Citation Nr: 21064320 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-18 287 DATE: October 19, 2021 ORDER Whether new and material evidence has been received to reopen service connection for squamous cell carcinoma of the tonsils is granted. REMANDED Entitlement to service connection for squamous cell carcinoma of the tonsils is remanded. FINDINGS OF FACT 1. The February 2011 rating decision, which denied service connection for squamous cell carcinoma of the tonsils, became final, as the Veteran did not perfect an appeal of the decision or submit new and material evidence within a year of the rating decision. 2. Since the February 2011 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran's claim for service connection. CONCLUSIONS OF LAW 1. The February 2011 rating decision denying service connection for squamous cell carcinoma of the tonsils became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103 2. New and material evidence has been received to reopen service connection for squamous cell carcinoma of the tonsils. 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 May 1966 to November 1967. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for squamous cell carcinoma of the tonsils. The claim was previously denied in a February 2011 rating decision due to there being no evidence of the condition being related to his active-duty service, to include it not being a disability to be considered for presumptive service connection under 38 C.F.R. §§ 3.307, 3.309(e). The rating decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has provided additional medical records and statements. The Board finds this evidence is new, as it has not been part of the record before, and material, as it pertains to a factor in possibly substantiating the claim for service connection, specifically, whether his disability is related to his active duty service. Therefore, the evidence is to be considered new and material, and the claim is reopened. REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's claim. Entitlement to Service Connection: Squamous Cell Carcinoma The Veteran contends that his squamous cell carcinoma of the tonsils is related to active duty, to include exposure to Agent Orange/herbicides. The Board finds that the Veteran has not been afforded a VA examination for the claim on appeal. VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2019). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the evidence of record shows the Veteran has been diagnosed with squamous cell carcinoma of the tonsils. Further, the Veteran has contended that his squamous cell cancer is related to exposure to herbicides, and his records confirm he was stationed on the USS Tortuga, which was within the inland waters of the Republic of Vietnam. Therefore, exposure to herbicides is presumed. The Board also notes that although squamous cell carcinoma is not considered a disability for presumption purposes under 38 C.F.R. § 3.309(e), it does not preclude the Veteran from receiving a VA examination with an opinion on whether his condition is directly related to herbicides. Given the above, the Board finds that a remand is required in order to obtain an examination with an opinion on the etiology of the claimed condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's squamous cell carcinoma of the tonsils. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements concerning any in-service symptoms, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's squamous cell cancer had its onset during, or is otherwise related to, his active duty service, to include his presumed exposure to herbicides. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.