Citation Nr: 20045786 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 18-14 717 DATE: July 9, 2020 ORDER As new and material evidence has been received, the claim of entitlement to service connection for cancer is reopened. REMANDED Entitlement to service connection for cancer, to include any residuals from throat and/or esophageal cancer, is remanded. FINDINGS OF FACT 1. In an April 2015 VA rating decision, the claim for entitlement to service connection for cancer was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year thereafter. 2. The evidence received since the April 2015 VA rating decision, regarding service connection for cancer, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2015 VA rating decision, denying service connection for cancer is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2019). 2. New and material evidence has been received since the April 2015 VA rating decision to reopen service connection for cancer. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1973 to October 1976. Before reaching the merits of the claim for cancer, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue on appeal accordingly. The issues of entitlement to compensation pursuant to 38 U.S.C. § 1151 were certified to the Board in June 2020 and current pending for a Board hearing as requested by the Veteran in the June 2020 VA Form 9, thus these issues will be addressed in a separate Board decision under a different docket number in docket order. See 38 U.S.C. § 7107(a) (2019). The issues of entitlement to service connection for degenerative joint disease (DJD) of the left knee, DJD of the left ankle, depressive disorder, hiatal hernia, and gastroesophageal reflux disease (GERD) were remanded by the Board under a different docket number in June 2019 and have not yet been returned to the Board for further appellate review. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cancer The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In the April 2015 VA rating decision, service connection for cancer was denied because the available evidence of record did not show a current diagnosis. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the April 2015 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. Evidence received since the April 2015 VA rating decision includes a December 2014 private treatment record associated with the claims file in January 2020 from King’s Daughters Medical Center that notes a final diagnosis from lower esophagus biopsy of intramucosal carcinoma. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the April 2015 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND Entitlement to service connection for cancer, to include any residuals from throat and/or esophageal cancer As noted above, review of private treatment records shows that a December 2014 private treatment record from King’s Daughters Medical Center notes a final diagnosis from lower esophagus biopsy of intramucosal carcinoma. Review of private treatment records also show the Veteran’s past medical history includes throat cancer and esophageal cancer, and “esophageal cancer . . . has had chemo . . . no [follow up] at VA” in February 2020. Review of VA treatment records further show the Veteran’s medical history included “lung cancer and throat cancer per [patient and] esophageal cancer removed early [March 2015]” in April 2018, “throat cancer three years ago, received chemo[therapy]” in June 2018, “skin cancer” in April 2019, and throat cancer” in November 2019. Most recently, at the February 2020 Board hearing, the Veteran asserted that his cancer was a progression of his GERD, and that he was diagnosed with cancer and receives follow-up care at King’s Daughters, cancer was cut out at Lexington, and he underwent surgery at the University of Kentucky (UK) Hospital in Kentucky. Additionally, review of the Veteran’s service treatment records document his in-service reports and treatment for sore throat and difficulty swallowing. The issue of service connection for GERD is currently in remand status. However, the theory of secondary service connection remains a possibility depending on the outcome of the GERD claim. As such, the Board finds that additional development is needed to determine the etiology of the Veteran’s cancer, to include any residuals from throat and/or esophageal cancer. 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309(a) (2019); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, while the Veteran submitted private treatment records from the King’s Daughters Medical Center dated in December 2014, November 2019, and February 2020, a remand is needed to obtain identified outstanding potentially relevant private treatment records from that facility as well as the UK Hospital in Lexington, Kentucky. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his reported cancer, to include any residuals from throat and/or esophageal cancer, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility and/or provider identified by the Veteran, to include King’s Daughters Medical Center in Ashland, Kentucky and UK Hospital in Lexington, Kentucky. If these records cannot be located, the AOJ must specifically document the attempts that were made to locate them and the Veteran must be notified. 2. Then, provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s cancer, to include any residuals from throat and/or esophageal cancer. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. An examination (physical or telehealth) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: A December 2014 private treatment record from King’s Daughters Medical Center notes a final diagnosis from lower esophagus biopsy of intramucosal carcinoma. Service treatment records shows reports and treatment for sore throat and difficulty swallowing The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s intramucosal cancer, to include any residuals from throat and/or esophageal cancer, (i) began during active service, (ii) is related to an incident of service, to include symptoms of throat pain and difficulty swallowing during service, or (iii) symptoms of cancer began within one year after discharge from active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s intramucosal cancer, to include any residuals from throat and/or esophageal cancer, was proximately due to or the result of his GERD. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s intramucosal cancer, to include any residuals from throat and/or esophageal cancer, was aggravated beyond its natural progression by his GERD. 3. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, review the examination report and medical opinion to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 5. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.