Citation Nr: 21013600 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-36 176 DATE: March 9, 2021 ORDER The previously denied claim of entitlement to service connection for squamous cell carcinoma (SCC) of the tonsil, to include as due to exposure to herbicide agents, is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for SCC of the tonsil, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In a January 2009 rating decision, the Department of Veterans’ Affairs (VA) Regional Office (RO) in Cleveland, Ohio denied the Veteran’s claim for service connection for SCC of the tonsil; he was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s January 2009 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence since the time of the RO’s January 2009 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for SCC of the tonsil and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s January 2009 decision denying service connection for SCC of the tonsil is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for SCC of the tonsil. 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 U.S. Army from September 1969 to May 1971, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the VARO in Cleveland, Ohio. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. During the pendency of the appeal, the RO found that new and material evidence had been received to reopen the Veteran’s claim. See Statement of the Case (SOC) dated in September 2015. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for SCC of the tonsil The Veteran first filed a claim for service connection for SCC of the tonsil in December 2008. A January 2009 rating decision denied the claim. The Veteran was notified of the decision, and of his appellate rights, by letter dated that same month. No new and material evidence was received during the one-year period following mailing of notice of the decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. 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 and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The January 2009 rating decision denied service connection for SCC of the tonsil, in part, because the RO found that the evidence did not show that the disability was incurred in or caused by service, did not show that the condition manifested to a compensable degree within one year of discharge, and because the Veteran’s service treatment records (STRs) were negative for any complaints, treatment for, or diagnosis of SCC of the tonsil. The RO also found that while records showed a diagnosis of SCC of the tonsil and that the Veteran reported that he was exposed to herbicide agents in service, SCC of the tonsil was not a condition recognized by VA as presumptively due to exposure to herbicide agents. The evidence before VA at the time of the prior final rating decision relating to the claim consisted, in part, of the Veteran’s STRs, post-service treatment records, and the Veteran’s lay statements. Here, the Board finds that new and material evidence has been received with respect to the claimed condition. The Veteran submitted a September 2010 statement from his private treating physician, N.W., M.D., in which Dr. W. indicated that there was an association between the Veteran’s cancer and his exposure to toxins in service. This evidence addresses whether there is a nexus, or link, between the Veteran’s cancer and his service, which relates to a previously unestablished fact, and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for SCC of the tonsil, to include as due to exposure to herbicide agents, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for SCC of the tonsil, to include as due to exposure to herbicide agents, is remanded. The Veteran contends that he has SCC of the tonsil that was incurred in or caused by service, to include as due to exposure to herbicide agents. At the January 2021 hearing, he advanced testimony to the effect that SCC of the tonsil is a respiratory cancer, and that presumptive service connection is therefore warranted. As an initial matter, the Board notes that the claims file shows that the Veteran was diagnosed with SCC of the tonsil in October 2008. While the record indicates that the cancer was not active for many years subsequent to that time, the Veteran testified at the January 2021 hearing that it had recurred. The presence of a current disability has therefore been established. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). Inasmuch as the Veteran had service in Vietnam during the requisite period, his exposure to herbicide agents is conceded. The question for the Board is whether the Veteran’s cancer is a type of cancer that can be presumptively linked to service, or whether it can be directly linked to service. Service connection on a presumptive basis is warranted under 38 C.F.R. § 3.309(e) for many diseases, including respiratory cancers. The regulation expressly identifies respiratory cancers as cancers of the lung, bronchus, larynx, or trachea. Notably, the regulation does not include SCC of the tonsil or cancers of the pharynx as presumptive conditions. As noted above, the Veteran submitted a statement from his treating provider, Dr. W., dated in September 2010. Dr. W. stated that the Veteran had carcinoma of the left tonsil metastatic to his neck, and also stated that this was a respiratory cancer. He further opined that there was an association between some of the toxins to which the Veteran was exposed during service and pharyngeal cancers. While Dr. W.’s statement appears to support the Veteran’s claim, the Board finds it inadequate to support an award of service connection. Dr. W.’s statement that the Veteran’s SCC of the tonsil is a respiratory cancer is not supported by any rationale. Nor is his statement that there is an association between some of the toxins the Veteran was exposed to during service and pharyngeal cancers. The file does not contain any other nexus opinions from any source. The Board notes that the Veteran has not been afforded a VA examination and/or opinion in connection with his claim. Inasmuch as the Veteran has a current diagnosis, was exposed to herbicide agents during service, and Dr. W.’s September 2010 statement suggests that there may be a link between the two, the Board finds that a VA examination and/or opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Board also notes that the most recent VA treatment records in the file are from January 2016. Updated records of any VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Additionally, the file does not appear to contain treatment records from C.H.B., even though the Veteran identified this individual as a private provider and provided a release for his/her records in November 2010. On remand, efforts to obtain any relevant private treatment records should also be made. The matter is REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Dr. B. at Family Medical Group in Montpelier, Ohio, and to identify, and provide appropriate releases for, any other care providers who may possess additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriate VA examiner for purposes of obtaining an opinion with respect to the etiology of the Veteran’s SCC. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the tissue from which the Veteran’s SCC originated can properly be considered part of the lung, bronchus, larynx, or trachea. In so doing, the examiner should consider and address Dr. W.’s September 2010 statement that SCC of the tonsil is a respiratory cancer. If it is the examiner’s opinion that the Veteran’s SCC did not originate from tissue that can properly be considered part of the lung, bronchus, larynx, or trachea, he or she should offer a further opinion as to whether it is at least as likely as not that the Veteran’s SCC had its onset in, or is otherwise attributable to, service, to include as due to exposure to toxins in service, to include his presumed in-service exposure to herbicide agents. In so doing, the examiner should consider Dr. W.’s September 2010 statement indicating that there is an association between some of the toxins to which the Veteran was exposed during service and pharyngeal cancers. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.