Citation Nr: 18154315 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-17 022 DATE: November 29, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for throat cancer is reopened. As new and material evidence has been received, the claim of entitlement to service connection for destruction of salivary glands is reopened. As new and material evidence has been received, the claim of entitlement to service connection for a dental condition is reopened. REMANDED Entitlement to service connection for throat cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for destruction of salivary glands, to include as due to throat cancer, is remanded. Entitlement to service connection for a dental condition, to include as due to throat cancer and/or destruction of salivary glands, is remanded. FINDINGS OF FACT 1. In July 2008 and September 2008 VA rating decisions, the claims for entitlement to service connection for throat cancer, destruction of salivary glands, and a dental condition were denied. 2. Evidence received since the September 2008 VA rating decision denying service connection for throat cancer, destruction of salivary glands, and a dental condition is not cumulative or redundant and raises the possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 2008 VA rating decision denying service connection for throat cancer, destruction of salivary glands, and a dental condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.203, 20.1103 (2018). 2. New and material evidence has been received since the September 2008 VA rating decision to reopen the claim for service connection for throat cancer. 38 U.S.C. §§ 1110, 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). 3. New and material evidence has been received since the September 2008 VA rating decision to reopen the claim for service connection for destruction of salivary glands. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. §§ 3.156, 3.310. 4. New and material evidence has been received since the September 2008 VA rating decision to reopen the claims for service connection for a dental condition. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. §§ 3.156, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is a Purple Heart recipient having served in Vietnam with active duty service from March 1968 to November 1970. Given the decision below, a detailed explanation of how VA complied with its duties to notify and assist is unnecessary. 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for throat cancer 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for destruction of salivary glands 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a dental condition The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Procedural background shows that in September 2007, the Veteran filed a claim of service connection for throat cancer. The Veteran subsequently added claims of entitlement to service connection for destruction of salivary glands and for a dental condition secondary to his service connection claim for throat cancer. In a July 2008 VA rating decision, the Regional Office (RO) denied service connection for throat cancer noting that service treatment records were silent for treatment or a diagnosis for throat cancer. The RO also found that post-service, the Veteran has not received treatment for throat cancer, but acknowledges that the Veteran was treated for cancer on the tongue and left tonsil. Nonetheless, the RO denied the Veteran’s claim finding that the condition was not incurred in or caused by service, nor was it caused by herbicide exposure. Similarly, service connection for destruction of salivary glands was denied on the basis that there was no evidence of such being incurred in or aggravated by service, and on a secondary basis since service connection for throat cancer and/or cancer of the tongue was not established. With regard to his claim for a dental condition, the RO denied the Veteran’s claim finding that dental conditions are not considered disabling conditions for compensation purposes. After receiving additional medical records, the RO reviewed the Veteran’s claim and continued to deny service connection for throat cancer and destruction of salivary glands in a September 2008 rating decision for the same reasons explained above. Likewise, service connection for a dental condition was denied on a secondary basis since service connection was not established for throat cancer or for the destruction of his salivary glands, and there was no evidence showing a direct relationship to service. The Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter. Therefore, the September 2008 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. Since the September 2008 rating decision, the Veteran has submitted evidence to include prior Board decisions where service connection for squamous cell carcinoma of the tongue, oropharynx, and the left tonsillar fossa was granted. In particular, the Veteran submitted a June 2009 rating decision involving a Veteran by the name of G.S., where service connection for squamous cell carcinoma of the right base of the tongue was granted. Additionally, the Veteran submitted a letter from Dr. P.C. who reported that he served as the battalion surgeon within the same platoon as the Veteran and Veteran G.S. while in Vietnam. The doctor explained that the Veteran in the present case developed carcinoma of the base of the tongue, and that while agent orange could be absorbed via the skin, the primary path would have to transit the oropharynx and tongue to reach the larynx. The doctor also included a Statement in Support of Claim that he previously submitted on behalf of Veteran G.S. with regard to his claim of service connection. In that statement, the doctor again explained that introduction of the carcinogen has to be exposed to the tongue in the process, and given the close proximity of 1 to 2 centimeters from the larynx, said cancer should be covered by VA. Further, in a March 2010 written opinion, Dr. S.W. noted that after reviewing records of another Veteran, who also developed squamous cell carcinoma in the base of the tongue as did the Veteran in this case, he believed the cancers are identical. The Board notes that while the statement from Dr. P.C. does not definitively find a positive nexus for the Veteran’s cancer, the statement provides a reasonable plausibility that the Veteran’s cancer of the tongue may be due to the Veteran’s herbicide exposure. Similarly, although the statement provided by Dr. S.W. does not specifically note that the records he reviewed and compared to the Veteran’s case was that of Veteran G.S., given that the Veteran has likened his case to Veteran G.S. in a number of written correspondences, it is presumed that the other records referred to and reviewed by Dr. S.W. belonged to Veteran G.S. The Board notes that prior Board decisions are not binding and does not carry controlling weight over the outcome of this appeal; rather, the facts of this particular case alone are determinative. However, the Board finds the evidence considered as a whole raises a reasonable possibility of substantiating the claim. Therefore, as the threshold for reopening a claim is low, the Board finds that new and material evidence has been received to reopen the claim for throat cancer. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. Concerning the Veteran’s claim of service connection for the destruction of salivary glands and a dental condition, the examiner in a May 2008 swallow study determined that the Veteran was at risk for continued decline in swallowing function due to late effects of radiation treatment. In addition, a VA examiner in an August 2012 medical opinion found that the effects of radiation therapy on salivary function as the proximate cause of dental decay is undisputed and is a known long-term issue following radiation. Given that this evidence was not previously considered and raises a reasonable possibility of substantiating a claim on a secondary basis, the Board finds the evidence is new and material sufficient to reopen these claims. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.310. REASONS FOR REMAND 1. Entitlement to service connection for throat cancer, to include as due to herbicide exposure The Veteran maintains that his throat cancer was caused by herbicide exposure while in Vietnam. As the Veteran’s DD Form 214 confirms that he served in the Republic of Vietnam during the applicable service period, he is therefore presumed to have been exposed to herbicide agents. The Board notes that the Veteran has filed a claim of service connection for throat cancer; however, the evidence shows that the Veteran was specifically diagnosed with carcinoma of the base of the tongue involving the left cervical lymph nodes. Cancer of the tongue is not listed among the diseases for which a presumption of service connection based on herbicide exposure applies. See 38 C.F.R. § 3.309(e) (2018). Accordingly, service connection for cancer of the tongue may not be presumed based on the Veteran’s herbicide exposure during service. Nevertheless, a claimant may establish service connection for a disability based upon adequate evidence of actual causation (direct basis). See 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the Veteran has essentially premised his claim of service connection on the basis that service connection should be granted given that the same has been afforded to other Veterans under similar circumstances. As mentioned previously, the Board is not bound by previous Board decisions and each case is determined based upon the facts found in that particular case. However, the Board may consider prior Board decisions if the facts and circumstances are relevant to the Veteran’s claim. The Board notes that the opinions from Dr. P.C. and Dr. S.W. mentioned previously seem to suggest that the Veteran’s cancer is similar and/or identical to Veteran G.S. However, in an August 2012 VA medical opinion, the examiner distinguished the two cases finding that the Veteran’s exposure to carcinogens from smoking significantly outweighed his exposure to carcinogens from agent orange. The examiner explained that the Veteran was exposed to agent orange 25 years prior to being diagnosed with cancer, while he smoked daily until his diagnosis in 1996; therefore, the exposure from smoking significantly outweighs the Veteran’s exposure to agent orange making it less likely that the Veteran’s cancer was caused by herbicide exposure. In evaluating the aforementioned medical opinions, the Board finds the private opinions from Dr. P.C. and Dr. S.W. inadequate as neither physician opined whether it was at least as likely as not that the Veteran’s herbicide exposure caused the Veteran’s cancer of the tongue in light of other known risk factors, such as smoking. Similarly, while the August 2012 examiner provided a detailed opinion, the Board finds the opinion speculative. Although the examiner found that the Veteran’s exposure to smoking likely caused his cancer, the examiner also seemed to suggest that the Veteran’s cancer may have been associated with human papillomavirus (HPV); although, he noted that this cannot be proven. Additionally, despite his conclusion that the Veteran’s smoking was the likely cause of his cancer, the examiner noted that “it is impossible to parse out proximate cause when several more potential risk factors exist.” In light of this finding, the Board finds the opinion internally inconsistent and speculative; thus, inadequate for adjudicating the Veteran’s claim. Consequently, an additional VA medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for destruction of salivary glands, to include as secondary to throat cancer 3. Entitlement to service connection for a dental condition, to include as secondary to throat cancer and destruction of salivary glands With regard to the Veteran’s claims of service connection for destruction of salivary glands and a dental condition, the Board finds these claims are inextricably intertwined with the remanded issue of service connection for throat cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician, to include consideration of an otolaryngologist, so a supplemental opinion may be provided. If an otolaryngologist is not available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. 2. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cancer of the tongue began during active service or is related to an incident of service, to include herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review the medical opinion and examination report (if obtained) to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 4. Then, readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel