Citation Nr: 20002991 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-17 671 DATE: January 14, 2020 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a laryngeal papillomatosis is granted and the claim is reopened. Service connection for laryngeal papillomatosis, to include as due to exposure to toxic herbicide agents, is denied. FINDINGS OF FACT 1. In a January 2007 rating decision, the claim of entitlement to service connection for laryngeal papillomatosis was denied on the ground that his laryngeal papillomatosis was not incurred in service and that it had not been determined to have a positive association with exposure to herbicide agents. 2. The evidence added to the record since the January 2007 rating decision relates to unestablished facts that are necessary to substantiate the claim of service connection for laryngeal papillomatosis. 3. The Veteran’s laryngeal papillomatosis is not a disease subject to presumptive service connection based upon exposure to toxic herbicide agents and was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to toxic herbicide agents. CONCLUSIONS OF LAW 1. The January 2007 rating decision that denied the Veteran’s claim of entitlement to service connection for laryngeal papillomatosis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Because the evidence received after the January 2007 rating decision is new and material, the requirements to reopen the Veteran’s claim of entitlement to service connection for laryngeal papillomatosis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for service connection for laryngeal papillomatosis, to include as due to exposure to toxic herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. As a result of his exemplary service, the Veteran received multiple awards including the Purple Heart. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for laryngeal papillomatosis, to include as due to exposure to toxic herbicide agents The Veteran contends that his claim of entitlement to service connection for laryngeal papillomatosis should be reopened because the record contains new evidence showing that it is etiologically related to his conceded exposure to toxic herbicide agents. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulations, “new” evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). “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. Id. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include 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. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran’s claim of entitlement to service connection for laryngeal papillomatosis was previously denied by a January 2007 rating decision on the ground that it was not incurred in service and that it had not been determined to have a positive association with exposure to herbicide agents. The Veteran did not appeal the denial of his claim of entitlement to service connection for laryngeal papillomatosis in the January 2007 rating decision, nor did he submit any new and material evidence within a year of receiving it. Thus, the January 2007 rating decision represents the last final denial of his claim seeking service connection for laryngeal papillomatosis. After a review of the evidence submitted since the January 2007 rating decision became final, the Board determines that the Veteran’s claim of service connection for laryngeal papillomatosis should be reopened. The record now includes new evidence, including a March 2017 nexus opinion by a private physician, which raises the possibility that his laryngeal papillomatosis is related to his conceded exposure to herbicide agents. Not only is this evidence “new” because it was not of record prior to the last final denial of the claim, it is also “material” because it relates to an unestablished fact necessary to support the claim. Therefore, his claim seeking service connection for laryngeal papillomatosis should be reopened. Shade, 24 Vet. App. at 118-21; see also 38 C.F.R. § 3.156(a). Service Connection 2. Entitlement to service connection for laryngeal papillomatosis, to include as due to exposure to toxic herbicide agents The Veteran asserts that service connection for laryngeal papillomatosis is warranted because he was exposed to herbicide agents during his service in the Republic of Vietnam. VA regulations state that certain diseases associated with exposure to toxic herbicide agents maybe presumed to have been incurred in service even if there is no evidence of the disease in service, provided that the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § § 3.309(e). Pursuant to 38 C.F.R. § 3.307(a)(6), a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicide agents used during that time, with “Agent Orange” being the most common. Service connection is warranted for the following diseases where a veteran has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)): AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, 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, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. In fact, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Here, service connection for the Veteran’s laryngeal papillomatosis on a presumptive basis due to exposure to toxic herbicide agents is not warranted. Although the Veteran is presumed to have been exposed to toxic herbicide agents because his personnel records show that he served in the Republic of Vietnam, laryngeal papillomatosis is not among the diseases for which service connection is granted based upon exposure under 38 C.F.R. §§ 3.307 and 3.309. Moreover, the Board is unaware of any indication that laryngeal papillomatosis is a form of cancer to the larynx. Therefore, service connection for laryngeal papillomatosis on a presumptive basis due to toxic herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Next, although the Veteran’s laryngeal papillomatosis is not entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309, the Veteran is not precluded from establishing service connection for it with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, as discussed below, the Board concludes that although the Veteran has been diagnosed with laryngeal papillomatosis, the preponderance of the weighs against finding that it began during service or is otherwise etiologically related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Initially, the Board finds that the Veteran’s service treatment records fail to establish that his laryngeal papillomatosis was incurred in or is related to his active duty service. Specifically, his service treatment records do not reflect that he reported symptoms of, received treatment for, or was diagnosed with laryngeal papillomatosis or any other related disorder. In fact, the report from his October 1968 separation examination reflects that the examining physician noted a vaccination scar on his upper left arm, but otherwise found that all of his systems and body parts were “normal,” and the examining physician did not note any signs, symptoms, or issues related to his vocal chords or with papillomas. Thus, his service treatment records fail to establish that service connection is warranted. The post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to his laryngeal papillomatosis. Indeed, the objective medical evidence does not show any symptoms of or treatment for symptoms that could be attributed to laryngeal papillomatosis until he received a diagnosis of recurrent laryngeal papillomatosis in 1982, approximately 14 years after his separation from service. In fact, he is not truly asserting that he has experienced continuous symptoms of laryngeal papillomatosis given that he has claimed that it is due to his exposure to herbicide agents. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service (to include his toxic herbicide exposure) and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s laryngeal papillomatosis to his active duty service. Here, the Board finds the report from the September 2017 VA examination to be of substantial probative weight. Based upon a review of the claims file and an in-person examination, the examiner opined that the Veteran’s laryngeal papillomatosis was less likely than not incurred in or caused by his conceded exposure to toxic herbicide agents. In support of that opinion, the examiner explained that an ear, nose, and throat consult note from September 2016 noted that the Veteran’s laryngeal papillomatosis was due to the human papilloma virus (HPV), which results in benign papillomas. The examiner further explained that there is insufficient medical evidence that links HPV to Agent Orange. In fact, the examiner noted that there is currently no medically accepted literature connecting HPV and Agent Orange. The Board acknowledges that the September 2016 treatment record from the ear, nose, and throat consult that attributes his laryngeal papillomatosis to HPV also notes that the physician opined that it is “likely” that Agent Orange contributed to his laryngeal papillomatosis and that in March 2017, a private physician opined that there is “certain medical probability” that the Veteran’s Agent Orange exposure is related to his current disabling condition. However, the Board finds that the VA examiner’s opinion more persuasive, and that these private opinions are insufficient to establish that service connection is warranted. Importantly, neither of these opinions is supported a rationale explaining why it is “likely” that Agent Orange contributed to his laryngeal papillomatosis or why there is “certain medical probability” that Agent Orange exposure is related to it. In contrast the September 2017 VA examiner’s opinion contains a thorough rationale, including that no medical literature provides a link between. Moreover, in contrast with the definite opinion and rationale provided by the VA examiner, the September 2016 and March 2017 opinions are speculative, merely stating that it is “likely” and that there is “certain medical probability” that Agent Orange contributed to his laryngeal papillomatosis. Additionally, the physicians that provided the September 2016 and March 2017 opinions do not indicate that they reviewed the Veteran’s medical records unlike the September 2017 VA examiner, who reviewed the Veteran’s claims file. Finally, the Board agrees with the VA examiner’s observation that the September 2016 opinion is somewhat self-contradicting, as it attributes the Veteran’s condition to the HPV virus as well as toxic herbicide exposure. Given the September 2017 VA examiner’s thorough rationale, reliance on medical literature, definitive statements, review of the claims file, and expertise, the Board finds that opinion of the September 2017 VA examiner is entitled to greater probative weight than the September 2016 and March 2017 opinions provided by the private physicians. Thus, the Board concludes that the medical evidence does not support a nexus between his laryngeal papillomatosis and his active duty service. The Board also notes that that the Veteran submitted an unrelated Board decision to support his claim of service connection for laryngeal papillomatosis. However, prior unrelated Board decisions are non-precedential, or binding, on the Board. See 38 C.F.R. § 20.1303. Rather, the Board reviews the particular facts of each case in light of applicable procedure and substantive law. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his laryngeal papillomatosis to his active duty service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his laryngeal papillomatosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although the Veteran can provide competent testimony regarding symptoms such as hoarseness, his laryngeal papillomatosis is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his laryngeal papillomatosis is related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.   By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for laryngeal papillomatosis and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel