DIABETES MELLITUS

JASON GEORGE · 2022 · Case ID: 22015279

DENIED

Summary

The veteran, who served from March 1988 to August 1997, appeals the denial of service connection for diabetes mellitus type II (DMII), glaucoma, and breast cancer. The Board found no direct service connection for DMII, as the veteran's service treatment records (STRs) were silent regarding diabetes or pre-diabetes, and post-service records did not establish DMII within the one-year presumptive period. A VA examiner opined that the DMII was less likely than not related to service, occurring after service and potentially linked to corticosteroid treatment for breast cancer, with no specific causal mechanism identified. The Board also denied secondary service connection for DMII, finding the veteran's claims that service-connected depression led to obesity, which then caused DMII, to be speculative and lacking medical basis. The Board found the veteran's lay statements regarding the etiology of DMII to be incompetent. For glaucoma, the Board found no evidence of onset during service, and while a July 2010 VA examiner suggested a possible link, this was deemed speculative as it was based on the veteran's report and inconsistent with objective STRs. A later VA examiner found glaucoma less likely than not related to service. The Board also denied secondary service connection for glaucoma due to DMII, as DMII was not service-connected and the examiner found no direct causal link. For breast cancer, the Board acknowledged the veteran's claims of exposure to ionizing radiation and hazardous substances, but found no evidence of radiation-risk activity or qualification as a radiation-exposed veteran. The Board denied service connection for breast cancer, finding the claims of toxic exposure speculative and lacking medical basis, with the VA examiner stating no nexus. The Board denied all claims.

Rationale

No direct service connection established.; Presumptive period for DMII not met.; VA examiner found DMII less likely than not related to service.; Secondary claim via obesity/depression found speculative and lacking medical basis.; Veteran's lay statements on etiology deemed incompetent.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-34 160A

Full Decision Text

Citation Nr: 22015279
Decision Date: 03/16/22 Archive Date: 03/16/22

DOCKET NO. 14-34 160A
DATE: March 16, 2022

ORDER

Service connection for diabetes mellitus, type II, (DMII) denied.

Service connection for glaucoma denied.

Service connection for breast cancer denied.

FINDINGS OF FACT

1. The Veteran's DMII has not been shown to be causally or etiologically related to any disease, injury, or incident during service; and it has not been shown to be related to a service-connected disability.

2. The Veteran's glaucoma has not been shown to be causally or etiologically related to any disease, injury, or incident during service; and it has not been shown to be related to a service-connected disability.

3. The Veteran's breast cancer has not been shown to be causally or etiologically related to any disease, injury, or incident during service.

CONCLUSIONS OF LAW

1. The criteria for service connection for DMII have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for breast cancer have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1988 to August 1997. This case is on appeal from a December 2010 rating decision. The case was previously before the Board in November 2018 and May 2021, at which time the Board remanded the case for additional development. The case returns to the Board at this time for further appellate review.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on
established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board notes that some of the Veteran's service treatment records (STRs) may be incomplete. In an October 2014 VA Form 9, the Veteran asserted that some of her STRs may have been lost. In a case like this in which a claimant's service records are unavailable through no fault of her own, there is a heightened obligation for the VA to assist a veteran in the development of her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995).

1. Service connection for DMII

The Veteran contends that she is entitled to service connection for DMII.

As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of DMII, as shown by a July 2021 VA examination.

In a July 2011 notice of disagreement (NOD), the Veteran stated that, during active service, she suffered from pre-diabetes with fasting blood sugars, which she was told were at borderline levels. She stated that blood tests were performed, which resulted in a notification of high blood sugar. The Veteran also noted that, after active service, a military endocrinologist told her that she should have been medicated when she was at these borderline levels of blood sugar because staying at that state without medication over the years may have already caused damage.

Looking at the Veteran's STRs, in a Report of Medical Examination from a July 1987 enlistment examination, the Veteran's urinalysis was noted to be positive for albumin, but the urinalysis was negative for sugar. In the Report of Medical History from the same July 1987 enlistment examination, the examiner noted that the Veteran had albuminuria. By contrast, in a Report of Medical Examination from a May 1991 periodic examination, the Veteran's urinalysis was negative for sugar and albumin. There was no specific mention of diabetes or pre-diabetes in the July 1987 enlistment examination or the July 1987 periodic examination.

In a July 1997 optometric examination, the Veteran reported that she did not have diabetes, but she reported a family history of diabetes through her mother. The Veteran also denied having diabetes at optometric examinations in December 1989 and September 1992 and at OB/GYN appointments in March 1996 and July 1997.

The Veteran's available STRs are otherwise silent for any complaint, diagnosis, or treatment of diabetes.

There is no diagnosis or treatment of DMII
1991 periodic examination, the Veteran's urinalysis was negative for sugar and albumin. There was no specific mention of diabetes or pre-diabetes in the July 1987 enlistment examination or the July 1987 periodic examination.

The Veteran's available STRs are otherwise silent for any complaint, diagnosis, or treatment of diabetes.

There is no diagnosis or treatment of DMII in the evidence of record from the year immediately following the Veteran's active service. Thus, service connection may not be presumed here based on manifestation of DMII within one year of discharge from active service. The one-year presumption under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112.

An October 2007 treatment note states that the Veteran was diagnosed with diabetes in 2003 during a time when she was undergoing chemotherapy for breast cancer.

In a July 2021 VA examination, the VA examiner reported a diagnosis of DMII from 2003. In a related medical opinion, the VA examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran's DMII occurred after active service. The VA examiner stated that there is no specific mechanism known to cause DMII in the record or known to Veteran. Therefore, the VA examiner found there was no nexus in this case.

No other evidence of record demonstrates a causal relationship between the Veteran's DMII and her active service.

The Board finds that the probative evidence of record does not demonstrate that the Veteran's DMII is causally or etiologically related to any disease, injury, or incident in service. Thus, based on the foregoing, the Board finds that service connection for the Veteran's DMII on a direct basis is not warranted.

The Board has also considered whether the Veteran's DMII is secondary to her service-connected depression or acquired psychiatric disorder. More specifically, the Veteran has asserted that her service-connected depression caused her to become obese, and this in turn led to her DMII.

In this regard, the Board notes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. However, in order to show secondary service connection is warranted under such a theory, a veteran must show (1) that her service-connected disability caused or aggravated her obesity and, if so, (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing or aggravating her claimed condition, and (3) whether the claimed condition would not have occurred or worsened but for obesity caused by the service-connected disability. Id; Walsh v. Wilkie, 32 Vet. App. 300 (2020).

As observed in the May 2021 Board remand, periodic physical fitness and weight evaluation records from the Veteran's active service indicate that the Veteran met military weight requirements from June 1989 through January 1991. During that period, her weight ranged from 146lbs. to 160lbs. However, after giving birth in late 1991 or early 1992, the Veteran's weight was recorded as 199 lbs. in June 1993. Thereafter, her weight ranged between 190-200 lbs. Despite referral to a weight management program, the Veteran continued to struggle with her weight. Multiple official reprimands were issued due to her failure to maintain weight-related standards. In January 1996, the Veteran was evaluated for irregular menstrual cycles. During the clinical interview, she reported increasing work-related stressors, a recent death in the family, and concern regarding her husband's deployment overseas. Her treating physician advised her to avoid forms of contraception that were likely cause hormonal fluctuations. Other medical records document a body mass index consistent with obesity. A field medical record indicates that the Veteran was assessed for a possible eating disorder in August 1996. During the clinical interview, the Veteran reported weight management struggles, purging, binging, and use of laxatives. In June 1997, a family practice clinical record notes an evaluation for extreme distress due to unsatisfactory progress with a required weight management program. The Veteran reported current symptoms including depression, suicidal thoughts, and an unstable mood
cycles. During the clinical interview, she reported increasing work-related stressors, a recent death in the family, and concern regarding her husband's deployment overseas. Her treating physician advised her to avoid forms of contraception that were likely cause hormonal fluctuations. Other medical records document a body mass index consistent with obesity. A field medical record indicates that the Veteran was assessed for a possible eating disorder in August 1996. During the clinical interview, the Veteran reported weight management struggles, purging, binging, and use of laxatives. In June 1997, a family practice clinical record notes an evaluation for extreme distress due to unsatisfactory progress with a required weight management program. The Veteran reported current symptoms including depression, suicidal thoughts, and an unstable mood. Possible diagnoses were listed as adjustment disorder with a depressed mood and a personality disorder not otherwise specified. The Board observes that she was described as "obese" in STRs. Occupational stress, depression, and anxiety due to her failure to meet military weight requirements were suggested as additional factors in the Veteran's struggles with weight.

In the May 2021 Board remand, the Board requested that a VA examiner provide a medical opinion concerning whether the Veteran's service-connected acquired psychiatric disorder caused her to become obese. If so, the Board asked the VA examiner to provide an opinion on whether the Veteran's obesity was a substantial factor in causing or aggravating her DMII and whether the DMII would not have occurred but for the obesity caused or aggravated by her service-connected acquired psychiatric disorder.

In the July 2021 VA medical opinion, the VA examiner found that the Veteran's DMII was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected depression. The VA examiner explained that depression does not cause diabetes, and obesity is one of many risk factors for the development of DMII, with genetic heritage being chief among such risk factors. The VA examiner observed that the Veteran's DMII started after being treated with corticosteroids for her breast cancer. The VA examiner stated that the Veteran's claim of a causal relationship between her diabetes and her obesity is purely speculative and without medical basis, and there is no specific mechanism or toxic exposure known to cause DMII in the record or known to the Veteran. The VA examiner observed that the Veteran developed obesity after her pregnancy, which is a common occurrence. The VA examiner also stated that the Veteran's claim that her obesity caused her diabetes is also purely speculative, thus generating a chain of speculative claims, each dependent on the previous. The VA examiner further explained that obesity is nearly universally the result of the consumption of excess calories, which is by far the most likely cause of the Veteran's obesity.

In response to the questions of whether the Veteran's service-connected acquired psychiatric disorder caused her to become obese and whether the Veteran's obesity was a substantial factor in causing or aggravating her DMII, the July 2021 VA examiner answered that many people with depression do not become obese, and many people who are obese are not depressed. The VA examiner stated that the causal connection between these two conditions in this case is merely speculative.

The Board finds that the probative evidence of record does not demonstrate that the Veteran's DMII is causally or etiologically related to the Veteran's obesity or her service-connected depression. Thus, based on the foregoing, the Board finds that service connection for the Veteran's DMII on a secondary basis is not warranted.

The Board has considered the Veteran's statements that her DMII was caused by or related to her active service or her service-connected depression, to include as due to obesity as an intermediate step. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the etiology or cause of her DMII. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of her DMII are not competent evidence and, consequently, are afforded no probative weight.

Based on the above, the Board finds that the weight of the probative evidence is against a
beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of her DMII are not competent evidence and, consequently, are afforded no probative weight.

Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for DMII on a direct or secondary basis. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and her claim of service connection for DMII must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

2. Service connection for glaucoma

The Veteran contends that she is entitled to service connection for glaucoma.

As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of bilateral glaucoma, as shown by an August 2021 VA examination.

In a July 2011 notice of disagreement (NOD), the Veteran stated that, during active service, she showed pre-glaucoma symptoms during an optical examination. She stated that an ophthalmologist told her that she was suffering from glaucoma, and he prescribed her medication.

In a December 2013 statement, the Veteran reported that she has had ophthalmic problems for years, and this was determined during active service. She stated that she was told after an examination at an Air Force hospital that she should tell each of her doctors that she was a glaucoma suspect.

In a VA Form 9, the Veteran reported that she was told during active service that she was in a pre-glaucoma stage, and she did not have this condition before active service.

The Veteran's available STRs are silent for any complaint, diagnosis, or treatment of glaucoma. In a Reports of Medical Examination from a July 1987 enlistment examination and a May 1991 periodic examination, the examiner found the Veteran's eyes, ophthalmoscopic condition, pupils, and ocular motility to be normal.

In optometric examination reports from December 1989 and September 1992, the Veteran was found to have myopia and astigmatism, and the Veteran reported that she had a family history of glaucoma through her mom. However, the examiners found that the Veteran herself did not have glaucoma. Similarly, in a July 1997 optometric examination, the Veteran reported that she did not have glaucoma, but she reported a family history of glaucoma through her mother. The evidence reflects that the Veteran wore contact lenses during active service to correct her myopia and astigmatism.

Looking at the Veteran's post-service medical records, in treatment records from October 2005, the Veteran is noted to be glaucoma suspect, and the examiner stated that the Veteran's pre-glaucoma condition was stable. The Veteran was also noted to be pre-glaucoma or glaucoma suspect in various treatment notes from between 2005 and 2010.

In a July 2010 VA examination, the Veteran reported that she was diagnosed with possible glaucoma while in service, and she was a glaucoma suspect due to a large and asymmetrical cup to disk ratio. The examiner stated that the glaucoma suspect is at least as likely as not due to or aggravated by military service.

As noted in the May 2021 Board decision, although the July 2010 VA examiner acknowledged a suggestion of glaucoma during the Veteran's active service, the condition was not formally diagnosed at the time of the examination. It also appears that the July 2010 VA examiner's opinion was based solely on the Veteran's report and not on the objective evidence of record, including consistent reports in the Veteran's STRs that she did not have glaucoma or pre-glaucoma. As such, the July 2010 VA examiner's suggested nexus between "glaucoma suspect" and the Veteran's active service was purely speculative.

In a March 2012 treatment note, the examiner noted that the Veteran had borderline glaucoma.

In an August 2013 VA POPC Optometry Note, the examiner gave an assessment of bilateral glaucoma. In an August 201
service, the condition was not formally diagnosed at the time of the examination. It also appears that the July 2010 VA examiner's opinion was based solely on the Veteran's report and not on the objective evidence of record, including consistent reports in the Veteran's STRs that she did not have glaucoma or pre-glaucoma. As such, the July 2010 VA examiner's suggested nexus between "glaucoma suspect" and the Veteran's active service was purely speculative.

In a March 2012 treatment note, the examiner noted that the Veteran had borderline glaucoma.

In an August 2013 VA POPC Optometry Note, the examiner gave an assessment of bilateral glaucoma. In an August 2016 VA Optometry Note, the Veteran reported a history of glaucoma, and she reported that her mother had glaucoma.

In an August 2021 VA examination, the VA examiner diagnosed the Veteran with bilateral glaucoma. The Veteran reported that she was a glaucoma suspect in the 1990s during active service, and the condition had progressed and worsened since onset. The Veteran reported that she was diagnosed with glaucoma around 2014.

In a related medical opinion, the August 2021 VA examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner observed that a July 1994 examination noted an increase in cup to disk ratio; and a visual field was ordered and found to be normal. The VA examiner stated that the doctor must have been concerned that the Veteran might have glaucoma and ordered the test. However, as indicated in the July 1994 medical record, no glaucoma was found.

No other evidence of record demonstrates a causal relationship between the Veteran's glaucoma and her active service.

The Board finds that the probative evidence of record does not demonstrate that the Veteran's glaucoma is causally or etiologically related to any disease, injury, or incident in service. Specifically, STRs do not reveal that glaucoma onset during service and the August 2021 VA examiner determined that glaucoma was not related to service. In doing so, the examiner explained that the July 1994 increase in disk cup ratio led to a visual field test which found the Veteran's vision to be normal and not indicative of glaucoma. Thus, based on the foregoing, the Board finds that service connection for the Veteran's glaucoma on a direct basis is not warranted.

The Board acknowledges the Veteran and her representative's statements asserting that the Veteran's glaucoma was due to her DMII. For example, in a March 2021 statement, the Veteran's representative asserted that the Veteran's glaucoma may be secondary to her DMII. However, as discussed in the previous section, the Veteran is not service connected for DMII. Thus, the Board cannot consider secondary service connection due to DMII in this case.

Even if the Veteran were service connected for DMII, the August 2021 VA examiner found that the Veteran's glaucoma was less likely than not (less than 50 percent probability) proximately due to, the result of, or aggravated by the Veteran's DMII. The VA examiner stated that, although diabetes is a risk factor for glaucoma, there is no direct known cause and effect relationship between the two.

The Board has considered the Veteran's statements that her glaucoma was caused by or related to her active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the etiology or cause of her glaucoma. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, 21 Vet. App. at 462 (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of her glaucoma are not competent evidence and, consequently, are afforded no probative weight.

Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for glaucoma. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit
addressed by lay statements. See Woehlaert, 21 Vet. App. at 462 (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of her glaucoma are not competent evidence and, consequently, are afforded no probative weight.

Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for glaucoma. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and her claim of service connection for glaucoma must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

3. Service connection for breast cancer

The Veteran contends that she is entitled to service connection for breast cancer. She asserts that her breast cancer may have been due to her in-service exposure to ionizing radiation and other hazardous substances.

As an initial matter, the Board finds that evidence of record reflects that the Veteran has a diagnosis of breast cancer, as shown by a July 2021 VA examination.

In general, service connection for a condition that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Under this section, if the veteran is deemed to be an "atomic veteran", a veteran that was exposed to radiation due to participating in radiation risk activity listed in the statute, and has one of the presumptive diseases listed under the section, then service connection is warranted subject to provisions of 38 C.F.R. § 3.307. Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if the condition at issue is a radiogenic disease, such as breast cancer. Third, if the Veteran is not entitlement to relief under sections § 3.309(d) and § 3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed Cir. 1994).

A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii).

If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2).

Under 38 C.F.R. § 3.311, when a veteran contends that a
38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2).

Under 38 C.F.R. § 3.311, when a veteran contends that a radiogenic disease, which first became manifest after service though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment is made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1).

In order to make such an assessment, the RO must request dose information as provided by 38 C.F.R. § 3.311(a)(2). 38 C.F.R. § 3.311(a)(2)(iii) requires that, in claims not based upon participation in atmospheric nuclear testing or Hiroshima and Nagasaki occupation, dose data normally include, but may not be limited to, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), STRs, and other records which may contain information pertaining to radiation exposure in service. All such records must be forwarded to the Under Secretary for Health, who will prepare and provide a dose estimate regarding the amount of radiation exposure. 38 C.F.R. § 3.311(a)(2)(iii). If exposure to ionizing radiation is identified, the Veteran's claim must then be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). That consideration includes determining if such radiation exposure resulted in the veteran's radiogenic disease.

In an October 2008 Radiation Risk Activity Information Sheet, the Veteran reported that, throughout her military career, she loaded aircraft with hazardous materials, chemical solvents, X-ray equipment, missiles, and missile guidance components. She also performed daily vehicle maintenance checks that involved exposure to oils, solvents, and fuels. The Veteran noted that these substances got on her clothing and skin, and they remained in contact with her skin during 8-to-12-hour shifts. She stated that she was exposed to radiation and chemicals between 1988 and 1992; and she was exposed to chemical solvents, vehicle fuels, and fumes between 1988 and 1997.

In an October 2008 statement, the Veteran reported that, in her work as a cargo handling specialist during active service, she loaded various materials and worked on aircraft with hazardous chemicals and radioactive materials daily. She loaded missile guidance units from F.E. Warren Air Force Base (AFB) that had radioactive components, hospital X-ray equipment, ammunitions, and radar equipment. She personally saw radioactive labeling on some parcels and in the manifests. She opined that, although individual parcels had non-reportable quantities (NRQ) marked for their individual increments, the other combined parcels on the aircraft in the confined cargo space at times increased her daily exposure amounts.

In an April 2010 U.S. Air Force (USAF) Memorandum, the USAF reported that they queried the occupational radiation exposure monitoring records in the USAF master radiation exposure registry (MRER) for the Veteran, but they found no external or internal radiation exposure data for the Veteran. The USAF also sent inquiry to the USAF Safety Center (AFSC) requesting any information that they might have regarding the Veteran's radiation exposure history. The AFSC reviewed the Veteran's official personnel records from the NPRC and did not find evidence of duties that would have involved working directly with nuclear weapons systems or components. As such, no dose was given for the Veteran.

In a July 2011 notice of disagreement (NOD), the Veteran stated that, while serving as an air transportation specialist during active service, she was responsible for loading classified cargo with radioactivity markings and missile guidance systems. She stated that she was also exposed to radar while on airdrop retrieval or while removing cargo from the cargo hold of L-1011 aircraft, as well as when she was in aircraft with numerous
Center (AFSC) requesting any information that they might have regarding the Veteran's radiation exposure history. The AFSC reviewed the Veteran's official personnel records from the NPRC and did not find evidence of duties that would have involved working directly with nuclear weapons systems or components. As such, no dose was given for the Veteran.

In a July 2011 notice of disagreement (NOD), the Veteran stated that, while serving as an air transportation specialist during active service, she was responsible for loading classified cargo with radioactivity markings and missile guidance systems. She stated that she was also exposed to radar while on airdrop retrieval or while removing cargo from the cargo hold of L-1011 aircraft, as well as when she was in aircraft with numerous pallets with NRQ of radioactive cargo on each pallet position. She also noted that she drove diesel 10k forklifts with open carriages indoors in the warehouse due to loading dangers on the ice outside and subzero temperatures that would expose her to carcinogenic fumes. She also stated that she was exposed to other chemicals, such as de-icing liquids, starting fluids aerosol, transmission fluids, brake and oil fluids, and diesel fuel. These were splashed on her skin, or she had to handle these chemicals and breath their vapors.

In an October 2014 VA Form 9, the Veteran reported that, during active service, she had day to day exposure to chemicals, solvents, fumes, and NRQ of radiation. At one base where she was stationed, she worked with fluids for de-icing aircraft, and she worked on ship missile guidance units daily. The aircraft she worked on at times had NRQ of radiation on board, but she stated that her daily exposure to these chemicals should be considered a possible catalyst. At another station, she worked at the cargo and passenger terminal; and she was in proximity to fuels and fumes. During her final assignment at Hurlburt Field AFB, she went to the drop zones where night operations were performed, and they used radar to site where they were. She stated that this exposed her to radar waves.

The Veteran's military personnel records reflect that she served as an air transportation journeyman and air cargo specialist during active service. The Veteran's in-service performance evaluations reflect that her duties included receiving, processing, and categorizing cargo; inspecting cargo offered for airlift; verifying eligibility, proper documentation, packaging, and marking; exercising the necessary safety and security precautions in handling hazardous, sensitive, and classified shipments; preparing and assembling aircraft loads; transporting loads to and from aircraft and storage areas; and operating materials handling equipment to load and unload aircraft. In a June 1991 occupational health examination, it was noted that log air shop personnel are potentially exposed to occupational hazards, including carbon monoxide, anti-icing agents, and diesel fuel gases.

The Veteran's STRs show that the Veteran underwent numerous physical examinations, including gynecological evaluations. Beginning in or around 1991, the Veteran frequently complained of gynecological symptoms. Specifically, the record indicates that the Veteran was granted a physical profile due to pregnancy from November 1991 through June 1992. She reportedly suffered a miscarriage in 1991, followed by a live birth in 1992. However, there is no indication of any diagnosis or treatment of breast cancer during the Veteran's active service.

In the Reports of Medical Examination from a July 1987 enlistment examination and a May 1991 periodic examination, the examiner found the condition of the Veteran's chest (including the breasts) to be normal.

In OB/GYN treatment notes from September 1988, March 1991, January 1994, and February 1995, the examiner found that the Veteran had no masses, no nipple discharge, and no axillary adenopathy.

In a March 1996 OB/GYN note, the Veteran reported she had not had cancer or tumors. She reported that she has had lumps in her breast or nipple discharge, but the examiner opined that these may have been swollen sweat glands. The examiner found that the Veteran's breasts had no masses or nipple discharge.

In a July 1997 GYN annual examination, the Veteran reported that she had not ever had cancer or tumors. She stated that she had a slight lump in her breast or nipple discharge, but the examiner found no masses or nipple discharge.

There is no other indication in the Veteran's STRs of any complaint, diagnosis, or treatment of breast cancer.

Looking at the Veteran's post-service treatment notes, the Veteran underwent an annual mammography examination in February 2003. Diagnostic imaging revealed the presence of a well-demarcated nodule, measuring at 10 mm in the right upper-outer quadrant of the right breast. A smaller nodule, measuring at 6 x 8 mm was also observed.

In April 200
In a July 1997 GYN annual examination, the Veteran reported that she had not ever had cancer or tumors. She stated that she had a slight lump in her breast or nipple discharge, but the examiner found no masses or nipple discharge.

There is no other indication in the Veteran's STRs of any complaint, diagnosis, or treatment of breast cancer.

In April 2003, a biopsy of the right breast documented a tumor measuring at 10.3 x 4.5 x 1.5 cm. A diagnosis of infiltration ductal carcinoma, grade III, impacting the right beast was indicated. An April 2003 treatment note indicated that the Veteran underwent a successful surgical resection of a suspicious nodular density in the right upper quadrant of the right breast.

The Veteran's medical records indicate that the Veteran underwent a lumpectomy, radiation, and chemotherapy, as well as a right breast mastectomy and reconstruction in August 2007. She also underwent a left breast reduction mammoplasty in March 2008.

Treatment records from 2008 indicate that the Veteran felt a lump in her left breast, but this was found to be most consistent with scarring and architectural distortion from the March 2008 left breast reduction mammoplasty.

In a September 2014 OB/GYN Consult, the Veteran reported that she was diagnosed in 2003; and she had a lumpectomy, radiation, and chemotherapy, as well as a reduction mammoplasty with reconstruction of the right breast from abdominal tissue. The examiner noted that the Veteran had reduction scars and a right axillary scar with no masses or nodes.

In a July 2021 VA examination, the VA examiner reported that the Veteran had a diagnosis of breast cancer of the right breast from 2003. The Veteran reported that she underwent radiation and chemotherapy, and she had a right mastectomy in 2008. In a VA examination for scars from the same day, it was noted that the Veteran had a right breast mastectomy in 2007 and a left breast reduction in 2008.

In a related medical opinion, the VA examiner found that the Veteran's breast cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the Veteran's claim of breast cancer being caused by toxic exposure during service is mere speculation without medical basis, and no specific mechanism or toxic exposure known to cause breast cancer is in the record or known to Veteran. The VA examiner explained that records indicate the Veteran was not exposed to radiation; and the Veteran's remaining claims of toxic exposures are exposures to common non-toxic chemicals, which is a common occurrence in military and non-military personnel. The VA examiner stated that the connection between such exposures and Veteran's breast cancer is purely speculative and does not constitute a nexus. Such speculative claims could be made by every veteran for every medical condition, and such arbitrary claims cannot be logically refuted as they are arbitrary by their nature. Therefore, the VA examiner found that there is no nexus in this case.

No other evidence of record demonstrates a causal relationship between the Veteran's breast cancer and her active service.

The Board acknowledges that breast cancer is one of the diseases listed as presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). However, the evidence of record does not indicate that the Veteran qualifies as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) who participated in a radiation-risk activity.

The Board finds that the probative evidence of record does not demonstrate that the Veteran's breast cancer is causally or etiologically related to any disease, injury, or incident in service, to include in-service exposure to radiation or hazardous substances. Thus, based on the foregoing, the Board finds that service connection for the Veteran's breast cancer is not warranted.

The Board has considered the Veteran's statements that her breast cancer was caused by or related to her active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the etiology or cause of her breast cancer. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, 21 Vet. App. at 462 (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the nature and etiology of her breast cancer are not competent evidence and, consequently, are afforded no probative weight.

Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for breast cancer. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and her claim of service connection for breast cancer must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

Jason George

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Dawn A. Leung, 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.

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