Citation Nr: 18151215 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-46 407 DATE: November 16, 2018 ORDER Whether new and material evidence exists to reopen a claim of entitlement to service connection for esophageal cancer is granted. Entitlement to service connection for esophageal cancer is granted. FINDINGS OF FACT 1. A final September 2008 rating decision denied entitlement to a claim of service connection for esophageal cancer. 2. Evidence regarding esophageal cancer received since the September 2008 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The probative evidence of record reflects that the Veteran’s esophageal cancer is at least as likely as not related to his service. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied entitlement to service connection for esophageal cancer is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for esophageal cancer. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for esophageal cancer are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1964 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted additional evidence regarding his claim for esophagus cancer since the issuance of the Statement of the Case. However, as the Form 9 addressing the issues on appeal was received after February 2, 2013, a waiver of AOJ review of the evidence is not required. See 38 U.S.C. § 7105. Furthermore, given the decision herein to grant the benefit sought, there is no prejudice to the Veteran. In September 2017, the Board declined to reopen a claim of entitlement to service connection for esophageal cancer. The Veteran appealed the Board’s denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In an April Order, the Court granted the parties’ Joint Motion for Remand (JMR). The JMR vacated the September 2017 Board denial and remanded the claim to the Board for action consistent with the terms of the Joint Motion. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). New and Material Evidence The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. See, e.g., Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Whether new and material evidence exists to reopen a claim of entitlement to service connection for esophageal cancer A claim of entitlement to service connection for esophageal cancer was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” 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. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, a September 2008 rating decision denied a claim of entitlement to service connection for esophageal cancer. The RO noted that the Veteran’s service treatment records did not show a diagnosis of esophagus cancer during service and that distal esophagus adenocarcinoma is not listed as a presumptive disability due to herbicide exposure. The RO also noted that the Veteran’s VA treatment records contain a diagnosis of esophageal cancer; however, this evidence did not establish a link between the current condition and military service. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The September 2008 rating decision therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The relevant evidence of record at the time of the September 2008 rating decision included the Veteran’s personnel records which show he served in the Republic of Vietnam. Service treatment records (STRs) show that the Veteran was treated for possible retrobulbar neuritis, hemorrhoids, an ulcer, gastritis and possible food poisoning. Private treatment records dated March 2006 to February 2008 show that the Veteran was diagnosed with esophageal cancer. In January 2013, the Veteran filed a claim of entitlement to service connection for esophageal cancer. Relevant additional evidence received since the September 2008 rating decision includes post-service VA and private treatment records, including private opinions regarding a nexus between the Veteran’s cancer and his service. This evidence was not previously on file at the time of the September 2008 decision; thus, it is new. Significantly, a December 2017 letter from a private cancer specialist stated, “[I]t is at least as likely as not that there is a direct relationship between [the Veteran’s] condition and his military service.” This evidence is material because it bears directly on the issue of a nexus, which is one of the reasons the claim was previously denied. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for esophageal cancer, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for esophageal cancer is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Entitlement to service connection for cancer of the esophagus The Veteran contends that service connection is warranted for his esophageal cancer incurred as a result of his military service. Specifically, he asserts that the condition developed due to herbicide exposure during his service in Vietnam or, alternatively, due to gastrointestinal issues treated during his service. The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.§ 1116 (2012); 38 C.F.R.§ 3.307, 3.309(e) (2017). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). However, the Secretary has found no relationship between herbicide exposure and esophageal cancer. See National Academy of Sciences Veterans and Agent Orange Update 2012 (issued in December 2013 and finding that presumption of service connection based on exposure to herbicides is not warranted for cancers of the digestive organs including esophageal cancer, stomach cancer, colorectal cancer, hepatobiliary cancers and pancreatic cancer). Accordingly, a relationship between the Veteran’s disease and herbicide exposure cannot be presumed. Nevertheless, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). After thorough consideration of the evidence, the Board concludes that the Veteran has a current diagnosis of esophageal cancer that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.102, 3.303(a). As discussed above, post-service treatment records reflect a diagnosis of esophageal cancer. This was most recently confirmed in a December 2017 letter from private physician, Dr. R., who wrote that he had been treating the Veteran’s esophageal cancer for the past 11 years. STRs do not document any complaints, treatment, or diagnosis related to esophageal cancer. However, the Veteran served in Vietnam and, as such, exposure to herbicides during his service is substantiated. Thus, the question for consideration in this case is whether there is a nexus between the Veteran’s esophageal cancer and herbicide exposure in service. On this question, the Board finds that the diagnosed esophageal cancer is etiologically related to his service. In the December 2017 letter, Dr. R. stated that he had reviewed the Veteran’s medical history and military record. He opined that it was at least as likely as not that there is a direct connection between the esophageal cancer and the Veteran’s service. In support of his opinion, he cited several clinical studies exploring the relationship between herbicide exposure and various diseases, including cancer. The Board notes the absence of any opposing medical opinion in the claims file. The Veteran’s claim was previously denied on the grounds that distal esophagus adenocarcinoma is not listed as a presumptive disability due to herbicide exposure and that the evidence did not otherwise establish a link between the cancer and military service. However, without relying on any presumptive authority, the evidence now supports a nexus between the Veteran’s esophageal cancer and his service, in the form of the December 2017 private medical opinion, which was prepared with consideration of the lay and medical evidence of record and contains a thorough explanation and rationale in support of a positive nexus between the Veteran’s esophageal cancer and his service. In summary, the Board finds that the competent and credible evidence of record supports the establishment of service connection for esophageal cancer on a direct basis. The Veteran has a post-service diagnosis of esophageal cancer, in-service exposure to herbicides, and a probative medical opinion that relates the current diagnosis to his service. Thus, the claim of entitlement to service connection for esophageal cancer is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.