Citation Nr: 21062841 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-17 971 DATE: October 12, 2021 ORDER As new and material evidence has been submitted regarding the claim for service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement, the claim is reopened. Entitlement to service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement is granted. FINDINGS OF FACT 1. By a December 2013 rating decision, the Veteran's claim for service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement was denied due to a lack of in-service symptoms, a lack of documentation of a relationship between this disability and service, and a lack of a pertinent diagnosis that manifested to a compensable degree within one year from discharge from service. 2. Evidence received since the December 2013 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim. 3. The most probative evidence of record shows the Veteran's adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement was etiologically related to his service. CONCLUSIONS OF LAW 1. The December 2013 rating decision denying the Veteran's claim for service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement is final. See 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence sufficient to reopen the claim of service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement has been submitted. See 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2020). 3. Service connection is warranted for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to December 1972. He died during the pendency of this appeal in February 2018, and the appellant is his surviving spouse. Under 38 U.S.C. § 5121A, a person who could be considered an accrued benefits claimant may substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The statute applies to claims of any claimant who died on or after October 10, 2008. See Pub. L. No. 110-389, 212, 122 Stat. 4145, 4151 (2008). Here, as the Veteran died in February 2018, the substitution benefits provisions apply. In a July 2018 notification letter, the Agency of Original Jurisdiction (AOJ) recognized the appellant as a substitute claimant for the Veteran's claim on appeal that was pending when he died. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2020). The first issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the previously denied claim of entitlement to service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The claim for service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement was previously denied in a December 2013 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2014). New evidence means 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) (2020). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the December 2013 denial was a lack of in-service symptoms, a lack of documentation of a relationship between the Veteran's disability and his service, and a lack of a pertinent diagnosis that manifested to a compensable degree within one year from discharge. At the time of this denial, the Veteran's service treatment records and post-service medical records were considered. The new evidence submitted since this denial consists primarily of testimony and statements from the Veteran and the appellant, as well as post-service medical records. With regard to the newly submitted medical evidence, the claims file contains a September 2020 private medical opinion linking the Veteran's parotid malignancy to exposure to Agent Orange. As the newly submitted evidence suggests that the Veteran's cancer was related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate this claim. As such, this claim is reopened. The Regional Office (RO) also reopened this claim and considered it on the merits. Turning to the issue of whether this disability is related to service, the appellant asserts that the Veteran's adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement was the result of in-service exposure to herbicides or Agent Orange. The Veteran's DD-214 Form reflects that he served in the Republic of Vietnam from July 1969 to September 1970. Therefore, the Veteran is presumed to have been exposed to herbicides, such as Agent Orange, during service based on his service in the Republic of Vietnam. 38 U.S.C. § 1116 (f) (2020). However, adenocarcinoma of the left parotid is not a recognized enumerated presumptive disease set forth in 38 C.F.R. § 3.309 (e) pertaining to herbicide exposure. The Board notes that respiratory cancer, to include lung cancer, is listed under 38 C.F.R. § 3.309 (e) as being presumptively associated with herbicide exposure. However, to the extent that the Veteran's cancer metastasized into his lungs, the evidence of record is clear that it began in his salivary gland, which is not a type of cancer presumed to be related to exposure to herbicides. Nevertheless, the Board must also consider whether service connection is warranted on a direct basis. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2020). In this regard, the Board notes that the claims file contains a September 2020 private opinion from Dr. Shoag, noting that the Veteran was diagnosed in 2010 with salivary (parotid) gland malignancy, which ultimately metastasized into his bones and internal organs, including his lungs. The physician noted that it is well-established medical principle that Agent Orange exposure results in genetic mutations of DNA, and that DNA damage does, in fact, lead to the onset and proliferations of malignancies. Parietal malignancies specifically, which are rare, are known to be caused from damage to DNA. Several studies have recently shown that there is, in fact, a higher incidence of parietal cancers and head and neck cancers in Vietnam Veterans who have had exposure to Agent Orange. Further, it is without question that with virtually all malignancies, there exists a latency period prior to onset. It has also been shown that the greater the degree of exposure both in terms of time and intensity, the greater the likelihood of DNA damage and thus cellular malignancy. The Veteran had prolonged exposure to Agent Orange during his time in the service, and it was not an isolated incident. Therefore, given all of the above, it is at least likely as not that the Veteran's parotid malignancy is service connected. The Board finds this opinion to be the most probative evidence of record on this matter, as the physician indicated that he reviewed the claims file and relevant medical evidence, and he provided a detailed rationale for his opinion. Dr. Shoag detailed his credentials in his opinion, and he is certainly competent to opine on this matter. There is no medical evidence of record to the contrary. Moreover, the Board finds that the claims file contains other medical evidence of record suggesting a link between the Veteran's condition and his service. Specifically, in a May 2015 letter, Dr. Thakkar noted that the Veteran's adenocarcinoma of the left parotid may be related to his previous environmental exposures, including those that occurred during his service, possibly Agent Orange. In a March 2017 letter, Dr. Patel noted that the Veteran had recurrent parotid cancer, which could be from environmental carcinogen exposure. In light of the fact that the most probative medical opinion of record on matter links the claimed disability to service, the Board will resolve all reasonable doubt in favor of the claimant and grant service connection for adenocarcinoma of the left parotid with facial nerve and multiple lymph node involvement. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.