Citation Nr: 21006544 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 20-19 827 DATE: February 4, 2021 ORDER New and material evidence has been received and the claim for service connection for squamous cell carcinoma of the tongue is reopened; to this extent the appeal is granted. REMANDED Service connection for squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue is remanded. Service connection for high-grade urothelial cancer/residuals of high-grade urothelial cancer is remanded. FINDING OF FACT The August 2014 rating decision that denied service connection for squamous cell carcinoma of the tongue (claimed as mouth cancer) was not appealed and is final. Evidence received since the August 2014 rating decision is not duplicative or cumulative of evidence previously of record, relates to a previously unestablished fact, and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for squamous cell carcinoma of the tongue/ residuals of squamous cell carcinoma of the tongue. CONCLUSION OF LAW The criteria to reopen the finally denied claim of entitlement to service connection for squamous cell carcinoma of the tongue have been met. 38 U.S.C. §§ 5108 (2012), 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1966 to December 1969. A hearing before the undersigned was held in November 2020, and a transcript of the hearing has been associated with the claims file. The record was held open for 60 days, at the request of the Veteran’s representative, to allow the Veteran to submit additional evidence. No additional evidence has been received. New and material evidence has been received and the claim for service connection for squamous cell carcinoma of the tongue is reopened; to this extent the appeal is granted. Generally, a claim that has been denied in an unappealed regional office (RO) decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). 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) (2018). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2018); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). An August 2014 rating decision, the RO denied the Veteran’s claim for service connection for squamous cell carcinoma of the tongue (claimed as mouth cancer). It found that the evidence did not show the condition happened in the military, nor was it aggravated by service, nor was there evidence that the condition manifested to a compensable degree with a year of discharge from service. The RO further noted the available scientific and medical evidence did not support the conclusion that the Veteran’s condition was associated with herbicide exposure. The Veteran did not appeal that decision, and it became final. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). In April 2018, the Veteran filed an intent to file a claim and in May 2018 he filed a claim to reopen the previously denied claim for service connection of squamous cell carcinoma of the tongue and for residuals of squamous cell carcinoma of the tongue. The evidence associated with the claims file since the August 2014 rating decision includes three journal articles discussing the relationship between 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) and cancer. The Board finds that the evidence submitted since the August 2014 rating decision is new and material. This evidence is not cumulative or redundant of the evidence previously of record. Additionally, it relates to an unestablished fact necessary to substantiate the claim, specifically the evidence suggests a connection between squamous cell carcinoma in the tongue and herbicide agent exposure. Moreover, the evidence triggers VA’s duty to assist in providing competent evidence to address the articles and how they are applicable to this Veteran’s disability. Accordingly, reopening the claim of entitlement to service connection for squamous cell carcinoma of the tongue (claimed as mouth cancer) is warranted. REASONS FOR REMAND 1. Service connection for squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue The Board cannot make a fully informed decision on the issue of service connection for squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue because no VA examiner has opined whether the Veteran’s disability is related to his exposure to herbicide agents while serving in Vietnam. Remand is necessary to obtain such an opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for high-grade urothelial cancer/residuals of high-grade urothelial cancer The Board cannot make a fully informed decision on the issue of service connection for high-grade urothelial cancer/residuals of high-grade urothelial cancer because no VA examiner has opined whether the Veteran’s disability is related to his exposure to herbicide agents while serving in Vietnam. Remand is necessary to obtain such an opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s oncologist provided an April 2018 statement indicating “the possibility of [his] malignancy (high grade urothelial cancer) being related to Agent Orange exposure is at least as likely as not.” The Board recognizes the doctor’s qualifications; however, this statement provides no rationale for how the doctor arrived at this conclusion. The Veteran submitted several medical articles cited below but the oncologist did not refer to them or indicate that he was submitting them as part of his opinion. Additionally, a VA opinion is necessary to clarify whether the Veteran has had “bladder cancer” at any time during the period on appeal. The Board notes that the National Defense Authorization Act for Fiscal Year 2021, Public Law No 116-283, amended 38 U.S.C. § 1116(a)(2), in part, by adding “bladder cancer” to the list of diseases associated with exposure to herbicide agents for which there is a presumption of service connection for veterans who served in the Republic of Vietnam. Private treatment notes from 2018 reflect the Veteran was assessed with left upper tract urothelial carcinoma, high grade. A September 2018 cystoscopy revealed a “normal bladder.” A November 2019 cystoscopy revealed “no bladder tumors” and “papillary bladder tumors in the upper pole of the left kidney and the “inter pole region of the left kidney.” In January 2020, the Veteran was assessed with “malignant neoplasm of kidney pelvis.” The VA examiner should clarify whether the Veteran’s disability is considered “bladder cancer” or possibly qualifies as a “soft tissue sarcoma.” See 38 C.F.R. § 3.309. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue and his high- grade urothelial cancer/residuals of high-grade urothelial cancer. The examiner must review the claims file, including the discussion of the Veteran’s reported residuals during the November 2020 hearing, including for squamous cell carcinoma, dry throat, dental problems, challenges with taste and smell, occasional difficulty swallowing, and neck pain; and for high-grade urothelial cancer, incontinence at times. If a diagnosis cannot be provided but the Veteran’s conditions manifest in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide responses to the following: Is the Veteran’s squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue at least as likely as not caused by service, including exposure to herbicide agents while in Vietnam? Does the record reflect the Veteran has had “bladder cancer” and/or residuals of “bladder cancer” or a disease qualifying as a “soft tissue sarcoma” at any time during the period on appeal? Is the Veteran’s high-grade urothelial cancer/residuals of high-grade urothelial cancer at least as likely as not caused by service, including exposure to herbicide agents while in Vietnam? The examiner is advised that a negative opinion cannot be based solely on the fact that the Veteran’s squamous cell carcinoma of the tongue/residuals of squamous cell carcinoma of the tongue and his high-grade urothelial cancer/residuals of high-grade urothelial cancer are not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide rationales to support the opinions. When providing the opinions regarding whether the disabilities are at least as likely as not related to service, address the articles submitted by the Veteran’s representative received May 31, 2018, including: Huff JE. 1992. 2,3,7,8-TCDD: a potent and complete carcinogen in experimental animals. Chemosphere 25: 173-76; Xu J, Ye Y, Huang F, Chen H, Wu H, Huang J, Hu J, Xia D, Wu Y. Association between dioxin and cancer incidence and mortality: a meta-analysis. Sci Rep. 2016 Nov 29; and Mann PC 1997 Selected lesions of dioxin in laboratory rodents. Toxicologic Pathology 25 72–79. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli, 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.