Citation Nr: 20026094 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-23 770 DATE: April 15, 2020 ORDER The application to reopen the claim for service connection for oral pharynx cancer is granted. Entitlement to service connection for oral pharynx cancer is granted. FINDING OF FACT 1. In an unappealed January 2002 rating decision the Regional Office denied service connection for squamous cell carcinoma of the right tonsil. 2. Evidence received since the January 2002 rating decision relates to an unestablished fact necessary to substantiate a claim for service connection for tonsil cancer. 3. The Veteran’s squamous cell carcinoma of the tonsils is attributable to service. CONCLUSION OF LAW 1. The January 2002 rating decision denying service connection for squamous cell carcinoma of the right tonsil is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for squamous cell carcinoma of the right tonsil, now characterized as oral pharynx cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Squamous cell carcinoma of the tonsils was incurred in service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1971. He had service in Vietnam. The Veteran attended a Board videoconference hearing in December 2019. With respect to the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal as service connection for carcinoma of the oral pharynx, explained the concepts of service connection and presumptive service connection due to herbicide exposure, enquired as to whether there was additional outstanding evidence, identified potential evidentiary defects, and held the file open for 90 days for additional evidence to be submitted. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. New and Material Evidence A claim was previously denied in an unappealed January 2002 rating decision. The Regional Office denied the claim essentially because there was no evidence of a nexus between the service and his cancer.   In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider whether new and material evidence has been received warranting the reopening of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In connection with the claim to reopen, the Veteran provided testimony and additional medical records detailing his diagnosis and treatments for oral pharynx cancer. In addition, he has submitted three positive nexus opinions in support of his claim tending to show that his cancer may be due to in-service exposure to herbicides. The low threshold to reopen has been met, the application to reopens the claim are granted. See 38 C.F.R. § 3.156 (a), Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Service connection for carcinoma of the oral pharynx (tonsil cancer) The Veteran asserts that his cancer of the tonsils is due to service, specifically presumed herbicide exposure during his service in Vietnam. Service records confirm the Veteran served on active duty in Vietnam and his exposure to herbicide agents is presumed. Treatment records show the Veteran had squamous cell carcinoma in both tonsils. Squamous cell carcinoma of the tonsils is not on the list of herbicide presumptive disabilities. Thus, the regulations pertaining to presumptive service connection based on exposure to herbicides are not applicable to this appeal. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. This does not preclude the Veteran from establishing service connection with proof of direct causation, and the Board has considered service connection for this disability as due to exposure to herbicide agents on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Board concludes the evidence supports a finding that a nexus exists between squamous cell carcinoma of the tonsils and service. Service treatment records do not show complaints or treatments for any tonsil or other cancers. He was found to have a normal clinical evaluation of the head, neck, mouth, and throat at his October 1971 separation examination. He reported chronic or frequent colds and sinusitis on the October 1971 separation Report of Medical History. The Board notes the Veteran has not claimed he had any tonsil problems or cancer during service or prior to 1998. Private treatment records show the Veteran complained of a neck mass in March 1998 that cytology indicated was squamous cell carcinoma. The Veteran reported smoking in the past but not in the last 20 years. See March 1998 Private Treatment Notes. The Veteran’s wife reported a lesion on his right tonsil in a March 1998 followup phone call. See March 1998 Referral Letter. Examination of the right tonsil revealed a firm mass confined to the tonsil, and biopsy confirmed squamous cell carcinoma of the right tonsil. See April 1998 Medical Note. The Veteran underwent a six-week course of radiation therapy resulting in complete disappearance of his right tonsil tumor. The remaining neck tumor was dissected in August 1998. See August 1998 Discharge Summary. In August 2016 the Veteran reported a new lesion on his left tonsil in a followup with Dr. W.P.S., the Veteran’s private otolaryngologist. Dr. W.P.S. stated that, with this new lesion in his previous history of tonsillar cancer, the lesions very well could be caused by Agent Orange exposure. See August 2016 ENT Notes. A wide local excision was performed, and a September 2016 biopsy report shows invasive squamous cell carcinoma of the left tonsil. The Veteran submitted private nexus opinions to support his claim. A September 2016 letter from Dr. W.P.S. notes the Veteran’s treatments for cancer in both tonsils with metastases to the neck. Dr. W.P.S. stated it is very unusual to have two squamous cell carcinomas in the same area of the aerodigestive tract this widely separated apart in a nonsmoker. He concluded that, with these findings, he is convinced that the Veteran’s tonsillar cancers are related to Agent Orange or other herbicide exposure in Vietnam. See September 2016 Dr. W.P.S. Nexus Letter. A November 2016 letter from Dr. J.P.L. stating that the Veteran had Agent Orange exposure and was diagnosed with head and neck cancer 18 years prior that required needle biopsy, radiation therapy, and surgery, and that recent examination and biopsy revealed a new squamous cell carcinoma lesion on his left tonsil. Dr. J.P.L. concluded it is likely as not likely to be related to Agent Orange exposure. See November 2016 Dr. J.P.L. Nexus Letter. A February 2020 letter from Dr. W.P.S. concludes that the Veteran’s tonsil lesions are service connected to the Veteran’s exposure to Agent Orange and other herbicides in Vietnam. Dr. W.P.S. states the Veteran was exposed to Agent Orange in Vietnam. The Veteran has no significant smoking history and that the Veteran smoked for a few years while in Vietnam and quit after leaving the country. He also admits to one beer a month for alcohol intake. Dr. J.P.L. stated the Veteran has no other known exposures to carcinogens or any other chemicals other than Agent Orange that he was aware of. The Veteran’s initial tumor was P16 negative, which ruled out the possibility of human papilloma virus as a cause for the carcinoma. His second tumor was also HPV negative. The only cause Dr. W.P.S could think of for the Veteran’s two widely separated malignancies of the aerodigestive tract is exposure to Agent Orange. See February 2020 Dr. W.P.S. Nexus Letter. The Veteran testified at a Board videoconference hearing in December 2019. The Veteran stated that his ENT doctor had told him that one of the functions of the tonsils is to catch toxins, and that Agent Orange is a toxin. His representative also argued the Veteran’s cancer should be service connected under 38 C.F.R. § 3.309(e) as it has a close relationship to the respiratory system. See December 2019 Hearing Transcript. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the representative’s argument that the Veteran’s cancer should be service connected under 38 C.F.R. § 3.309(e). However, 38 C.F.R. § 3.309 (e) clearly defines the respiratory cancers as including those of the lung, bronchus, larynx, or trachea. The Veteran’s squamous cell carcinoma of the tonsils is not such a cancer. In addition, there is no argument or evidence suggesting that the squamous cell carcinoma is a soft tissue sarcoma, another disease listed in 38 C.F.R. § 3.309(e). Regarding the medical opinions the Veteran submitted, for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Id. at 304 (2008). The November 2016 nexus opinion from Dr. J.P.L. is of little probative value. The opinion restates medical data and contains a conclusion without any rationale or analysis connecting the data and his conclusion. However, it remains evidence that must be considered. The Board also finds the September 2016 opinion from Dr. W.P.S. to be of little probative value. The opinion restates medical findings and, although Dr. W.P.S. noted it was unusual to have two squamous cell carcinomas in the same area of the aerodigestive tract that widely separated apart, did not offer any rationale as for why he concluded the Veteran’s tonsillar cancers were related to herbicide exposure. In addition, Dr. W.P.S. stated the Veteran was a nonsmoker. While the Veteran does not currently smoke, he has smoked in the past. Again, the document remains positive evidence. The February 2020 letter is of little probative value for similar reasons. Dr. W.P.S. included a more detailed discussion of the Veteran’s risk factors for tonsil cancer. However, little rationale was offered as to why Dr. W.P.S. believed the Veteran should be service connected for tonsil cancer. Dr. W.P.S. determined that the only cause he could think of for the Veteran’s two widely separated tonsil malignancies of the aerodigestive tract is exposure to Agent Orange. This conclusion is speculative as to the cause of the Veteran’s cancer. However, despite inadequacies, it is positive evidence, rather than no evidence. Regarding the Veteran’s testimony and lay statements, he is competent to report what his doctors have told him and to describe symptoms he experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has also submitted six prior Board decisions granting service connection for squamous cell carcinoma and tonsil cancers. Board decisions are not precedential, and “previously issued Board decisions will be considered binding only with regard to the specific case decided. However, the AOJ did not obtain an opinion in regard to this Veteran, instead citing to studies, presumably whether presumptive service connection should be granted. However, this is not a grant based upon presumptive service connection. This is a   section 3.303(d) type grant. Although the positive evidence in this case is weak, we are left with no negative evidence. Since the preponderance of the evidence is not against the claim, the benefit sought on appeal is granted. The AOJ could have obtained an opinion, but did not. We shall not remand. We are mindful of dicta by the Court that Remanding for negative evidence is frowned upon. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.