Citation Nr: 21021097 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-29 316 DATE: April 9, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for residuals of tonsil/throat cancer is granted. REMANDED Whether new and material evidence has been received to reopen the claim for residual scar, damage to the face, secondary to tonsil cancer is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection a jaw condition and tooth and bone loss secondary to throat cancer is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for residuals, partial tongue resection with gastrointestinal condition secondary to left tonsil and throat cancer or as due to tobacco use is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a lip; and mouth condition also claimed as a speech impediment secondary to left tonsil and throat cancer or as due to tobacco use is remanded. Entitlement to service connection for residuals of tonsil/throat cancer to include as due to exposures to trichlorethylene (TCE) is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A September 2015 rating decision denied the Veteran’s claim of entitlement to service connection for residuals. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 2. The evidence received since the September 2015 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the claim for entitlement to service connection for residuals of throat cancer. CONCLUSION OF LAW The criteria for new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for residuals of throat cancer have been met. 38 U.S.C. §7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1962 to June 1965 and from August 1965 to August 1984. The Board denied the matters considered herein in a March 2020 Board decision. Subsequently, there was a October 2020 Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (Court). Reopening Legal Criteria To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for residuals of throat cancer. In April 2015, the Veteran sought to reopen his claim of entitlement to throat cancer (previously claimed as squamous cell carcinoma of the left tonsil). By a rating action in September 2015, the Agency of Original Jurisdiction (AOJ) reopened the claim but determined that the evidence continued to show that his condition was not incurred in or aggravated by military service. It was also determined that, as this condition was not one of the cited diseases, service connection on a presumptive basis is denied. The Veteran did not appeal or submit new and material additional evidence within one year of the September 2015denial, and the decision became final. 38 C.F.R. §3.156 (b). The Veteran filed a new request to reopen his claim of service connection for throat cancer (VA Form 21-4138) in December 2016. The Veteran alleged that his throat cancer developed as a result of exposure to Trichloroethylene, better known as TCE. Alternatively, the Veteran maintained that his throat cancer developed as a result of tobacco use during service. A November 2017 rating decision denied the Veteran’s claim for service connection for residuals of throat cancer. The Veteran appealed this decision to the Board. In a March 2020 Board decision, the Board denied reopening of the Veteran’s claim, finding that the Veteran’s lay contention that he was exposed to TCE in service was not sufficient to constitute new and material evidence, because lay contentions to support new theories alone are not competent evidence and cannot serve to support reopening of a claim. The Veteran appealed the Board’s March 2020 decision. The resulting October 2020 Joint Motion For Remand indicates that remand of the Veteran’s application to reopen the claim of entitlement to service connection for residuals of tonsil/throat cancer is warranted for the Board to address the appellant’s lay statements to the extent that appellant is competent to describe his duties performed and symptoms capable of observation regarding the circumstances of his exposure to TCE. A Veteran is competent to provide lay statements with regards to his duties in service, including any chemicals he may have used in connection with his military occupational specialty. For the purposes of reopening a claim, competent evidence is presumed credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s lay statements constitutes new and material evidence, as it raises the reasonable possibility of substantiating the Veteran’s claim. As such, the Veteran’s claim is reopened. REASONS FOR REMAND 2. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. In the March 2020 Board decision, the Board denied the Veteran’s claim for entitlement to a rating in excess of 50 percent for PTSD. The denial was based in part, on a July 2017 VA examination. However, in a 2019 statement the Veteran alleged that he was entitled to a new VA examination based on an increase in his PTSD symptoms, namely suicidal ideations. The Board did not address the Veteran’s argument. Upon review, the Board finds that the Veteran’s subjective reports of suicidal ideations supported by other evidence of record including a July 2017 VA mental health note which indicates that the Veteran reported having thoughts of hurting himself on a daily basis suggest a worsening of the Veteran’s symptoms. As such remand is warranted for a new VA examination to ascertain the current severity of the Veteran’s PTSD symptoms. 3. Entitlement to service connection for tonsil and throat cancer to include as due to exposures to trichlorethylene (TCE) is remanded. As discussed above, the Veteran’s claim for entitlement to service connection for tonsils and throat cancer to include as due to exposure to TCE is reopened. However, remand of the Veteran’s claim is warranted for further development including an etiology opinion regarding whether the Veteran’s tonsil/throat cancer is at least as likely related to his use of TCE in service. 4. Whether new and material evidence has been received to warrant reopening of the Veteran's claim for residual scar, damage to the face, secondary to tonsil cancer is remanded. 5. Whether new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection a jaw condition and tooth and bone loss secondary to throat cancer is remanded. 6. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for residuals, partial tongue resection with gastrointestinal condition secondary to left tonsil and throat cancer or as due to tobacco use is remanded. 7. Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a lip; and mouth condition also claimed as a speech impediment secondary to left tonsil and throat cancer or as due to tobacco use is remanded. The Veteran’s applications reopen his claims for residual scar, jaw condition and tooth and bone loss and residuals, partial tongue resection with gastrointestinal condition and lip and mouth condition are all secondary to his claimed condition of left tonsil and throat cancer. As such, these claims are inextricably intertwined with the Veteran’s claim for entitlement to service connection for tonsil and throat cancer to include as due to TCE. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Remand is warranted for further adjudication of these claims pending the outcome of the Veteran’s claim for entitlement to service connection for throat/tonsil cancer to include as due to TCE. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tonsil/throat cancer is at least as likely as not related to military service to include the use of TCE in service. In rendering an opinion the examiner should consider all evidence of record including the Veteran’s contention that he used TCE in service to clean flare racks in a four foot by eight foot building with no ventilation where TCE fumes would build up to the point of burning his eyes and throat. The Veteran is presumed credible for the limited purpose of this examination. 4. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, 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.