Citation Nr: 21020905 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-13 262 DATE: April 8, 2021 ORDER As new and material evidence has been presented, the petition to reopen the previously denied claim of entitlement to service connection for squamous cell carcinoma of the head/neck is granted. REMANDED Entitlement to service connection for squamous cell carcinoma of the head/neck, to include as due to herbicide exposure, is remanded. Entitlement to service connection for sarcoidosis, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for squamous cell carcinoma and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the November 2002 decision, and it became final. 2. The additional evidence submitted since the November 2002 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for squamous cell carcinoma. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying service connection for squamous cell carcinoma is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence submitted since the November 2002 denial has been received, the criteria for reopening the claim of service connection for a sleep disorder are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1972. Unfortunately, the Veteran died in September 2019. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and July 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran and the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. New and Material A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen entitlement to service connection for squamous cell carcinoma of the head/neck to include as due to herbicide exposure The Veteran’s claim for entitlement to service connection for a squamous cell carcinoma was previously denied in February 2000 and November 2002 rating decisions because the RO determined that the Veteran’s squamous cell carcinoma was not related to in-service herbicide exposure. Since the November 2002 rating decision, evidence including medical records, a medical opinion, lay statements, and hearing testimony have been submitted. The Board thus concludes that the evidence received since the November 2002 rating decision is new and material as it is not cumulative and, when considered with evidence earlier of record, relates to the unestablished elements necessary to substantiate the claim. Thus, the claim of entitlement to service connection for squamous cell carcinoma is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for squamous cell carcinoma of the head/neck, to include as due to herbicide exposure, is remanded. The appellant contends that the Veteran’s squamous cell carcinoma was caused by his exposure to herbicides during service. The Veteran’s exposure to herbicides during service has been conceded. In July 2018, the undersigned VLJ requested a medical opinion from the Veterans Health Administration (VHA) regarding the etiology of the Veteran’s squamous cell carcinoma, specifically whether exposure to herbicides during service caused the disability. In the June 2019 opinion, Dr. A.L. discussed the categories of evidence that links certain diseases to herbicide exposure, as established by the Institute of Medicine (IOM). One such category – “Limited/Suggestive Evidence of an Association” – applies to the connection between herbicide exposure and cancers of the respiratory tract, such as lung, bronchus or trachea, as well as cancers arising in a particular area of the neck known as the larynx. Dr. A.L. also noted another category – “Insufficient Association” – which applies to other parts of the neck, including the pharynx, nasal cavity, and oral cavity. Dr. A.L. stated that the information available to her only states that the Veteran had a squamous cancer of the neck, but the definitive site of origin was not stated with certain. She speculates that if the origin site were to be in the larynx or trachea, the Veteran may be eligible for service connection. The record contains a February 2007 letter from Dr. M.D., the Veteran’s private physician. Dr. M.D. stated that the Veteran’s nasopharyngeal carcinoma (a type of squamous cell carcinoma occurring in the head or neck) arose from the same tissue that lines the aerodigestive tract, specifically the lining of the mouth, nose, pharynx, larynx, trachea, and bronchial tubes and lungs. He further stated there was no question that herbicide exposure played the same role of potential damage in the Veteran’s disease as it would have in respiratory cancers of the lung, bronchus, larynx, or trachea. The VHA medical opinion from Dr. A.L. failed to consider the February 2007 letter from Dr. M.D. Additionally, neither physician actually opined as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s squamous cell carcinoma was caused by military service, including exposure to herbicides. The Board notes that VA’s regulatory framework does not consider the nasopharynx to be part of the respiratory tract. See 38 C.F.R. § 3.309 (e) (limiting presumptive service connection based on exposure to herbicide agents for respiratory cancers to cancers of the lung, bronchus, larynx, or trachea). However, service connection may still be established on a direct basis. Remand is required to obtain an additional medical opinion. 2. Entitlement to service connection for sarcoidosis, to include as due to herbicide exposure, is remanded. The appellant also seeks service connection for the Veteran’s sarcoidosis, including as due to herbicide exposure. In support of the claim, the Veteran and appellant submitted medical literature that discusses a link between herbicides and sarcoidosis. In the June 2019 VHA opinion, Dr. A.L. noted that the IOM has not listed sarcoidosis as a disorder with a known association to herbicides, and therefore she could not make a determination regarding the likelihood of whether the Veteran’s exposure to herbicides was an etiologic factor. Dr. A.L. went on to discuss the multiple causes of sarcoidosis, to include occupational and environmental exposures, and the connection and co-existence between cancer and sarcoidosis. She stated that the synchronous presentation of squamous cell carcinoma of the neck and sarcoidosis is uncommon, and would suggest a possible common etiologic agent or event, but given that the two conditions have not been associated with sufficient evidence linking them to herbicide exposure, it was not possible to correlate the occurrence of sarcoidosis with herbicides. Based on the assessment provided by the VHA, the Board finds remand is required to address the etiology of the Veteran’s sarcoidosis, to include whether it was related to herbicide exposure or secondary to the Veteran’s squamous cell carcinoma. The matters are REMANDED for the following action: 1. Obtain an opinion concerning the etiology of the Veteran’s squamous cell carcinoma of the head and neck, and sarcoidosis. If possible, the opinion should be authored by an otolaryngologist. The examiner must review the claims file, and a copy of this Remand. The examiner is to presume the Veteran was exposed to herbicide agents. The examiner is asked to respond to the following: 2. Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s squamous cell carcinoma of the head and neck was incurred, or is otherwise related to, his active service, to include exposure to herbicide agents. 3. Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s sarcoidosis was incurred, or is otherwise related to, his active service, to include exposure to herbicide agents. 4. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sarcoidosis was 1) proximately due to or 2) aggravated beyond its natural progression by squamous cell carcinoma of the neck and head. 5. The examiner must not provide a negative medical opinion solely due to the conditions not being on the VA presumptive conditions list with regard to herbicide exposure. 6. The examiner must consider pertinent evidence of record, to include the following: (a.) February 2007 private medical opinion from Dr. M.D. (b.) November 2017 submission of medical literature from the Veteran and appellant that discusses the associations between herbicide exposure and squamous cell carcinoma and sarcoidosis (c.) June 2019 VHA medical opinion from Dr. A.L. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.