Citation Nr: 20007102 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-25 644 DATE: January 28, 2020 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for stage IV squamous cell carcinoma of the right tonsil due to exposure to Agent Orange (right tonsil cancer) is reopened. REMANDED Entitlement to service connection for stage IV squamous cell carcinoma of the right tonsil due to exposure to Agent Orange (right tonsil cancer) is remanded. FINDINGS OF FACT 1. In a February 2012 rating decision, the RO denied service connection for stage IV squamous cell carcinoma of the right tonsil due to exposure to Agent Orange (right tonsil cancer). The Veteran did not appeal that decision, and new and material evidence was not received within the one year following the decision; the February 2014 rating decision became final. 2. Evidence added to the record since the February 2012 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of service connection for right tonsil cancer. CONCLUSION OF LAW New and material evidence has been received since the October 2014 rating decision denying entitlement to service connection for stage IV squamous cell carcinoma of the right tonsil due to exposure to Agent Orange (right tonsil cancer); the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1964 to December 1967. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an August 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for right tonsil cancer. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The RO initially denied the Veteran’s claim for service connection for right tonsil cancer in a February 2001 rating decision on the basis that his right tonsil cancer was not found to be related to his active service. This denial of service connection became final, as the Veteran did not initiate an appeal of the RO’s rating decision, nor was any new and material evidence received within the one-year period following the decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The rating decisions in June 2008 and February 2012 denied the reopening of the Veteran’s claim of service connection for right tonsil cancer, however, the Veteran did not appeal the decisions and they also became final. The Veteran requested to reopen his right tonsil cancer claim in November 2013, and the RO reopened the claim in the August 2014 rating decision, but denied the underlying service connection claim. Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). The Board must now determine whether new and material evidence has been submitted since the February 2012 rating decision sufficient for the reopening of the Veteran’s claim. To that end, the Veteran submitted statements contending that during his service aboard the U.S.S. Enterprise, maneuvers and exercises took the vessel within 12 nautical miles of the coastal land of Vietnam. This evidence is new as it was not of record at the time of the previous final denials. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran’s claim. Again, the February 2001 rating decision denied the Veteran’s claim on the basis that his disability was not shown to be incurred or related to his active service. The new evidence establishes the reasonable possibility that the Veteran was exposed to Agent Orange onboard the U.S.S. Enterprise. As such, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for stage IV squamous cell carcinoma of the right tonsil due to exposure to Agent Orange (right tonsil cancer) is remanded. The Veteran contends that his right tonsil cancer is related to his active service, to include exposure to herbicides. The Veteran specifically contends that while serving on the U.S.S. Enterprise he was exposed to Agent Orange. The Veteran contends that the while aboard the U.S.S. Enterprise, he traveled within 12 nautical miles of Vietnam. For purposes of determining presumptive exposure to herbicide agents, the term “Service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Veteran’s military personnel record indicates that he was assigned to the U.S.S. Enterprise between approximately May 1966 and December 1967 The deck logs of the U.S.S, Enterprise indicate that the ship conducted sea operations at Yankee Station in the Gulf of Tonkin December 18, 1966 to January 16, 1967, and in 1967 from February 1 to March 2, March 22 to April 17, April 29 to May 27, and June 4 to June 21. The deck logs document that on February 19, 1967, the U.S.S. Enterprise navigated to coordinates that placed the ship within 12 nautical miles offshore of Vietnam. Therefore, the Veteran is presumed to have been exposed to tactical herbicide agents during his active service. The Board notes that squamous cell carcinoma is not on the list of diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on a direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The May 2014 VA examination did not address the Veteran’s theory of direct service connection, to include as due to exposure to herbicides. As such, further medical guidance is necessary to determine the etiology of the Veteran’s squamous cell carcinoma. The matters are REMANDED for the following actions: Obtain an opinion from a suitably-qualified medical professional (“reviewer”) as to whether the Veteran’s squamous cell carcinoma of the right tonsil is related to his active service, to include his presumed exposure to tactical herbicide agents. If the reviewer determines that additional examination is needed prior to rendering this opinion, such should be scheduled, and the Veteran sent appropriate notice. Regardless of whether an examination is performed, the reviewer must provide an opinion as to whether it is at least as likely as not that the Veteran’s squamous cell carcinoma of the right tonsil is related to his active service, to include his presumed exposure to tactical herbicide agents. *A rationale must be provided for any opinion expressed. That squamous cell carcinoma of the right tonsil is not among the 3.309(e) conditions presumptively related to herbicide exposure is insufficient, and an explanation concerning the pathology of the Veteran’s squamous cell carcinoma of the right tonsil and any possible relation to the Veteran’s conceded exposure to Agent Orange during the Vietnam War is needed. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins 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.