13-36 183
13-36 183
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served May 1968–May 1970 (Vietnam-era); presumed herbicide exposure; died Oct 2012; surviving spouse substituted as appellant.
- RO denied service connection for right tonsillar squamous cell carcinoma in Feb 2004; appeal was initiated but not perfected, making that decision final absent new and material evidence.
- Since 2004, new medical records and opinions were added (including an Aug 2015 private opinion attributing oropharyngeal cancer to Agent Orange and a June 2016 VA opinion distinguishing tonsillar and esophageal cancers).
- Medical records contain inconsistent cancer labels (tonsil/oropharyngeal, larynx, tongue, esophagus) and the appellant alleges additional diagnoses (lymphoma); death certificate lists esophageal squamous cell carcinoma in causal chain.
- Appellant seeks reopening of the 2004 denial, service connection for the Veteran’s cancers (and as cause of death), and entitlement to SMC based on aid-and-attendance or housebound status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reopen Feb 2004 denial for right tonsillar squamous cell carcinoma | New evidence (Aug 2015 opinion, subsequent records) links the cancer to herbicide exposure and/or shows cancers covered by presumption | Feb 2004 decision was final; new evidence must be new and material to reopen | Reopened — Board found new and material evidence raising reasonable possibility of substantiating claim under 38 C.F.R. §3.156(a) |
| Entitlement to service connection for Veteran’s various cancers (tonsil/oropharynx, larynx, esophagus, lymphoma) | Appellant: cancers are service-connected (presumptive or via etiologic link to herbicides/other in-service exposures); tonsil may be lymphoid (lymphoma) or respiratory (laryngeal) cancer | VA: record diagnoses are inconsistent; prior VA opinion did not fully resolve whether any cancer is a presumptive condition or service-connected | Remanded for comprehensive VA oncology opinion to identify/clarify each cancer, whether primary vs metastatic, and whether any are at least as likely as not related to service/exposures |
| Entitlement to special monthly compensation (SMC) for A&A or housebound status | Appellant ties SMC claim to service connection outcomes and contends PTSD (100%) may compound/debilitate and contribute to death | VA: SMC issue is intertwined with service connection outcomes and should await resolution of causation and diagnostic questions | Remanded — SMC deferred and will be adjudicated after service-connection issues are developed/resolved |
| Service connection for cause of death | Appellant: cancer(s) (including presumptive laryngeal or lymphoma) and possibly service‑connected PTSD materially contributed to death; death certificate lists esophageal carcinoma in chain | VA: causal questions unresolved due to unclear diagnoses and incomplete etiologic opinions | Remanded — Board ordered medical opinions on whether each diagnosed cancer and PTSD were immediate, underlying, or contributory causes of death |
Key Cases Cited
- Fortuck v. Principi, 17 Vet. App. 173 (presumption of credibility for new evidence when deciding reopening)
- Shedden v. Principi, 381 F.3d 1163 (elements required to establish service connection)
- Gonzales v. West, 218 F.3d 1378 (agency need not discuss every piece of evidence)
- Golz v. Shinseki, 590 F.3d 1317 (VA duty to obtain SSA records when relevant)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant may submit additional evidence after remand)
- Harris v. Derwinski, 1 Vet. App. 180 (inextricably intertwined claims must be adjudicated together)