Citation Nr: 19194635 Decision Date: 12/17/19 Archive Date: 12/17/19 DOCKET NO. 16-38 411 DATE: December 17, 2019 ORDER New and material evidence having been received, the petition to reopen a claim for entitlement to service connection for squamous cell carcinoma of the left tonsil is granted. REMANDED The issue of entitlement to service connection for squamous cell carcinoma of the left tonsil, to include as due to in-service exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In a July 2004 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for squamous cell carcinoma of the head and neck (diagnosed as squamous cell carcinoma, stage IV, left tonsil); the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. Evidence added to the record since the July 2004 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating a claim for service connection for squamous cell carcinoma of the left tonsil. CONCLUSION OF LAW New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for squamous cell carcinoma of the left tonsil are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to December 1970, to include in the Republic of Vietnam. In July 2019, he testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. 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. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In April 2004, the Veteran filed a claim for service connection for squamous cell carcinoma of head and neck, secondary to herbicide agent exposure. The RO denied the claim in July 2004. The RO recognized a diagnosis of squamous cell carcinoma, stage IV, left tonsil; however, it was explained that tonsils are part of the oropharynx, one of the three parts of the pharynx and cancer of the pharynx is not one of the presumptive respiratory cancers recognized as being caused by herbicide agent exposure. The Veteran was provided notice of this decision and his appellate rights, but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2004). In December 2015, the Veteran filed a claim to reopen alleging that the tonsils are part of the throat and should be considered to be caused by herbicide agent exposure. He also submitted a Nose, Throat Disability Benefits Questionnaire dated in February 2016. Benign or malignant neoplasm of sinus, nose, throat, larynx or pharynx was listed in the diagnosis section. It was noted he had undergone a bilateral tonsillectomy and thyroidectomy. At his July 2019 hearing before the Board, the Veteran stated his belief that the throat “starts at the tongue and goes down from there.” He contends that he has throat cancer and should be afforded presumptive service connection due to exposure to herbicide agents. In September 2019, the Veteran submitted reference materials from Cedars Sinai, the American Cancer Society and the National Lung Association that he believes “clearly” state the tonsils “are part of the respiratory system, second after the tongue” and support his claim that his cancer should be service-connected. The evidence received since July 2004 is both new and material to the claim, as it suggests that there may be a relationship between the Veteran’s cancer and his conceded exposure to herbicide agents in Vietnam. As the threshold for reopening is low, the Board will reopen the claim. REASONS FOR REMAND Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicides and the subsequent development of the following conditions: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda (PCT); prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). Squamous cell carcinoma of the tonsil or tonsil cancer does not appear on the list of diseases considered presumptively associated with herbicide agent exposure. However, in addition to the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). A medical opinion has not been obtained in this case. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds remand for a medical opinion is warranted to address whether in this Veteran’s particular case his squamous cell carcinoma of the left tonsil was at least as likely as not caused by conceded exposure to herbicide agents in Vietnam. This matter is REMANDED for the following action: Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s squamous cell carcinoma of the left tonsil is related to his period of active duty service, to include conceded exposure to herbicide agents in the Republic of Vietnam. This opinion should focus on whether, in this Veteran’s particular case, there is a relationship between conceded exposure to herbicide agents in Vietnam and this Veteran’s development of squamous cell carcinoma of the left tonsil. It is understood that squamous cell carcinoma of the tonsils or tonsil cancer is not on the list of diseases considered presumptively caused by exposure to herbicide agents. The Board seeks a discussion as to direct causation. In offering the opinion, the examiner is asked to consider the Veteran’s lay testimony regarding his belief that the tonsils are part of the throat/respiratory system. In this regard, the examiner is asked to offer an opinion as to whether the Veteran has had a respiratory cancer (cancer of the lung, bronchus, larynx, or trachea). The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Boyd Iwanowski, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.