Citation Nr: 18159109 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-61 580 DATE: December 18, 2018 ORDER Reopening of the previously denied claim of service connection for cancer of the neck (to include metastatic non-small cell cancer with unknown primary and squamous cell carcinoma likely from right tonsillar tag), also claimed as throat cancer and tonsil cancer, is denied. FINDINGS OF FACT 1. In a January 2006 Board decision, the Board denied, in pertinent part, service connection for cancer of the neck. 2. The evidence since the Board’s January 2006 denial of service connection for cancer of the neck does not relate to an unestablished fact or raise a reasonable probability of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2006 Board decision denying service connection for cancer of the neck is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The criteria for reopening the previously denied claim of service connection for cancer of the neck (also claimed as throat cancer, tonsil cancer, and Hodgkins or non-Hodgkin’s lymphoma) are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. The case is on appeal from a November 2013 rating decision, which denied reopening a claim of service connection for squamous cell carcinoma of tonsil, claimed as throat cancer, on the grounds of no new and material evidence. The Board notes that the matter was certified by the RO as whether there was clear and unmistakable error in the denial of service connection; however, the RO did not first prepare a rating decision or statement of the case on the issue of clear and unmistakable error. Although a Supplemental Statement of the Case on the issue of clear and unmistakable error was issued in December 2016, this was not the proper vehicle to address the newly raised issue of clear and unmistakable error. See 38 C.F.R. § 19.31(a), providing that “in no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case.” The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Reopening of the previously denied claim of service connection for cancer of the neck, also claimed as throat cancer and tonsil cancer In a rating decision dated in June 2003, the RO denied service connection for lumps on neck. The Veteran appealed that decision, and in January 2006 the Board denied service connection for cancer of the neck on the grounds that there was no evidence of cancer during service or in the year after service; no post-service evidence of a nexus to service, including Agent Orange exposure; and on the grounds that the Veteran’s cancer “involving the cervical lymph nodes and other tissue in the area of the neck” is not among the listed diseases for which service connection due to Agent Orange may be presumed. In August 2006, the Veteran filed a new claim for service connection, this time for “cancer of the throat due to Agent Orange exposure.” In November 2006, the RO denied the issue of service connection for squamous cell carcinoma of tonsil, claimed as throat cancer, on the merits. The Veteran did not file a notice of disagreement to that decision and no new and material evidence was received within one year of its issuance. In May 2008, the Veteran filed a new claim for service connection, this time for “right tonsil cancer (lymphoma) due to Agent Orange exposure.” In August 2008, the RO denied the issue of squamous cell carcinoma of tonsil, also claimed as throat cancer, on the grounds of no new and material evidence. The Veteran did not file a notice of disagreement that decision and no new and material evidence was received within one year of its issuance. In August 2013, the Veteran filed a new claim for service connection for “cancer due to Agent Orange exposure;” and in November 2013 the RO denied that claim on the grounds of no new and material evidence. The Veteran has appealed that decision. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). “New” evidence is evidence which is not “merely cumulative” of other evidence in the record. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). “Material” evidence is “relevant and probative of the issue at hand.” Id. To reopen the claim, there must be a reasonable possibility that the outcome would differ when the new evidence was considered in light of all the evidence. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of what the RO did, the Board has the jurisdictional responsibility to consider whether it is proper to reopen a claim. The Board will therefore determine, de novo, whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this regard, the Board notes that all of the subsequent claims for cancer after the January 2006 Board pertain to the same cancer that was denied by the Board in January 2006. Although the specificity of the claim changed with each re-filing, the nature (cancer) and basic location (neck) of the claimed disorder has not. See Boggs v. Peake, 520 F.3d (Fed. Cir. 2008) (noting that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition). Simply stated, the Veteran is asking for his prior denied claim to be reopened. The Board, accordingly, finds that new and material evidence since the January 2006 Board decision is needed to reconsider the claim. The evidence of record at the time of the January 2006 Board decision consisted of the Veteran’s service treatment records; VA treatment records (including June 2003 surgery records); the report of a December 2003 VA examination, in which the examiner stated that the current information was insufficient to furnish an opinion as to the primary site of the cancer; a February 2005 statement from the Veteran, in which he stated that his neck cancer may be non-Hodgkin’s lymphoma, or soft tissue sarcoma; or Hodgkin’s disease; and the Veteran’s February 2005 Board Hearing testimony. Evidence received since the January 2006 Board decision includes VA medical records, which inform that the Veteran has a “history of squamous cell carcinoma of the neck in 2003, status post surgery and radiation on both sides of neck” of “Unknown Primary---Possible tonsil tag right.” See, e.g., VA medical records dated in March 2015 and May 2018. While new (in the sense that these records were compiled after the January 2006 Board decision), this information is cumulative and redundant of the evidence of record at the time of the January 2006 Board decision. It is simply indicating what was known prior to the Board’s decision, nothing more. The evidence also includes the report of an August 2016 VA respiratory disorders examination. According to the examiner (a physician’s assistant), the Veteran’s metastatic non-small cell cancer with unknown primary and “squamous cell carcinoma likely from right tonsillar tag” is not related to service, including the Veteran’s exposure to Agent Orange; and “is not a respiratory cancer associated with agent orange exposure (lung, bronchus, larynx or tracheal).” This is negative evidence against the claim and thus does not raise a reasonable possibility of substantiating the claim. It therefore does not constitute new and material evidence. Other newly submitted evidence includes a February 2014 statement from the Veteran, in which he averred that his tonsils were removed when he was a child. This information is cumulative and redundant of the evidence of record at the time of the January 2006 Board decision. See, e.g., VA hospital admission records dated June 13, 2003, which document the Veteran as reporting that his past surgeries included tonsillectomy. It therefore is not new and material evidence. The evidence also includes the Veteran’s intimation that he has throat cancer. See August 2006 claim for service connection. However, the Veteran has not presented any document that reflects a diagnosis of throat cancer (or, for that matter, any of the other cancers listed at 38 C.F.R. § 3.309(e)); or indicated that he is qualified through specialized education and expertise to make the diagnoses himself. Consideration of lay statements does not dictate an unquestioning, blind adherence to reopening the claim where the remarks are entirely speculative and unaccompanied by any objective evidence. The Veteran’s proclamation that he has throat cancer does not meet the criteria of new and material evidence, even given the low threshold in Shade. The Veteran also reprised his earlier proposition that the primary situs of his cancer could be lymphatic and thus his cancer could be Hodgkins disease or non-Hodgkins lymphoma. See October 2014 statement from Veteran. This is cumulative and redundant of the information already of record in January 2006. See, e.g., February 2005 statement from Veteran; and Veteran’s February 2005 Board Hearing testimony. It thus does not constitute new and material evidence. Filing the same claim is not new or material. In short, the medical evidence received after the January 2006 Board decision continues to show that the Veteran has metastatic non-small-cell carcinoma of the neck with unknown primary; that the Veteran’s cancer is not among the diseases listed at 38 C.F.R. § 3.309(e); and that the Veteran’s cancer is not directly linked by competent medical evidence to Agent Orange exposure. This is cumulative and redundant of that already of record in January 2006 and does not raise a reasonable possibility of substantiating the claim. Additionally, the assertions by the Veteran since the January 2006 Board Hearing regarding the nature and etiology of his cancer are also either cumulative and redundant of the information already of record in January 2006, or are beyond the Veteran’s competency to make, such as the Veteran’s self-made diagnosis of throat cancer, Hodgkin’s disease, and non-Hodgkin’s lymphoma. Consequently, the evidence since the January 2006 Board decision does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, and so is not new and material evidence. Reopening of the claim is therefore not warranted. In this regard, the Board notes that the Veteran (through his representative) has requested a new VA examination and opinion because the August 2016 VA examination was done by a physician’s assistant. However, the Board notes that in her report, the examiner assured that she had reviewed the claims file and pertinent medical literature, and consulted with an appropriate specialist (an otolaryngologist) in formulating her opinion. In view of this due diligence, the Board finds that the August 2016 VA examination opinion is not diminished simply because the examiner was a physician’s assistant. A new examination is thus not needed and reopening of the claim for service connection for cancer of the neck, also claimed as throat cancer and right tonsil cancer (diagnosed as metastatic non-small cell cancer with unknown primary and squamous cell carcinoma likely from right tonsillar tag), is not warranted. See, e.g., Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Cf. Mathis v. Shulkin, 137 S. Ct. 1994 (2017) (denying writ of certiorari to review the presumption of competence of VA examiners). Given that no new and material evidence has been submitted, there is no basis to obtain an examination (the Veteran must provide new and material evidence to reopen the claim). In any event, it is very important for the Veteran to understand that even if we did reopen the claim, there is still no basis to grant this claim (the disability is not presumptive to herbicides and there is, as noted above, evidence against this claim that the Board can not ignore). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel