Citation Nr: 1325004 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-11 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of cancer of the upper aerodigestive tract, to include as due to exposure to Agent Orange. 2. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Drew Early, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen the Veteran's claim for service connection for residuals of cancer of the tonsil with neck dissection, to include as due to Agent Orange. The statement of the case issued in May 2010 reflects that the RO subsequently reopened the claim for service connection for residuals of cancer of the tonsil with neck dissection. Thus, it considered the claim without regard to finality of the previous determination, and decided the claim on the merits. Nevertheless, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issue of entitlement to an initial evaluation in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. By decision dated November 2004, the Board denied service connection for postoperative residuals of cancer of the tonsil with neck dissection. It was held that the tonsil cancer was initially demonstrated many years after service, and there was no probative evidence linking it to service. 2. The evidence added to the record since the November 2004 determination provides a reasonable possibility of substantiating the claim for service connection for postoperative residuals of cancer of the tonsil. 3. The Veteran had service in Vietnam. 4. There is a state of equipoise of the negative evidence and the positive evidence on the question of whether the Veteran's cancer of the upper aerodigestive tract is causally related to his exposure to Agent Orange in service. CONCLUSIONS OF LAW 1. The November 2004 Board decision that denied service connection for postoperative residuals of cancer of the tonsil is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The additional evidence received since the November 2004 Board decision is new and material to reopen the claim for service connection for postoperative residuals cancer of the tonsil. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Postoperative residuals of cancer of the upper aerodigestive tract were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to this claim, no further discussion of compliance with the duties to notify and assist is warranted at this time. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Analysis I. New and material evidence Once entitlement to service connection for a disability has been denied by a decision of the Board, that determination is final, unless reconsideration is ordered or clear and unmistakable error is found. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. In this case, the appellant did not appeal the Board's November 2004 decision which denied service connection for residuals of cancer of the tonsil, to include as due to exposure to Agent Orange. The law is clear that "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As noted above, in November 2004, the Board denied the Veteran's claim for service connection for postoperative residuals of carcinoma of the left tonsil, to include as due to Agent Orange. This determination was based on a finding that the Veteran did not have a respiratory cancer; carcinoma of the tonsil was not present during service or within one year of his discharge from service; and that carcinoma of the tonsil was not due to exposure to Agent Orange. The additional evidence includes statements from private physicians concluding that the Veteran's tonsil cancer was due to his exposure to Agent Orange during service. Thus, the additional evidence raises a reasonable possibility that the Veteran's tonsil cancer that is related to service, when considered in conjunction with the record as a whole. The Board concludes, therefore, that new and material evidence has been received, and the claim for service connection for cancer of the tonsil is reopened. II. Reopened claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war, and carcinoma becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam and elsewhere, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). The service treatment records are negative for findings concerning the tonsils, and there are no complaints relating to respiratory problems. On the separation examination in April 1971, the mouth and throat were evaluated as normal. The record establishes the Veteran served in Vietnam from February 1970 to April 1971. The Veteran was seen by W. S. Smith, M.D. in October 1998. It was noted the Veteran was postoperative radical neck dissection with a biopsy of the left tonsil for squamous cell carcinoma of the tonsil, metastatic to the neck. The Veteran had initially been seen with a very large mass in the left neck that was presumed to be a metastatic lesion. A triple endoscopy was done and no lesion was found. An excisional biopsy of the neck mass was reported to show metastatic squamous cell carcinoma. Magnetic resonance imaging of the area was done and a mass was noted in the left oropharynx area. An examination revealed a small lesion in the left tonsil and no other lesions in the nasopharynx, oropharynx or hypopharynx could be found. The Veteran was taken to the operating room, where it was planned to do a definitive operation for carcinoma of the tonsil with metastasis to the neck. However, a frozen section biopsy of the tonsillar lesion was reported as showing no neoplastic process. It was decided to treat this as a metastatic lesion to the neck from an unknown primary, and a left complete radical neck dissection was done. Subsequently, an examination on permanent section revealed squamous cell carcinoma of the tonsil. There was a small lesion that was not noted on the frozen section examination. It was decided since the lesion in the tonsil was small, and since there were no positive nodes in the neck, other than the one removed prior to the neck dissection, it was appropriate to treat this with radiation therapy and follow it closely. In a statement dated later in October 1998, M. E. Ercan, M.D., related the Veteran had been referred by Dr. Smith with a diagnosis of invasive squamous cell carcinoma of the left tonsil, stage IVa. It was reported the Veteran noticed a small mass in his left neck in August. A bronchoscopy, esophagoscopy and direct laryngoscopy was performed in September 1998. On bronchoscopy, "no abnormality was observed at other respiratory system, esophagoscopy did not show any abnormality as well as laryngoscopy." During the left radical neck dissection, a biopsy was obtained from the left tonsillar area. At radical neck dissection, 30 lymph nodes did not show any evidence of malignancy. The frozen section diagnosis was not significant for the left tonsillar area, but the permanent section revealed invasive squamous cell carcinoma. The impression was moderately differentiated squamous cell carcinoma of the left tonsillar area, metastatic to the left neck node. In letters dated July 2002 and March 2003, Dr. Smith wrote that the Veteran was diagnosed with squamous cell carcinoma of the tonsil with metastasis to the neck. He stated that if Agent Orange can cause squamous cell carcinoma in any portion of the upper airway/digestive tract, then it could certainly cause squamous cell carcinoma in every portion of the upper airway/digestive tract. Since Agent Orange has been found to be a causal factor in squamous cell carcinoma of the larynx, it certainly could be the cause for squamous cell carcinoma in the tonsil. He added in the March 2003 statement that if Agent Orange is implicated in carcinogenesis of the upper airway/digestive tract, the Veteran had a very legitimate medical claim for disability caused by his exposure to Agent Orange. In a statement dated May 2006, R. A. Van Tuyl, M.D., stated he had evaluated the Veteran the previous month. He noted the Veteran had been treated for squamous cell carcinoma of the left tonsil and upper larynx, metastatic to the neck. The physician stated Agent Orange is a "caused factor cancers of the head and neck and the cause of his cancer could very well be related to the exposure of Agent Orange." In a statement dated July 2007, D. C. Haley, M.D., related she had treated the Veteran since 2000, and knew of his history of tonsillar and laryngeal cancer. Dr. Haley asserted she believed the Veteran's carcinoma of the larynx could well be due to exposure to carcinogens in service. She added she believed the Veteran should be included in any group of veterans who qualify for laryngeal squamous cell cancer. She maintained the aerodigestive tract squamous cell carcinoma includes the tonsils. A VA physician reviewed the claims folder in July 2009. He maintained he was not aware of any medical evidence as to why, if the larynx could be involved by Agent Orange, that the tonsil would not be. He observed both sites are upper respiratory sites and would be equally exposed to the carcinogenic effects of Agent Orange. Dr. Smith wrote in March 2011 that he had been treating the Veteran since 1998 for metastatic disease of the neck. He related his surgical notes were limited in nature by discussing the tonsils from the perspective of immediate surgery. Dr. Smith opined the Veteran's metastatic lesions of the throat should be viewed as involving the tonsils and larynx and/or pharynx. He could not distinguish between these locations as to where the cancer might have originally manifested. He asserted that to a medical certainty, the Veteran suffered from laryngeal cancer. He further insisted it was at least as likely as not that the Veteran's upper aerodigestive tract squamous cell carcinoma, regardless of where it manifested, was attributable to the Veteran's exposure to Agent Orange in service. He based this assessment on his personal knowledge and treatment of the Veteran, a review of all available medical records, his experience and training as an otolaryngologist and specific medical evidence and research establishing Agent Orange as a causative factor in the production of squamous cell carcinoma. He concluded the Veteran should be considered as suffering from a carcinoma of the larynx, and that it is error to distinguish between the tonsils and the larynx as to the specific origin. In a statement dated November 2012, J. W. Bush, M.D. provided an opinion regarding the Veteran's cancer. He reviewed at least some of the medical records. He stated there was no compelling reason to believe that the tonsils and larynx would react differently when exposed to carcinogenic chemicals such as Agent Orange. Dr. Bush concluded it was more likely than not, even if it were assumed the Veteran's cancer was confined entirely to the tonsil, the etiology would still be due to his exposure to Agent Orange in service. Dr. Van Tuyl stated in November 2012 that the Veteran's exposure to Agent Orange was at least as likely as not the cause of his cancer. He acknowledged that other factors, including cigarette smoking, could contribute as well. The underlying issue in this case is whether the Veteran's exposure to Agent Orange during service caused his carcinoma of the tonsil. The Board points out that the opinions of record at the time of the previous Board decision were somewhat equivocal, the recent conclusions of Drs. Smith, Bush and Van Tuyl are somewhat more definitive and appear to suggest that the original site of the cancer may have been the larynx. Of special significance is the March 2011 statement from Dr. Smith. The record suggests that Dr. Smith performed the surgery in 1998. In his March 2011 statement, Dr. Smith states that his original surgical notes were limited in nature in discussing the tonsils from the perspective of immediate surgery. He further stated that he could not distinguish whether the cancer started in the tonsils, larynx and/or pharynx. A July 2007 statement from Dr. Haley seems to also reflect this viewpoint. The prior denial was based on evidence which showed the cancer to be cancer of the tonsil. This does not fall under the presumption for certain Vietnam veterans, and there was otherwise no competent evidence of a link to service. However, the evidence received from Dr. Smith as well as Dr. Haley and Dr. Van Tuyl not only raises a reasonable doubt as to the original location of the cancer, but also reflect opinions that the Veteran's cancer, regardless of location, was still related to herbicide exposure. The evidence is certainly not compelling in this case, but the Board finds that the newly received evidence does place the negative evidence and the positive evidence in equipoise, regardless of the location of the original cancer. Under such circumstances, reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the Board finds that service connection is warranted for the Veteran's residuals of upper aerodigestive tract cancer. ORDER Service connection for cancer of the upper aerodigestive tract is warranted. The appeal is granted to this extent. REMAND The statement of the case issued in March 2010 addressed the Veteran's claim for service connection for PTSD. A May 2012 rating decision granted service connection for PTSD, and assigned a 30 percent evaluation for it. The Veteran subsequently submitted a notice of disagreement with the evaluation assigned for PTSD. However, a statement of the case has not been issued on this matter. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). This matter must, accordingly, be remanded for issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case addressing the issue of entitlement to an initial evaluation in excess of 30 percent for PTSD. The appellant and his representative should be afforded the appropriate period of time to respond. This matter should be returned to the Board only if the Veteran or his representative submits a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs