Citation Nr: 18142754 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-31 763 DATE: October 16, 2018 ORDER New and material evidence having been received, a claim of entitlement to service connection for tonsil carcinoma is considered reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for tonsil carcinoma is remanded. Entitlement to service connection for dry mouth, coughing, and loss of teeth as secondary to tonsil carcinoma is remanded. FINDINGS OF FACT 1. A May 2003 rating decision denied the claim of service connection for tonsil carcinoma, the Veteran did not submit a notice of disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for tonsil carcinoma has been received since the May 2003 rating decision, and as such, the claim is reopened. CONCLUSIONS OF LAW 1. The May 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received since the May 2003 denial of service connection for tonsil carcinoma to reopen the claim. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. § 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to March 1970, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver Colorado in which the RO, in pertinent part, denied service connection for tonsil carcinoma and dry mouth, coughing, and loss of teeth. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the record. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tonsil carcinoma. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). “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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 2003 rating decision, the RO denied service connection for tonsil carcinoma, because it was not diagnosed in service, was not diagnosed within one year of military discharge, and was not related to herbicide exposure. The Veteran did not submit an NOD and as such, the Veteran’s appeal was closed and the May 2003 decision became final. Subsequently, in August 2012, the Veteran submitted a request to reopen his claim for entitlement to service connection for tonsil carcinoma. In a September 2013 rating decision, the RO denied service connection for tonsil carcinoma because no new and material evidence was submitted to substantiate the claim. In December 2013, the Veteran submitted an NOD. In August 2015, a statement of the case (SOC) was provided to the Veteran which reopened and continued the denial of service connection for tonsil carcinoma, because the evidence of record did not show the Veteran’s tonsil carcinoma occurred in or was caused by service and was not due to herbicide exposure. In August 2015, the Veteran submitted a timely VA Form 9. Thus, the current appeal ensued. Evidence received since the May 2003 last prior final denial included information in the form of lay evidence of the Veteran regarding his tonsil carcinoma condition and symptoms, private medical records and statements, and VA treatment records. The evidence contributes to a more complete picture of the circumstances surrounding the origin of the Veteran’s claimed disability even though they are not sufficient to convince the Board to grant the claim. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Therefore, such evidence is new and material and the claim for service connection for tonsil carcinoma is reopened. REASONS FOR REMAND 1. Entitlement to service connection for tonsil carcinoma is remanded. 2. Entitlement to service connection for dry mouth, coughing, and loss of teeth, to include as secondary to tonsil carcinoma is remanded. The Veteran contends that his tonsil carcinoma is a result of his military service and exposure to herbicides (Agent Orange) while serving in the Republic of Vietnam. The Veteran further contends that his dry mouth, coughing, and loss of teeth is secondary to his currently diagnosed tonsil carcinoma. Private treatment records indicate that the Veteran was diagnosed with squamous cell carcinoma of the left tonsil which metastasized to his neck on the left side. The Veteran underwent a left partial pharyngectomy with a left radical neck dissection, followed by postoperative radiation. After five years with no recurrence, the Veteran was considered by the examiner to be cured. Private treatment records further provide that the Veteran’s tonsil carcinoma may be related to his exposure to herbicides (Agent Orange) in service. Based on the private treatment records and the Veteran’s hearing testimony, the Veteran should be afforded a VA examination to determine the nature and etiology of his tonsil carcinoma and any residual effects thereof. Thus, the Board remands this matter for further development to include a VA examination and medical opinion. The matters are REMANDED for the following action: 1. With any necessary releases, obtain updated VA and/or private medical records of treatment for the Veteran’s tonsil carcinoma and dry mouth, coughing, and loss of teeth and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his tonsil carcinoma and any residuals including dry mouth, coughing, and loss of teeth. The examiner is asked to respond to the following: a) Indicate whether it is at least as likely as not (probability of at least 50 percent) that the Veteran’s tonsil carcinoma had its onset in or is otherwise etiologically related to his period of active service to include presumed exposure to herbicide agents including Agent Orange. c) Indicate whether it is at least as likely as not (probability of at least 50 percent) the Veteran’s dry mouth, coughing, and loss of teeth is proximately due to, or alternatively, aggravated by, his tonsil carcinoma, or otherwise due to the Veteran’s military service. (Continued on the next page)   All indicated studies or testing should be conducted, and the examiner should consider all relevant lay, medical (private treatment records and etiology statements from Dr. Flanagan, dated in December 2013 and Dr. Kinsler, dated in November 2013), and other evidence pertaining to the issue. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) referencing the specific facts of the case as well as any supporting scientific and medical evidence. If the above opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. The examiner should note that even if a condition is not presumptively related to herbicide agent exposure pursuant to current applicable regulations, a direct etiological relationship based on medical or scientific research may be established. Under the laws administered by VA, the presumptive respiratory cancers that are among the listed diseases include cancers of the lung, bronchus, larynx, or trachea; cancers of the pharynx (including the tonsils) are not among the diseases listed (Continued on the next page)   as presumptively associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel