Citation Nr: 1336849	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  12-14 881	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for head/neck cancer for substitution or accrued benefits purposes.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from December 1965 to February 1969.  

This is a certified substitution case.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2010, February 2010, and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. 

The Veteran's spouse, the appellant in this case, then requested that she be substituted for her husband for the purpose of processing his claim to completion.  In September 2011, the RO issued a letter indicating that the appellant was eligible for substitution, and granted her motion.

The Veteran's underlying service connection claim for cancer has been variously characterized to include thyroid cancer, salivary gland cancer, parotid gland cancer, throat cancer, and lung cancer.  The Board finds that more generalized identification of entitlement to service connection for head and neck cancer best identifies the Veteran's underlying service connection claim.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

In the January 2010 and February 2010 rating decisions the RO declined to reopen the claim.  Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92; Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for head/neck cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The claim of entitlement to service connection for thyroid cancer was denied in an unappealed, April 1994 rating decision.

2.  The evidence received since the April 1994 rating decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

New and material evidence has been presented to reopen a claim of entitlement to service connection for head/neck cancer.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Legal Criteria

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

The RO initially denied service connection for thyroid cancer in an April 1994 rating decision.  The Veteran was notified of the denial in a letter dated that same month.  He did not appeal the denial or submit any additional pertinent evidence within the appeal period. 

The basis for the 1994 denial was that there was no evidence of in-service treatment for a thyroid disorder or cancer, nor was there a clinical link between his current thyroid cancer and noise exposure during service.  

The Veteran filed a claim to reopen in November 2009, which was denied in a January 2010 rating decision and again in a February 2010 rating decision.  Prior to the end of appeal period following the February 2010 decision, there was additional pertinent evidence submitted (namely, VA treatment records).  The Board notes that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b), see also King v. Shinseki, 23 Vet. App. 464, 466 (2010) (the Court interpreted 38 C.F.R. § 3.156(b), as preventing a decision from becoming final until a decision is made on new and material evidence received within one year of notice of the decision).  Thus, the Board finds that the February 2010 rating decision was not final and was still pending at the time of the Veteran's death.  This is important because one of the main reasons for reopening is a November 2009 opinion from a private treating professional as is more fully discussed below.  

The medical evidence of record in April 1994 included the Veteran's service treatment records (STRs), the Veteran's own statements, and post-service treatment records showing treatment for thyroid cancer.  There were no clinical records showing any link between the Veteran's claimed thyroid cancer and his military service. 

Evidence received since April 1994 most importantly includes a November 2009 statement from the Veteran's treating otolaryngologist finding a possible link between the Veteran's salivary gland cancer and exposure to Agent Orange.  

A medical link between the Veteran's head/neck cancer and his presumed in-service exposure to Agent Orange was an element of service connection that the RO found was not met in April 1994.  Without the need to discuss each new piece of evidence in detail, the Board finds that the recent private and VA treatment records and the November 2009 opinion are new and material as they relate to a previously unestablished element of entitlement to service connection-namely, it supports the presence of head/neck cancer and a possibility that it is related to service.  Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for head/neck cancer.



ORDER

The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for head/neck cancer is granted.


REMAND

The Board finds that further development is required before the claim of entitlement service connection for head/neck cancer is adjudicated.

In light of the reopening above, the Board finds that the Veteran's claims file should be forwarded to a VA examiner for an opinion with respect to the claim of service connection for head/neck cancer.  

There is no question that the Veteran had service in Republic of Vietnam and is presumed to have been exposed to Agent Orange.  Indeed, the type of cancer that caused the Veteran's demise is not considered presumptively related to Agent Orange.  Nevertheless, there is some evidence of record that the salivary gland aspect of the Veteran's cancer may have been related to his presumed exposure to herbicides.  As such, the Board finds that a VA opinion with respect to the etiology of the Veteran's head/neck cancer should be obtained.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The claims file should be forwarded to a VA examiner with the appropriate expertise for an opinion regarding the etiology of the Veteran's head and neck cancer.  The claims file, and any pertinent evidence in electronic format, should be provided to the examiner.  

Based upon a thorough claims file review, the examiner is asked to provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's head and neck cancer is etiologically related to service, including his presumed exposure to Agent Orange or other herbicides.  

The examiner is asked to specifically comment on the November 2009 opinion from the treating otolaryngologist.

All opinions must be supported by a thorough and detailed rationale in a typewritten report.

2.  The RO or the AMC should also undertake any other development it determines to be warranted.

3.  Then, the RO or the AMC should readjudicate the appellant's claim.  If the benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case should be issued to the appellant and she should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters 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).




______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs