Citation Nr: 21042165 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-33 678 DATE: July 12, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for squamous cell carcinoma oral, tongue is granted. REMANDED Service connection for squamous cell carcinoma oral, tongue is remanded. FINDINGS OF FACT 1. Service connection for squamous cell carcinoma oral, tongue was denied in an April 2012 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the April 2012 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for squamous cell carcinoma oral, tongue. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for squamous cell carcinoma oral, tongue. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1967 to December 1969, including service in Vietnam. The Veteran died in August 2017 and the Appellant is his surviving spouse. The Appellant was substituted in November 2018. In March 2021, the Veteran testified at a videoconference hearing before the undersigned. 1. New and material evidence to reopen the claim for service connection for squamous cell carcinoma oral, tongue. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran submitted a claim for service connection for squamous cell carcinoma oral, tongue in November 2010, which was denied in an April 2012 rating decision on the basis that there was no medical evidence linking his condition to military service. The Veteran was notified of the decision and he did not appeal it. The additional relevant evidence received since the April 2012 rating decision includes numerous private medical opinions. Two private medical opinions, one in December 2015 and the other in January 2016, both indicate that the doctors could not rule out the possibility that the Veteran's prior exposure to Agent Orange increased his risk to developing tongue cancer. Additionally, another private medical opinion in January 2016 stated that the doctor believed the Veteran met the same criteria as other Veterans who were granted service connection for squamous cell carcinoma oral, tongue based on exposure to Agent Orange. Lastly, an additional private medical opinion from January 2016, issued by a doctor who had seen the Veteran as a patient since 2004, indicated that exposure to Agent Orange, at a minimum, may have been an additional co-factor in his tongue cancer development. Thus, presumed credible, the medical opinions are probative evidence that the Veteran's current disability may be related to active service. Accordingly, new and material evidence has been received to reopen the claim for service connection for squamous cell carcinoma oral, tongue. REASONS FOR REMAND 1. Service connection for squamous cell carcinoma oral, tongue is remanded. The Veteran asserted that his squamous cell carcinoma oral, tongue is mostly due to his exposure to chemical exposure while serving in Vietnam. See July 2016 Form 9. In a March 2021 Board hearing, the Appellant contended that doctors throughout the Veteran's course of treatment for his tongue cancer had stated that the cancer was partly from Agent Orange. The Board notes that although tongue cancer is not among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, service connection may still be granted on a direct basis as the result of the Veteran's in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38 U.S.C. § 5103(A)(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). In December 2015 and January 2016, the Veteran obtained four private medical opinions regarding his squamous cell carcinoma oral, tongue. Two of these opinions indicated that the doctors could not rule out the possibility that his prior exposure to Agent Orange increased his risk to developing tongue cancer. The third opinion stated that the doctor believed the Veteran met the same criteria as other Veterans who were granted service connection for squamous cell carcinoma oral, tongue based on exposure to Agent Orange. Lastly, the fourth opinion indicated that exposure to Agent Orange, at a minimum, may have been an additional co-factor in his tongue cancer development. In August 2016, the Veteran had a VA examination for his squamous cell carcinoma oral, tongue. The examiner opined that the it is more likely than not that the oral cancer was a result of tobacco use and less likely than not from Agent Orange Exposure based on the information that currently available. Additionally, she stated that literature does not have sufficient evidence to determine if there is an association between Agent Orange exposure and cancers that affect the oral cavity, pharynx, and nasopharynx. The examiner noted that reviewing the evidence found that the Veteran had a history of tobacco use. The Board finds that neither the private opinions nor the VA examiner's opinion are sufficient bases on which to adjudicate the claim for service connection for tongue cancer. The four private medical opinions, from December 2015 and January 2016, are inadequate because they are too speculative to adequately support a decision on this claim. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," "may," or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). For instance, the four private medical opinions are speculative as they merely indicate that the Veteran's tongue "could be a co-factor" to his exposure to Agent Orange and the doctors stated that they "could not rule out the possibility" that his prior exposure to Agent Orange increased his risk to developing tongue cancer. These conclusions, however, do not provide the Board with the degree of certainty required for medical nexus evidence. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (stating a medical examiner's use of ambivalent or noncommittal phrases "should have signaled to the Board that the medical opinion was speculative and of little probative value"). Next, as noted above, although squamous cell carcinoma oral, tongue is not among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, service connection may still be granted on a direct basis as the result of the Veteran's in-service exposure to herbicides. The August 2016 VA examiner did not specifically opine on whether the claimed squamous cell carcinoma oral, tongue was due to the Veteran's presumed exposure to herbicides in Vietnam. Additionally, it appears that the 2016 VA examiner did not consider or discuss the four private medical opinions, from December 2015 and January 2016. As such, remand for a medical opinion addendum is necessary. The matter is REMANDED for the following action: 1. Contact the VA examiner who provided the August 2016 VA medical opinion on the etiology of the squamous cell carcinoma oral, tongue and ask the examiner to review the record and prepare an addendum to the medical opinion. If the examiner is unavailable, send the file to another suitably qualified examiner for review. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. All relevant diagnoses should be noted, to include squamous cell carcinoma oral, tongue. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (50 percent probability or greater) that the diagnosis is related to incident, injury, or event in active service, to include being caused or aggravated by in-service herbicide exposure, to include consideration and discussion of the December 2015 and three January 2016 private medical opinions regarding the Veteran's tongue cancer and exposure to Agent Orange. (Continued on the next page) A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The examiner should note that it is inadequate to conclude that a tongue cancer diagnosis is not related to service simply because it is not on VA's list of presumptive diseases associated with exposure to herbicides. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dourmashkin, Mark W. 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.