Citation Nr: 20006041 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 17-21 415 DATE: January 24, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for cystic pancreatic cancer; to that extent, the appeal is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for testicular tumor, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for a pancreatic disability, to include as due to herbicide agent exposure is remanded. FINDINGS OF FACT 1. An August 2009 rating decision denied service connection for cystic pancreatic cancer and the Veteran did not perfect an appeal. 2. The evidence submitted since the RO’s August 2009 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for cystic pancreatic cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1964 to October 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned Veterans Law Judge during a July 2019 Board videoconference hearing. A transcript of the hearing has been associated with the record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cystic pancreatic cancer. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § § 7105; 38 C.F.R. § § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for cystic pancreatic cancer was denied in an August 2009 rating decision on a finding that the Veteran was not exposed to Agent Orange, no evidence that pancreatic cancer was associated with Agent Orange exposure, and no evidence that the condition began or was due to the Veteran’s military service. Since the August 2009 rating decision, VA has conceded that the Veteran was exposed to tactical herbicides during his service and service connection was granted for liposarcoma based on conceded herbicide agent exposure. See Joint Mot. for Remand 7, June 6, 2019; see also Joint Mot. to Terminate the Appeal, in Part, June 6, 2019. This evidence has not been previously considered and relates to an unestablished fact necessary to substantiate the claim; whether the Veteran’s cystic pancreatic cancer is related to or caused by service, to include exposure to herbicide agents. Based on the foregoing, the Board finds that new and material evidence has been received to reopen the claim of service connection for cystic pancreatic cancer. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide agent exposure is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure is remanded. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide agent exposure is remanded. The Veteran contends that service connection is warranted for peripheral neuropathy of the bilateral upper and lower extremities on a presumptive basis as related to his herbicide agent exposure. As discussed above, exposure to herbicide agents has been conceded. Medical treatment records contain diagnoses of peripheral neuropathy and sensory polyneuropathy. At the July 2019 Board hearing, the Veteran reported that he has had symptoms of peripheral neuropathy since he was 18 years old and that his private physician may have referred to it as early or latent onset. Given that early-onset peripheral neuropathy is a presumptive disorder related to herbicide exposure pursuant to 38 C.F.R. § 3.309(e), a remand for a VA examination is required to determine etiology. 5. Entitlement to service connection for testicular tumor, to include as due to herbicide agent exposure is remanded. The Veteran asserts that presumptive service connection is warranted for testicular tumor as due to his herbicide agent exposure. As discussed above, exposure to herbicide agents has been conceded. Post-service medical records indicate that the Veteran was diagnosed with right testicular tumor, seminoma in September 1976 for which he underwent a right inguinal orchiectomy. A September 2012 letter from the Veteran’s private physician, Dr. D.Z., noted the Veteran’s prior medical history of testicular seminoma and stated that there was a clear link between his Agent Orange exposure and his known cancers, presumably including the early testicular seminoma. The Veteran has submitted medical articles showing an increased risk of testicular cancer among those exposed to Agent Orange. The Board notes that it is, however, unclear whether the Veteran has any current residuals of his diagnosed testicular seminoma. Private medical treatment records from April 2006 note that the Veteran has undergone multiple re-excisions of a recurrence following the initial 1976 resection. Later private medical records from August 2009 note that there has been no evidence of recurrence of the testicular seminoma but also describe the Veteran as having “radiation-induced, well-differentiated liposarcoma.” Medical Treatment Record – Non-Government Facility, received October 8, 2014. Incidentally, service connection for the liposarcoma was granted in an August 2019 rating decision. VA denied service connection for testicular tumor because it is not among the diseases listed at 38 C.F.R. § 3.309(e) for which service connection is warranted on a presumptive basis due to in-service herbicide agent exposure. However, the Veteran is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation. As such, remand is required for an examination to determine if the Veteran has any current residuals of testicular seminoma and, if so, whether such residuals are related to service, to include his conceded herbicide agent exposure. 6. Entitlement to service connection for a pancreatic disability, to include as due to herbicide agent exposure is remanded. Finally, the Veteran contends that service connection is warranted for a pancreatic disability as due to his now-conceded herbicide agent exposure. The Board notes that the Veteran claimed this disability as cystic pancreatic cancer; however, the medical evidence of record does not indicate that the Veteran’s pancreatic disability was cancerous in nature. In this regard, Dr. C.F. indicated in July 2007 that pancreatic cystic mass was mucinous and that such mucinous masses had a propensity toward malignancy. However, subsequent private physicians have noted that the cystic neoplasm was more consistent with a benign cystic neoplasm of serous cystadenoma variety. Therefore, the Board has recharacterized the issue as entitlement to service connection for a pancreatic disability to more accurately reflect the medical evidence of record. Unfortunately, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a pancreatic disability, as no medical opinion has been obtained that addresses whether such disability is related to the Veteran’s service, to include his conceded herbicide agent exposure. The matters are REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records and associate them with the claims file. 2. After completion of directive #1, schedule the Veteran for a VA examination to determine the nature and etiology of his peripheral neuropathy of the bilateral upper and lower extremities. The Veteran’s claims folder should be reviewed by the examiner in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should provide responses to the following: a. Specifically state whether or not the Veteran has a diagnosis of early-onset peripheral neuropathy. b. If the Veteran has a diagnosis other than early-onset peripheral neuropathy, opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disability had its onset during service or is otherwise related to service, to include conceded herbicide agent exposure. The rationale for all opinions must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. 3. After completion of directive #1, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s testicular seminoma and any residuals thereof. All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should provide responses to the following: a. Does the Veteran have right testicle seminoma or any residuals thereof? b. If so, is it at least as likely as not (50 percent probability or greater) that his seminoma or any related residuals are related to service, to include the Veteran’s exposure to herbicide agents? A complete rationale should be provided for all opinions. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents and comment on whether such exposure caused his right testicular seminoma and any related residuals. The examiner may not rely solely on the fact that testicular seminoma is not on the presumptive list of diseases associated with herbicide agent exposure. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. 4. After completion of directive #1, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s pancreatic disability. All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should provide responses to the following: a. Identify all diagnosed pancreatic disabilities. b. For each diagnosed pancreatic disability, opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disability had its onset during service or is otherwise related to service, to include herbicide agent exposure. A complete rationale should be provided for all opinions. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents and comment on whether such exposure caused his pancreatic disability(ies). The examiner may not rely solely on the fact that pancreatic disabilities are not on the presumptive list of diseases associated with herbicide agent exposure. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is the case. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Thompson, 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.