Citation Nr: 21000163 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-12 644 DATE: January 4, 2021 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer) is reopened. REMANDED Entitlement to service connection for squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer) is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is remanded. FINDINGS OF FACT 1. In a January 2006 rating decision, the Nashville, Tennessee, Regional Office of the Department of Veterans Affairs denied the Veteran’s claim for service connection for lymphoma (currently claimed as tonsillar cancer). The Veteran did not properly appeal that decision, nor was new and material evidence submitted within one year of that decision. 2. Evidence received since the January 2006 rating decision is neither cumulative nor redundant of the prior evidence, and it shows a reasonable possibility of substantiating the Veteran’s claim for service connection. CONCLUSIONS OF LAW 1. The January 2006 rating decision that denied service connection for lymphoma (currently claimed as tonsillar cancer) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for reopening the previously denied claim for service connection for lymphoma (currently claimed as tonsillar cancer) have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1970 until his honorable discharge in December 1972. The Veteran died in October 2017, and the appellant is the Veteran’s surviving spouse (Appellant) who has been substituted in his place to pursue his claim for service connection for tonsillar cancer, and who has filed her own claims for service connection for the Veteran’s cause of death and for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. This case has a relatively unique procedural history that must be discussed in order to address the current claims on appeal adequately. The rating decisions currently on appeal are an October 2011 rating decision by the Jackson, Mississippi, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied reopening a claim for service connection for lymphoma (currently claimed as tonsillar cancer); and a December 2017 rating decision by the Milwaukee, Wisconsin, RO of VA, which denied Appellant’s claims for DIC and service connection for cause of the Veteran’s death. In October 2005, the Veteran filed a claim for service connection for T2M2 squamous cell carcinoma of the left tonsil, which the RO characterized as lymphoma. In a January 2006 rating decision, the RO denied his claim. The Veteran did not file a notice of disagreement as to the decision, appeal the decision, or submit additional evidence within one year of the rating decision. Thus, the January 2006 rating decision became final. In August 2011, the Veteran filed to reopen his previous claim for service connection for lymphoma (currently claimed as tonsillar cancer). In an October 2011 rating decision, the RO denied reopening the Veteran’s claim. The Veteran filed a timely notice of disagreement. The RO issued a statement of the case (SOC) in March 2014 continuing its denial to reopen the case, from which the Veteran timely appealed. In October 2017, the Veteran died. In October 2017, his surviving spouse filed a claim for Dependency and Indemnity Compensation (DIC), survivor pension benefits, and service connection for cause of the Veteran’s death. October 2017 VA Form 21-534. She also filed a request for substitution in the Veteran’s pending service-connection appeal for lymphoma. October 2017 VA Form 21-0847. In December 2017, the Milwaukee, Wisconsin, RO of VA denied Appellant’s claims for DIC, service connection for cause of the Veteran’s death, and survivor pension benefits. In January 2018, Appellant timely filed a notice of disagreement. In March 2019, VA granted Appellant the right to substitute in for the Veteran’s service-connection claim for lymphoma. Thereafter, the RO issued a SOC in March 2019 continuing denial of Appellants claims for DIC, service connection for cause of the Veteran’s death, and survivor pension benefits, from which the Appellant filed a timely appeal. In September 2019, Appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, Appellant withdrew her appeal as to survivor pension benefits. During the hearing, the undersigned held the record open for 30 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. In December 2019, the Board issued as decision staying the claims for service connection for lymphoma, service connection for the cause of the Veteran’s death, and DIC. These matters were stayed until the enactment of the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), Pub. L. No. 116-23, 133 Stat. 966, on January 1, 2020, because the Veteran’s military record indicated service in Vietnam. In June 2020, the Board removed the stay on the pending claims and remanded the case to the RO for further development. Specifically, the Board directed the RO to conduct adequate inquiry into the Veteran’s service in Vietnam, to include whether such included service within 12 nautical miles thereof; to obtain a VA examiner’s opinion regarding Appellant’s claims for service connection for lymphoma and cause of death; and to readjudicate the claims. The Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. New and material evidence having been submitted, the claim for entitlement to service connection for lymphoma (recharacterized as tonsillar cancer) is reopened. Recharacterizing the Veteran’s/Appellant’s Claim It is “beyond question” that “the Secretary has a duty to sympathetically read a pro se veteran’s filings to determine whether a claim has been raised.” Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007). In this case, the RO characterized the Veteran’s claim as one for “lymphoma,” but the Board finds it is appropriate to recharacterize the Veteran’s/Appellant’s claim as one for service connection for “squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer).” See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (A veteran “[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his [or her] . . . condition, whatever that is, causes him [or her].”) In accordance with the Board’s June 2020 remand directives, the RO obtained a September 2020 medical opinion from a VA examiner as to the Veteran’s lymphoma. The examiner was asked to opine whether the Veteran had Hodgkins disease, non-Hodgkins lymphoma, or any form of respiratory cancer during his lifetime. The VA examiner opined, after review of the Veteran’s relevant medical records, it was less likely than not that the Veteran had Hodgkins disease, non-Hodgkin’s lymphoma, or respiratory cancer during his lifetime. Absent evidence to the contrary, the Board finds the September 2020 VA examiner was competent to render her opinions. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner was credible as there was no evidence the examiner had motive to lie or was bias in any respect. Buchanan, 451 F.3d at 1337. The Board finds the opinions probative as to the Veteran’s diagnosis of his tonsillar cancer based on the examiner’s thorough review of the Veteran’s medical records and well-reasoned rationale in support of her opinions. According to a June 2012 VA Addendum, the Veteran’s treating VA physician diagnosed the Veteran with “T2/T3 N2b squamous cell carcinoma of the left tonsil with lateral lymph nodes, which is ‘in contrast to ‘lymphoma.’” Likewise, the Veteran’s non-VA treating physicians previously diagnosed the Veteran with “tonsillar cancer” and “T2N2a squamous cell carcinoma of the left tonsil” in May 2005. See July 2005 West Clinic Correspondence from Dr. JB (received by VA in October 2005); June 2005 Hodge Group Correspondence from Dr. CH (received by VA in October 2005). Based on the competent, credible, and probative evidence of record, the Board finds the Veteran’s disability is best characterized as “squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer)” rather than “lymphoma.” This conclusion solely relates to the Veteran’s diagnosis and characterization of his disability on appeal. The Board makes no factual or legal finding as to any other issue on appeal. New and Material Evidence To appeal a rating decision, the appellant must file a “notice of disagreement” “within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction.” 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 19.2(c). If no notice of disagreement is filed within the prescribed period, the action or decision of the agency of original jurisdiction becomes final from the date notice was mailed. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Here, the Veteran’s claim for service connection for tonsillar cancer was adjudicated by a rating decision issued on January 18, 2006, and was mailed to the Veteran on January 20, 2006. The Veteran did not file a timely notice of disagreement or otherwise submit additional evidence within one year following the mailing of the rating decision. Therefore, the January 18, 2006 rating decision became final on January 20, 2006. For the purposes of reopening claims decided by the agency of original jurisdiction (AOJ) before February 19, 2019 (the effective date of the Veterans Appeals Improvement and Modernization Act of 2017), such claims are still considered “legacy appeals” and are to be analyzed under VA’s traditional “legacy” process. See 38 C.F.R. § 3.156(a); 38 C.F.R. § 3.2400(b). Under the legacy process, a veteran “may reopen a finally adjudicated legacy claim by submitting new and material evidence.” 38 C.F.R. § 31.56(a). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is “new and material.” Id. If it is, the Board must then reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Id. “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 and must raise a reasonable possibility of substantiating the claim.” Id. The language of section 3.156(a) “does not require new and material evidence as to each previously unproven element of a claim”; instead, it compels reopening whenever a claimant submits new and material evidence “as to an unestablished fact from the previously denied claim.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence to raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold, rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim were reopened, reasonably substantiate the claim, to include triggering VA’s duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 117‒19, but not including “presentation of new arguments based on evidence already of record at the time of the previous decision,” Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added). Is the evidence new? “New evidence” “is evidence not previously part of the actual record before agency adjudicators.” 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the January 2006, and October 2011 rating decisions, there has been a vast amount of new evidence submitted, including, but not limited to, the Veteran’s up-to-date VA medical records, evidence relating to the Veteran’s service aboard the U.S.S. Constellation in the waters surrounding Vietnam in 1972, and VA medical opinions provided in September 2020. Of particular importance is the Veteran’s service on the U.S.S. Constellation in April 1972 because his vessel was located within 12 nautical miles of the shores of Vietnam. Thus, VA conceded the Veteran was exposed to herbicide agents under the BWN Act. See August 2020 VA Memorandum. None of the foregoing evidence was part of the actual record before the RO in January 2006. Thus, the evidence is “new.” Is the evidence material? “Material evidence” means “evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In the January 2006 rating decision, the RO found the Veteran did not have a diagnosis of lymphoma and did not have an in-service onset of lymphoma nor did his condition begin within one year following separation from service. The RO did not address whether a medical nexus existed between the Veteran’s claimed lymphoma and his military service because it dismissed any connection with exposure to herbicide agents without medical evidence. The October 2011 rating decision denied reopening the Veteran’s claim because there was still no diagnosis of lymphoma that began in service or within one year following the Veteran’s separation from service. A March 2014 SOC likewise denied reopening the Veteran’s claim because there was no diagnosis of lymphoma, and also because it found that his tonsillar cancer was not associated with herbicide agents. Again, the Board notes this conclusion was reached without medical evidence. A September 2020 supplemental statement of the case (SSOC) reached the same conclusion based on the same reasoning. The Board finds the new evidence associated with the Veteran’s service on the U.S.S. Constellation within 12 nautical miles of the shores of Vietnam as well as VA’s concession that the Veteran was exposed to herbicide agents is material evidence, as are his up-to-date medical records including the 2020 VA medical opinion. This evidence reasonably relates to the unestablished fact of whether the Veteran experienced an in-service event related to his tonsillar cancer, to the Veteran’s medical diagnosis, and whether a medical nexus between his disability and in-service event exists in this case. Conclusion Accordingly, the evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim of entitlement to service connection for tonsillar cancer is reopened. REASONS FOR REMAND 2. Entitlement to service connection for squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer) is remanded. The Veteran filed a claim in October 2005 but did not list a specific disability. In a November 2005 statement in support of claim, the Veteran identified his disability as “T2M2 squamous cell carcinoma of the left tonsil.” The Veteran cited exposure to Agent Orange as a cause for his tonsillar cancer. The RO denied the Veteran’s claim for service connection in a January 2006 rating decision because: (1) there was no medical diagnosis that his tonsillar cancer was clinically diagnosed, and (2) his tonsillar cancer was not associated with Agent Orange. Contrary to the RO’s findings, the Veteran did submit medical documentation that he had tonsillar cancer as of May 2005 for which he underwent chemotherapy. July 2005 West Clinic Correspondence from Dr. JB (received by VA in October 2005); June 2005 Hodge Group Correspondence from Dr. CH (received by VA in October 2005). Consequently, the RO did not provide the Veteran with a VA medical examination to determine whether there was a medical nexus between his tonsillar cancer and exposure to Agent Orange on a direct service connection basis, as opposed to a presumptive basis. In an October 2011 rating decision and a subsequent March 2014 SSOC, the RO denied the Veteran’s request to reopen his service-connection claim citing the same reasons as in its January 2006 rating decision. Most recently, in a September 2020 SSOC, the RO did not address whether the Veteran’s claim for service-connection was reopened; instead, it adjudicated the claim on the merits. In doing so, the RO denied the Veteran’s claim for service connection because: (1) the September 2020 VA medical opinion did not diagnose the Veteran’s tonsillar cancer as lymphoma, (2) his tonsillar cancer was not incurred or caused by military service or manifest within one year following service, and (3) was not shown to be due to exposure to herbicide agents. Notably, VA conceded exposure to herbicide agents under the BWN Act. The main problem with these conclusions is that they overlook any reasonable connection between the Veteran’s tonsillar cancer and herbicide-agent exposure on a direct service-connection basis, as opposed to a presumptive basis. On review of the record, the Board has not located a medical opinion that addresses whether the Veteran’s tonsillar cancer was at least as likely as due to his presumed herbicide-agent exposure. See Combee v. Brown, 34 F.3d 1039, 1043‒44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to presumptive service connection the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). At each turn, the RO erroneously assumed, without citation to any medical evidence of record, that the Veteran’s tonsillar cancer was not due to herbicide-agent exposure. Accordingly, a remand is necessary to obtain a VA medical opinion on whether the Veteran’s tonsillar cancer was at least as likely as not due to his herbicide-agent exposure on a direct basis, rather than a presumptive basis. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 3. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Veteran’s cause of death on his death certificate states the immediate cause of death was metastatic hepatocellular carcinoma, with underlying causes being (1) malignant hypercalcemia, (2) acute on chronic kidney disease, and (3) advanced debility, with other significant contributory causes being (1) hypertension, (2) anemia, and (3) encephalopathy. “Encephalopathy” is any disorder of the brain. Encephalopathy, Merriam-Webster Online Dictionary (medical definition), available at https://www.merriam-webster.com/dictionary/encephalopathy. In April 2020, the Board granted the Veteran an increased disability rating for his service-connected posttraumatic stress disorder (PTSD) of 100 percent, effective August 1, 2011. The RO obtained a September 2020 VA medical opinion from a psychologist who was asked to opine on whether the Veteran’s PTSD contributed to his cause of death. The examiner opined that it was less likely than not that the Veteran’s death was caused by or substantially contributed to by his service-connected PTSD. In his rationale, the examiner incorrectly stated the Veteran was rated at 50 percent for PTSD. Whether or not this influenced the examiner’s opinion is speculation on part of the Board, which requires attention. In addition, while the examiner listed some evidence, he does not appear to have considered the Veteran’s full disability picture. Among other things, the VA examiner stated the “most recent” psychiatry note was in December 2016, when in fact the Veteran’s VA medical records indicate the “most recent” psychiatry note was in August 2017. This, in addition to other parts of the examiner’s rationale, causes the Board concern in relying on this examiner’s medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (medical opinion must rely on adequate facts); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations”). Accordingly, the Board finds a new medical opinion must be obtained as to the Veteran’s cause of death as it pertains to his PTSD. Moreover, the medical opinion should be done by an approved clinician other than the September 2020 VA psychologist. 4. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is remanded. Claims are inextricably intertwined where a decision on one issue would have a significant impact upon another, and that impact in turn could render any review by an adjudicator of the decision on the other claim meaningless and a waste of judicial or administrative resources. Henderson v. West, 12 Vet. App. 11, 20 (1998); see Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated together). The Board concludes that Appellant’s claims for service connection for tonsillar cancer, DIC, and service connection for cause of the Veteran’s death are inextricably intertwined because adjudication of one could significantly change the adjudication of another claim. Henderson, 12 Vet. App. 20. In addition, in the interest of judicial economy, the Board finds Appellant’s claims should be resolved together rather than piecemeal given their connections. Gober, 236 F.3d at 1372. Accordingly, the matters are REMANDED for the following actions: 1. Obtain a VA medical opinion (no examination is necessary as the Veteran is deceased) from an appropriately qualified clinician as to the onset and etiology of the Veteran’s squamous cell carcinoma of the throat and/or tonsils (tonsillar cancer). The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s tonsillar cancer had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include herbicide-agent exposure. In rending his or her opinion, the examiner is advised of the following: (a.) VA has conceded that the Veteran was presumptively exposed to herbicide agents while serving on the U.S.S. Constellation in April 1972, which was located within 12 nautical miles of Vietnam at that time. (b.) A September 2020 VA medical examiner opined that the Veteran’s tonsillar cancer was not diagnosed as Hodgkin’s disease, non-Hodgkin’s lymphoma, or any form of respiratory cancer, nor did he have any of these illnesses during his lifetime. If the examiner disagrees with the September 2020 VA medical examiner, he/she must provide a detailed rationale supporting his/her conclusion. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he was competent to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of tonsillar cancer in service or the assertion that an in-service event, injury, or illness led to his tonsillar cancer. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear rationale for the opinion(s) and a discussion of the facts and medical principles involved should be provided as it will be of considerable assistance to the Board. If the examiner relies on medical treatises, the examiner must identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 2. Obtain a medical opinion from an appropriately qualified clinician, other than the September 2020 VA staff psychologist, Benjamin R. D’Angelo, Ph.D., as to the relation, if any, between the Veteran’s service-connected PTSD and his cause of death. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion on whether it is at least as likely as not (50 percent probability or more) that the Veteran’s service-connected PTSD: (a.) primarily caused his death; (b.) substantially contributed to his death; (c.) resulted in debilitating effects and general impairment of his health to an extent that would render him materially less capable of resisting the effects of the diseases primarily caused his death; or (d.) was of a progressive or debilitating nature, such that it had a material influence in accelerating his death? In rending his or her opinion, the examiner’s attention is directed to the following information: (a.) In April 2020, the Veteran’s service-connected PTSD was rated at 100 percent, effective August 21, 2011. (b.) The Veteran’s death certificate lists “encephalopathy” as a significant contributory cause of his death. In addition, the examiner is also asked to explain whether there is any medically reasonable relation between the Veteran’s service-connected PTSD and his encephalopathy? Please explain. A clear rationale for the opinions and a discussion of the facts and medical principles involved should be provided as it will be of considerable assistance to the Board. If the examiner relies on medical treatises, the examiner must identify the treatises. (Continued on the next page)   If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 3. The AOJ is not limited to the foregoing actions. The AOJ should pursue development of all information to its logical conclusion, with VA’s duty to assist in mind. Once all reasonable and necessary actions are completed, readjudicate the claims on appeal. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.