Citation Nr: 18142279 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-07 301 DATE: October 15, 2018 ORDER The service connection claim for metastatic cancer to the head and neck, to include as due to herbicide agent exposure, is reopened. REMANDED Service connection for metastatic cancer to the head and neck is remanded. Service connection for right shoulder bone cancer is remanded. FINDING OF FACT An unappealed September 2011 rating decision denied service connection for lymphoma (with the same factual basis and medical diagnosis as the current claim for service connection for throat cancer) because there was no causal linkage with the Veteran’s service and because the Veteran’s diagnosed cancer is not presumed under 38 C.F.R. § 3.309(e) to be related to established herbicide agent exposure. Evidence received since the September 2011 denial, including the Veteran’s May 2018 Board of Veterans’ Appeals (Board) hearing testimony linking his claimed cancer to service-connected prostate cancer, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has been received; the claim for service connection for metastatic cancer to the head and neck may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to November 1965. These matters are before the Board on appeal from a January 2016 rating decision. In May 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In the January 2016 rating decision, the Regional Office (RO) adjudicated the Veteran’s claim for service connection for throat cancer as a new claim. However, the Board notes the RO denied an original claim for service connection for “lymphoma” in a September 2011 rating decision. The Board finds that the Veteran’s current throat cancer claim stems from the same factual basis and medical diagnosis as the lymphoma claim, and thus, is indistinguishable from it. Indeed, the Veteran has submitted the same pathology report and associated records as evidence of his claimed cancer (showing the medical diagnosis as metastatic cancer to the head and neck). As such, the Board must consider the throat cancer service connection claim as a request to reopen the previously denied claim for service connection for lymphoma. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (defining “factual basis” of a Veteran’s claim for service connection as the Veteran’s underlying disease or injury). The Board also notes the August 2016 rating decision denying service connection for another claim for the same cancer, this time described as a claim for service connection for head and neck cancer. The Board assures the Veteran that all concerns related to the 2010 cancer diagnosis and subsequent treatment will be addressed here. The Board has recharacterized the issue as whether new and material evidence has been submitted to reopen the claim for metastatic cancer to the head and neck, and will address this claim here together with the original claim for service connection for right shoulder bone cancer. Whether new and material evidence has been received to reopen the claim for service connection for metastatic cancer to the head and neck. For the reasons outlined above, the claim for service connection for metastatic cancer to the head and neck is reopened. REASONS FOR REMAND Service connection for metastatic cancer to the head and neck is remanded. Service connection for right shoulder bone cancer is remanded. A remand is necessary to afford the Veteran a VA examination with an oncologist because the record does not contain sufficient evidence for the Board to decide the claims. The matter is REMANDED for the following action: 1. Obtain all updated records of VA treatment (from June 2016 to present). 2. Send the Veteran a letter a) asking him to identify all treatment providers for his prostate, head and neck, and right shoulder bone cancers, and to authorize VA to obtain available records for association with the claims file, to include updated authorizations for ALL records from Dr. R. R. (surgeon) and Dr. D. M. (oncologist) AND b) inviting the Veteran to submit any medical evidence supporting his assertions that his head and neck cancer and/or right shoulder bone cancer are related to prostate cancer or otherwise to his service, to include herbicide agent exposure. Advise the Veteran that general information (such as that already submitted from www.webmd.com) is not sufficient to show that the claimed conditions are related to prostate cancer; rather, as discussed during the Board hearing, the Veteran should try to submit letters from his doctors stating that IT IS AT LEAST AS LIKELY AS NOT that the diagnosed cancers claimed are related to the Veteran’s service, to include herbicide agent exposure, and/or to the Veteran’s already service-connected prostate cancer, and providing a DETAILED EXPLANATION for any such statement. 3. Once the record is deemed complete, schedule the Veteran for an examination with a VA oncologist. The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner; however, the Board is unable to adjudicate the Veteran’s case without the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication. The Veteran claims service connection for cancer diagnosed as metastases to the head and neck with an unknown primary source and possible right shoulder bone cancer under three different theories 1) that the cancer(s) is a presumptive cancer for which service connection may be granted if, as it is here, herbicide agent exposure is established; 2) if the cancer is not a presumptive cancer, that it either developed during service or within one year of separation, or that it is otherwise related to the Veteran’s service, to include as related to established herbicide agent exposure; and 3) that the cancer is related to the Veteran’s service-connected prostate cancer (either as metastatic prostate cancer or as caused OR aggravated by prostate cancer). The Board very much appreciates the examiner providing detailed explanations addressing all three theories, as specifically directed below. The Board draws the examiner’s attention to the following evidence, which hopefully will provide helpful information. • An October 2010 pathology report (uploaded May 12, 2011) showing spindle cell sarcomatoid carcinoma • A November 2010 treatment record (uploaded May 12, 2011) describing the Veteran’s diagnosis as metastatic squamous cell cancer to neck lymph nodes • An October 2013 treatment record (uploaded June 3, 2016) describing the Veteran’s diagnosis as squamous carcinoma with unknown primary to the head and neck area and metastatic neck disease • The June 2016 VA prostate cancer examination report (uploaded June 20, 2016) • A September 2016 treatment record (uploaded April 10, 2017) describing the Veteran’s cancer as metastatic carcinoma of head and neck origin, originally diagnosed in 2010. The record also notes skeletal metastases and a history of prostate cancer diagnosed in 1998 with no history [of] recurrence. The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. Any needed testing should be performed. a) Please identify by diagnosis any cancers encompassed by the Veteran’s claims for lymphoma, throat cancer, head and neck cancer (including metastases to the head and neck), and right shoulder bone cancer, as described in the medical records referenced above and in any newly obtained evidence. b) Is it at least as likely as not that the Veteran’s diagnosed cancers are respiratory cancers (cancers of the lung, bronchus, larynx, or trachea) within the meaning of 38 C.F.R. § 3.309(e)? c) Is it at least as likely as not that the Veteran’s diagnosed cancers are any other cancer listed in 38 C.F.R. § 3.309(e)? The examiner MUST specifically state whether either the cancer metastatic to the head and neck or the claimed right shoulder bone cancer, are metastases of the Veteran’s prostate cancer. The examiner MUST also discuss the November 2010 pathology findings that the cancer in the Veteran’s lymph nodes was spindle cell or sarcomatoid, and whether this implies that the Veteran has any type of sarcoma, lymphoma, or other cancer listed in 38 C.F.R. § 3.309(e)? d) Is it as least as likely as not (a 50 percent or better probability) that any diagnosed cancer was incurred in or is otherwise related to the Veteran’s active service (or within one year of separation), to include established exposure to herbicide agents? Please note that it is not legally sufficient to state that a specific cancer is not one of the 38 C.F.R. § 3.309(e) presumptive cancers or to cite the absence of medical literature supporting the claim. For the examiner’s answer to be legally sufficient, it must discuss the Veteran’s individual history of cancer onset and development and provide a detailed explanation for any conclusion regarding relationship to herbicide agent exposure. e) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed cancer was CAUSED by the Veteran’s service-connected prostate cancer? f) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed cancer was AGGRAVATED by the Veteran’s service-connected prostate cancer? (Aggravation means the disability increased in severity beyond its natural progression.) g) For any diagnosed cancer found to be related to the Veteran’s service or service-connected prostate cancer, please state whether the Veteran has current cancer AND identify any current residuals of that cancer. A DETAILED explanation (rationale) for all opinions provided is requested and very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel