast cancer is a new, separate diagnosis and opined against causation by fibrocystic breast disease, relying in part on Mayo Clinic and Cancer Research UK materials.
- The Veteran submitted the same publications and treatment notes after the hearing; treatment notes document malignant phyllodes tumor and fibrocystic changes but do not link fibrocystic disease to cancer.
- The Board found the December 2019 opinion inadequate because it addressed only causation and did not address aggravation (whether fibrocystic disease aggravated the cancer), creating a pre-decisional duty-to-assist error.
- The Board remanded both claims: (1) for a VA addendum opinion addressing causation and aggravation (and baseline if aggravation found), and (2) for residual scars as inextricably intertwined with the breast cancer claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for breast cancer as secondary to service-connected fibrocystic breast disease | Veteran: breast cancer is secondary to and/or aggravated by her service-connected fibrocystic breast disease (recurring malignant tumors led to double mastectomy) | AOJ/VA: December 2019 examiner concluded breast cancer is a new, separate diagnosis and less likely than not caused by fibrocystic changes (citing medical literature) | Remanded — VA exam inadequate because it did not address aggravation; obtain addendum addressing causation and aggravation with rationale and testing as needed |
| Service connection for residual scars s/p bilateral mastectomy (secondary to breast cancer) | Veteran: scars result from treatment of service-connected breast condition/cancer | AOJ/VA: denied along with cancer claim | Remanded — claim is inextricably intertwined with remanded cancer claim; adjudicate after cancer claim is resolved |
Key Cases Cited
- El-Amin v. Shinseki, 26 Vet. App. 136 (medical opinion limited to causation is inadequate to assess aggravation)
- Barr v. Nicholson, 21 Vet. App. 303 (Secretary must provide an adequate examination or notify claimant why one cannot be provided)
- Harris v. Derwinski, 1 Vet. App. 180 (claims that are inextricably intertwined should be adjudicated together)