Citation Nr: 21025518 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-44 040 DATE: April 28, 2021 ORDER New and material evidence having been submitted to reopen a claim for service connection for a thyroid disability, claimed as thyroid cancer, the claim is reopened. REMANDED Entitlement to service connection for a thyroid disability, claimed as thyroid cancer, is remanded. Entitlement to service connection for infertility, claimed as dead sperm, is remanded. FINDINGS OF FACT 1. An April 2015 rating decision found that new and material evidence had not been received to reopen a claim for service connection for a thyroid disability, claimed as thyroid cancer. 2. The evidence received since the July 2007 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a thyroid disability, claimed as thyroid cancer, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied claim for service connection for a thyroid disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to June 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. New and material evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In a claim to reopen, VA must notify a claimant of the information and evidence necessary to reopen the claim and establish entitlement to the underlying claim for the benefit being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy that requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant with a notice letter that describes what information and evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a thyroid disability, claimed as thyroid cancer The Veteran and his representative assert that the Veteran is entitled to service connection for a thyroid disability because he claims it originated during his active duty service. The claim was originally denied in a November 2004 rating decision, and then a July 2007 rating decision continued the denial, as there was no new evidence submitted that linked the Veteran’s thyroid cancer to his active duty service. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b). Thus, the decision became final. The pertinent evidence received since the July 2007 denial includes a September 2015 Notice of Disagreement in which the Veteran noted he had a “choking episode” during service due to a claimed “knot in the throat,” the Veteran asserts it was an early manifestation of his thyroid cancer. Presuming the credibility of the evidence, the record now indicates that the Veteran’s thyroid cancer might have originally manifested during his active duty service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for a thyroid disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a thyroid disability, claimed as thyroid cancer, is remanded. As previously noted, the Veteran and his representative assert that the Veteran is entitled to service connection for a thyroid disability because he claims it originated during his active duty service. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Board notes that, in the September 2015 Notice of Disagreement, the Veteran noted he had a “choking episode” during service due to a claimed “knot in the throat,” the Veteran asserts it was an early manifestation of his thyroid cancer. The Veteran has also previously claimed that he had a submaxillary gland removal in 1974, after learning he had an issue regarding the first node in the latter part of 1970, the Veteran also believes this cancer may have spread and caused his thyroid cancer. The Board notes that, if either of these theories are plausible medically, they would be sufficient evidence to support reopening the Veteran’s service connection claim, as new and material evidence, and would also likely be sufficient evidence to grant service connection for the claimed disability. The Veteran was not provided a VA examination for this claimed disability. However, as the Veteran's treatment records indicate that the Veteran has a disability, and his lay statement assert that there is a potential link between the disability and his active duty service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of the claimed disability, to include whether such is related to in-service Agent Orange exposure. 2. Entitlement to service connection for infertility, claimed as dead sperm, is remanded. The Veteran and his representative affirm that the Veteran is entitled to service connection for infertility because he claims it originated due to his exposure to herbicides, notably Agent Orange during his active duty service in Vietnam. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Board notes that, in the September 2015 Notice of Disagreement, the Veteran claimed that his “dead sperm” was a result of exposure to herbicides during his active duty service, notably Agent Orange. The Veteran was not provided a VA examination for this claimed disability as the RO concluded there was no link to service for the claimed disability. While impotence is not a presumed disability under 38 C.F.R. §§ 3.307(a)(6), 3.309(e), the Board finds a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of the claimed disability. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, including any private treatment records that may be available that are dated in 1970, in order to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). Specifically request any records mentioned from the latter part of 1970. 2. After the above-noted development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's thyroid disability. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Confirm a current diagnosis as to the Veteran's thyroid disability. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's thyroid disability originated during, or is etiologically related to, active duty service. c. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's node that he developed during service was the first manifestation of this thyroid disability. 3. After the above-noted development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's infertility, claimed as “dead sperm.” Any and all tests, studies, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran's lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Confirm a current diagnosis as to the Veteran's infertility. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's infertility disability originated during, or is etiologically related to, active duty service, to include exposure to herbicides (including Agent Orange). A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The examiners are advised that the Veteran is considered competent to be able to report injuries and symptoms, and that her reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiners should provide a reason for doing so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.