Citation Nr: 21013360 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-06 123 DATE: March 9, 2021 ORDER New and material evidence having been received, the Veteran's claim for service connection for thyroid cancer is reopened. REMANDED Entitlement to service connection for thyroid cancer is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT 1. In a July 2005 rating decision, the Veteran’s claim for service connection for thyroid cancer was denied. The decision became final. 2. Evidence added to the record since the final July 2005 decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for thyroid cancer. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for thyroid cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1968. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a September 2017 rating decision. A hearing was held by the undersigned Veterans Law Judge in February 2021. Of note, a VA Form 10182 Notice of Disagreement for thyroid cancer was filed in February 2020 in response to an administrative letter that appears to have been sent in error. However, as the claim is already a pending legacy appeal, the Board only has jurisdiction over the legacy appeal and must disregard the VA Form 10182. New and material evidence – thyroid cancer The Veteran was originally denied service connection for thyroid cancer in a July 2005 rating decision based on a lack of in-service incurrence or nexus to service. The Veteran did not submit any relevant evidence or argument within one year of the July 2005 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). Thereafter, the Veteran sought to reopen the claim which was again denied in October 2008 for lack of new and material evidence. He filed another claim to reopen in January 2017. Regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Pursuant to 38 C.F.R. § 3.156 (a), a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156 (a).  The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  Turning to the evidence, in August 2007 a letter was received from the Veteran’s treating physician at MD Anderson Cancer Center. The physician explained the Veteran’s course of treatment for aggressive metastatic papillary thyroid carcinoma in 2002, and stated he believed the Veteran “developed this form of aggressive thyroid cancer due to his significant exposure to Agent Orange when he served in Vietnam.” This evidence is new as it was not of record at the time of the July 2005 decision, and it is material as it relates to an unestablished fact – nexus – necessary to substantiate the claim. Thus, the claim is reopened. REASONS FOR REMAND 1. Service connection – thyroid cancer The Veteran contends his thyroid cancer was caused by Agent Orange exposure while stationed in Vietnam. The Veteran’s service records confirm he was stationed in the Republic of Vietnam; thus, exposure to Agent Orange is conceded. While thyroid cancer is not a disability that is presumed related to Agent Orange exposure under 38 C.F.R. § 3.309 (e), the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). In his hearing, the Veteran explained that the cancer affected his vocal cords requiring surgical repairment of the larynx. In July 2007, the Veteran’s treating physician at MD Anderson Cancer Center drafted a letter describing his thyroid cancer treatment and stating he believed the Veteran “developed this form of aggressive thyroid cancer due to his significant exposure to Agent Orange when he served in Vietnam.” While the Board makes no finding as to the overall probative value of the letter at this juncture, it does establish an indication that the thyroid cancer may be associated with his in-service exposure, warranting a VA opinion. 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 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) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). 2. Service connection – lung cancer The Veteran contends his lung cancer was caused by Agent Orange exposure while stationed in Vietnam. As stated above, Agent Orange exposure is conceded. The evidence shows the Veteran was diagnosed with lung cancer secondary to his thyroid cancer after it metastasized to his lungs. Although lung cancer is a disease found to be presumptively caused by Agent Orange under § 3.309 (e), there is also evidence that the Veteran’s lung cancer is secondary to his thyroid cancer. Thus, whether presumptively due to Agent Orange exposure or secondary to his thyroid cancer, the Board finds that remand is necessary for a VA opinion. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83-86. 3. Service connection - COPD The Veteran contends his COPD was caused by confirmed Agent Orange exposure while stationed in Vietnam. In a December 2016 letter, the Veteran’s pulmonologist noted the Veteran’s diagnosis and exposure to Agent Orange. He stated that exposure to airborne toxins while on active duty may lead to breathing difficulties and respiratory illnesses that begin during active duty or after returning home. In his pulmonology records, a note states “It is highly likely that his COPD – severe may have been as a result of Agent [Orange] exposure when he was in the service.” While the Board makes no finding as to the overall probative value of the pulmonologist’s opinions at this juncture, it does find that additional development is needed to determine whether there is a causal relation by an equipoise or greater standard. Thus, remand is warranted for a VA opinion. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83-86. The matters are REMANDED for the following action: Obtain VA opinions for the above-claimed disabilities. In light of the COVID-19 pandemic, an opinion based on the evidence of record and telephone interview, if needed, may be sufficient. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s thyroid cancer, lung cancer, and COPD are related to service, to include Agent Orange exposure while stationed in Vietnam. Regarding the Veteran’s lung cancer, the examiner must opine whether it is at least as likely as not that the lung cancer is caused by Agent Orange exposure, thyroid cancer, or some other cause. In reaching his/her conclusion, the examiner must consider and address all relevant evidence of record, to include statements relating the disabilities to Agent Orange made by the Veteran’s private physicians. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.