Citation Nr: 21023739 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-15 871 DATE: April 21, 2021 ORDER New and material evidence having been received, the Veteran’s claim for entitlement to service connection for tongue cancer, to include as due to herbicide agent exposure, is reopened. Entitlement to service connection for tongue cancer, to include as due to herbicide agent exposure is denied. FINDINGS OF FACT 1. An unappealed April 2013 rating decision denied service connection for tongue cancer; that decision became final. 2. The evidence associated with the claims file subsequent to the April 2013 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for tongue cancer. 3. The preponderance of the evidence is against finding that the Veteran’s tongue cancer began during active service or is otherwise related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The April 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received since the April 2013 rating decision, which denied service connection for tongue cancer, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for tongue cancer, to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in October 2018. A transcript of the hearing is in the Veteran’s file. The Veteran died in January 2019. His surviving spouse has been substituted as the appellant for purposes of processing the appeal to completion under the provisions of 38 U.S.C. § 5121A. New and material evidence having been received, the claim to reopen service connection for tongue cancer If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the basis of the RO’s April 2013 denial was the lack of a nexus of the Veteran’s tongue cancer to service. The record at the time of the April 2013 rating decision included the Veteran’s service treatment records and private treatment records. Evidence received since the April 2013 decision, includes additional medical records reflecting a diagnosis of tongue cancer, and statements by the Veteran he understood his care providers to have thought in-service environmental exposures caused him to develop the claimed disability. Given the low threshold to reopen a claim, it may be considered that this new evidence is not cumulative or redundant of the evidence previously of record and indicates a potential basis for establishing that the Veteran’s claim for service connection for tongue cancer. Accordingly, reopening of the claim for service connection for tongue cancer warranted. Entitlement to service connection for cancer of the tongue The appellant contends that service connection was warranted for the Veteran’s tongue cancer, as a result of in-service exposure to herbicide agents, on a presumptive basis; or that it is the result of some other environmental exposure. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served 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 during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection requires exposure to an herbicidal agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41-442-449 (1996). At the outset, the Board notes that the appellant has not alleged, and the evidence does not otherwise show, that the Veteran's tongue cancer had its onset during the Veteran's active service. Rather, the appellant claims that the Veteran's tongue cancer was the result of his exposure to herbicides while serving in the Republic of Vietnam. The Board notes that the record shows that the Veteran did in fact have service in the Republic of Vietnam. As such, his exposure to herbicides during active service is presumed. While the provisions of 38 C.F.R. § 3.309(e) include respiratory cancers (specifically cancer of the lung, bronchus, larynx, or trachea) as diseases that are presumed related to herbicide exposure, cancer of the tongue and other cancers related to the mouth are not listed. As such, the Veteran's squamous cell carcinoma of the tongue is not presumed to be related to his exposure to herbicides while serving in the Republic of Vietnam. However, the appellant is not precluded from establishing entitlement to service connection for disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the question for the Board is whether the Veteran's tongue cancer was at least as likely as not related to in-service herbicide exposure. Private medical treatment records showed that the Veteran was diagnosed with squamous cell carcinoma of the tongue in October 2000, which is over 30 years after service. Treatment records also showed metastatic squamous cells were found in several lymph nodes. The Veteran’s treatment included surgery, chemotherapy, and radiation, which required permanent tracheostomy. Prior to the diagnosis, the Veteran smoked 2 packs of cigarettes for 25 years. A 2014 VA medical examiner observed squamous cell carcinoma of the tongue was not a conceded condition related to Agent Orange exposure and that the documented metastatic spread of a primary cancer does not represent a second cancer. The Veteran did not have, nor ever had, any primary lymph node cancer. At the October 2018 Board hearing, the Veteran testified that he attempted to obtain a medical nexus from two of his doctors that is tongue cancer was related to Agent Orange, however, they both refused to provide statement. The Veteran stated he was told they cannot tell for sure where it came from. One doctor also told him it could be due to his smoking or environmental, but nothing was definite. The Board notes that a VA medical opinion regarding the nexus between the Veteran’s tongue cancer and Agent Orange exposure has not been obtained. However, the Board finds that obtaining the VA medical opinion is not necessary to make a decision on this claim since no there is no competent evidence of any nexus on record, other than the Veteran’s vague assertion that his doctors stated they do not know for certain what caused his tongue cancer, to trigger the need for an additional medical opinion. See 38 U.S.C. § 5103A. In this case, absent any probative evidence showing a medical nexus between the Veteran's tongue cancer and his active service, the evidence in this case weighs against the claim of entitlement to service connection for tongue cancer. The Board recognizes the appellant's sincere belief that the Veteran's tongue cancer was due to his exposure to herbicides while in active service; however, the appellant is not competent to determine that the Veteran's tongue cancer was related to such exposure. That issue is medically complex, and requires knowledge of intricate medical matters, including knowledge of medical literature. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the appellant is not competent to provide an etiology opinion in this case. Similarly, there is no probative evidence identifying any other specific environmental exposure in service that might have produced the cancer in question, and as with a herbicide agent, the appellant is not shown to possess any expertise on the subject. Therefore, no probative evidence is present suggesting any nexus between the claimed disability, and any particular environmental exposure. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for tongue cancer, to include as due to herbicide agent exposure, is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.