Citation Nr: 21062968 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-10 570 DATE: October 12, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for squamous cell carcinoma of the base of the tongue and vallecula; the appeal to reopen is granted. Entitlement to service connection for squamous cell carcinoma of the base of the tongue and vallecula is granted. FINDINGS OF FACT 1. In an October 2007 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for squamous cell carcinoma of the base of the tongue and vallecula. The Veteran did not perfect an appeal of the decision or submit new and material evidence within one year of the decision. 2. The evidence pertaining to the Veteran's squamous cell carcinoma of the base of the tongue and vallecula submitted after the October 2007 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 3. The evidence of record is at least in relative equipoise as to whether his current squamous cell carcinoma of the base of the tongue and vallecula is related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The October 2007 denial of the claim for service connection for squamous cell carcinoma of the base of the tongue and vallecula is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. As additional evidence received since the October 2007 denial is new and material, the criteria for reopening the claim for service connection for squamous cell carcinoma of the base of the tongue and vallecula, are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The criteria for entitlement to service connection for squamous cell carcinoma of the base of the tongue and vallecula have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for squamous cell carcinoma of the base of the tongue and vallecula The Veteran's claim for service connection for squamous cell carcinoma of the base of the tongue and vallecula, was denied in an October 2007 rating decision, based on a finding that the Veteran's squamous cell carcinoma of the base of the tongue and vallecula was not related to his active service to include his presumed exposure to herbicides. The Veteran did not perfect a timely appeal of the October 2007 decision, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. Generally, a claim which has been denied in an unappealed VA regional office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Regardless of the determination reached by the RO, the Board must find new and material evidence to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the last final denial of October 2007 includes a May 2015 private medical opinion indicating that the Veteran's current squamous cell carcinoma of the base of the tongue and vallecula may be related to his active service to include his presumed exposure to herbicides. The Board finds that the newly submitted evidence is material; therefore, it provides a basis for reopening the Veteran's claim for service connection for squamous cell carcinoma of the base of the tongue and vallecula. 2. Entitlement to service connection for squamous cell carcinoma of the base of the tongue and vallecula The Veteran contends that his squamous cell carcinoma of the base of the tongue and vallecula warrants entitlement to service connection. Specifically, the Veteran asserts that his squamous cell carcinoma of the base of the tongue and vallecula is directly related to his active service, including his presumed exposure to herbicides in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A Veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). The claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, treatment records indicate that the Veteran has a current diagnosis of squamous cell carcinoma of the base of the tongue and vallecula. A current disability has therefore been demonstrated. Additionally, the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, an in-service injury has been shown. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed squamous cell carcinoma of the base of the tongue and vallecula and his in-service disease or injury. The Veteran submitted a May 2015 private assessment from Dr. H.H. regarding his squamous cell carcinoma of the base of the tongue and vallecula. Dr. H.H. stated that he saw "no significant difference in your case (a nonsmoker, nondrinker exposed to Agent Orange developing oropharyngeal cancer), when compared to the case of the Veterans scenarios that you presented to me your mailing (similar exposure to Agent Orange for oropharyngeal squamous cell cancer)". Dr. H.H. further stated that based on this similarity, "I would offer my support for your similar support through the VA system". In a September 2015 letter, Dr. A.V. stated that after a review of the Veteran's records, he saw "no significant difference in your case (a nonsmoker, nondrinker exposed to Agent Orange developing Oropharyngeal cancer), when compared to the case of the Veterans scenarios that you presented me". Dr. A.V. further stated that "[b]ased on this similarity, I would offer my support for your appeal to be awarded 100% compensation secondary to your Agent Orange exposure." The Board finds that the probative medical evidence of record is in favor of finding that the Veteran's squamous cell carcinoma of the base of the tongue and vallecula is related to his active military service, including his presumed exposure to herbicides in Vietnam. The Board finds the May 2015 and September 2015 private medical opinions from Dr. H.H. and Dr. A.V. to be probative because they provided an adequate rationale based on the medical evidence of record. Furthermore, there is no medical opinion of record that directly contradicts this opinion. Accordingly, the Board finds that service connection for squamous cell carcinoma of the base of the tongue and vallecula is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.