Citation Nr: 19147591 Decision Date: 06/18/19 Archive Date: 06/18/19 DOCKET NO. 19-09 280 DATE: June 18, 2019 ORDER New and material evidence having been received, the claim for service connection for tongue cancer is reopened. Entitlement to service connection for tongue cancer, including residuals, is granted. FINDINGS OF FACT 1. A Department of Veterans’ Affairs (VA) Regional Office (RO) first denied service connection for tongue cancer in an April 2014 rating decision because there was no evidence submitted to show a nexus between the disability and the Veteran’s service, to include exposure to herbicide agents. The Veteran neither appealed that decision nor submitted new and material evidence within one year after that decision, and it is final. 2. New and material evidence has been submitted showing there is a causal relationship between the Veteran’s tongue cancer and his exposure to herbicide agents in service. 3. Submitted medical evidence shows that exposure to herbicide agents in Vietnam was at least as likely as not related to the development of tongue cancer in this Veteran’s case. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for tongue cancer. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for service connection for tongue cancer, including residuals, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1966 to August 1968, including service in Vietnam from August 1967 to August 1968. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision. In June 2019, the Veteran and a witness testified at a videoconference hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran’s claim for service connection for tongue cancer was first denied by a rating decision in April 2014 based on a finding that there was no evidence submitted to show a nexus between the Veteran’s tongue cancer and his presumed exposure to herbicide agents in service. The Veteran did not appeal the rating decision or submit new and material evidence within one year, and it therefore became final. The Veteran submitted a request to reopen his claim for service connection in September 2015, which was denied in a November 2015 rating decision that found that a medical opinion from Dr. R.M received in October 2015 did not relate to an unestablished fact. The Veteran filed a new claim to reopen in December 2015, along with a Statement in Support of Claim that correctly noted that the RO’s November 2015 rating decision failed to consider a positive nexus opinion written by Dr. M.D. received in September 2015, which opined that the Veteran’s tongue cancer was related to herbicide agent exposure based on the Veteran’s medical history and a discussion of known risk factors. A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. The Court of Appeals for Veterans Claims has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the opinion by Dr. M.D., as well as other positive nexus opinions added to the record, constitutes new and material evidence because they address whether there is a nexus between the Veteran’s tongue cancer and exposure to herbicide agents in service. The Board therefore finds that the opinion is sufficient to reopen the claim for entitlement to service connection for tongue cancer and its residuals. 1. Entitlement to service connection for tongue cancer The Veteran asserts that his tongue cancer was caused by exposure to herbicide agents while serving in Vietnam. As noted above, the Veteran has confirmed service in Vietnam during the wartime period, and thus is presumed to have been exposed to herbicide agents during service. The Board concludes that the Veteran has a current disability that is related to exposure to herbicide agents based on a medical assessment of this Veteran’s risk factors. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran was diagnosed with squamous cell carcinoma of the left tongue in August 2013, underwent a partial left glossectomy and left-sided cervical lymph node dissection to remove the tumor that same month, and underwent radiation therapy through December 2013. See, e.g., CAPRI Record dated June 2015. Additionally, the Veteran has residuals of his cancer surgery and treatment, to include dry mouth, loss of taste, difficulties in swallowing, difficulty eating, and weight loss, among others. See Medical Opinion by Dr. C.K. dated July 2018. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes January 2016 and November 2018 VA medical opinions. However, the rationales provided in these opinions rely heavily on the fact that tongue cancer is not one of the respiratory cancers listed as being presumptively related to exposure to herbicide agents. In providing an opinion, clinicians may not rely solely on the fact that a disability is not on the presumptive list of diseases associated with herbicide exposure. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that “to permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection”). Rather, the clinician must provide specific reasons in support of the opinion, to include, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are other risk factors that might be the cause of the Veteran’s disability, and whether it has manifested itself in an unusual manner. See Polovick, 23 Vet. App. at 55. In this case, though the January 2016 VA opinion stated that Institute of Medicine and National Cancer Institute have not found a statistical link between herbicide agent exposure and tongue cancer, there was no discussion of the Veteran’s specific medical history or any of the medical studies cited by the several positive nexus opinions of record. Though the November 2018 VA opinion indicated that the examiner had reviewed conflicting medical evidence, the only response to why the examiner did not find the medical studies supporting a nexus to be probative was that “the ‘Secretary of the VA has found no positive association between exposure to tactical herbicides such as Agent Orange and cancers of the oral cavity and the pharynx. This includes the tongue.” Such a rationale relies on a determination by the Secretary of the VA, rather than an independent medical analysis based on the facts of the case. Thus, the Board finds that the January 2016 and November 2018 VA opinions are of little probative value in this case. The evidence in favor of the claim includes positive nexus opinions from Dr. M.D. (received September 2015), Dr. R.M. (received October 2015), Dr. C.K. (received July 2018), and addendum opinions received from Drs. R.M. (received May 2019) and C.K. (received June 2019). In sum, these opinions explained that the Veteran’s tongue cancer is at least as likely as not related to his exposure to herbicide agents in service because (1) the standard known risk factors for tongue cancer include smoking, chewing tobacco, HPV, and excessive alcohol consumption, but the Veteran’s “only risk factor regarding base of tongue cancer, aside from exposure to [chemicals in herbicide agents], was a remote history of smoking, which he is independently documented to have quit some 30 years prior;” (2) the Veteran’s cancer was located at the base of his tongue, just millimeters away from an area that would have qualified for presumptive service connection as being a respiratory cancer; (3) the areas qualifying as respiratory cancers have the same known risk factors and are the same type of cancer (squamous cell carcinoma (“SCC”)) as tongue cancer; and (4) multiple cited studies have shown that those exposed to herbicide agents are at increased risk of head and neck cancers, even when adjusting for other risk factors such as smoking. The Board notes, in particular, the following from Dr. C.K.’s July 2018 opinion: So in the end his only known risk factors was a very remote history of smoking and exposure to dioxins. SCC of the tongue is not a common cancer without the presence of risk factors. Only 15% occur sporadically. Therefore... I consider that it is more likely than not that his diagnosis of SCC of the tongue was caused by his exposure to dioxins present in AO during his service in Vietnam. Even if one wishes to implicate some carcinogenic contribution from his remote smoking history, one must attribute at the least an equal contribution from dioxins, a known human carcinogen evidence to cause [head and neck] SCC. Medical evidence supports a finding that the Veteran stopped smoking in the 1970’s or, at latest, 1980; and that the Veteran’s cancer was not caused by HPV. See Medical Treatment Records dated September 2003, August 2013, March 2014. Upon review of the record, the Board finds the evidence supports a finding that the Veteran’s tongue cancer is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tongue cancer, including residuals, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate 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.