Citation Nr: 21068593 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-27 526 DATE: November 10, 2021 REMANDED Entitlement to service connection for squamous cell cancer of the tongue (cancer) is remanded. VETERAN'S CONTENTIONS The Veteran contends that he is entitled to service connection for his cancer due to in-service exposure to dioxin emissions while stationed on Johnston Island. See May 2021 Board Hearing Trans. p. 3. The Veteran testified that while an inspector was conducting a test at the facility, chemicals leaked into the building where he was being lodged. Id. The Veteran also reported that there was an explosion at the facility and munitions, such as VX nerve agent, mustard gas, and Agent Orange herbicide agents were everywhere. Id. REASONS FOR REMAND The Veteran served on active duty from March 1983 to November 2003. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his September 2019 VA Form 9. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service connection for the Veteran's cancer is remanded. Although the Board regrets a further delay of this matter, the Board finds that this issue must be remanded for a VA examination. Specifically, the Veteran has not been afforded a VA examination. VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that there is sufficient indication that the Veteran's cancer is associated with his service. Here, the Veteran contended that he was exposed to dioxin emissions during his active-duty service on Johnston Island. See May 2021 Board Hearing Trans. p. 3. In support of this contention, the Veteran's service treatment records (STRs) and other evidence show that he served at the Johnston Island as a military police officer from October 1994 to September 1996. See STRs dated July 1994, March 1995, August 1995, October 1995, and July 1996; April 2019 E-mail Correspondence. The Veteran explained that as a part of his activities, he was required to secure the chemical weapons when they were moved on Johnston Island. See May 2021 Board Hearing Trans. p. 4. Specifically, the Veteran reported two incidents where he was exposed to dioxin emissions, one where the chemicals leaked from a testing site, and the second one was when there was an explosion. Id. While being stationed there, the Veteran explained that the alarms would go off frequently, which showed that the staff regularly encountered problems with the chemicals stored there. Id. at 15. More importantly, the Veteran reported that when an alarm sounded off, the protocol required everyone to put on their face masks and hold their breath. Id. Therefore, the Board finds that this protocol demonstrates that the personnel were to react as though they were being exposed to hazardous materials. Moreover, the Board finds the Veteran's lay statements regarding where he served and circumstances surrounding exposure to dioxin emissions to be credible and supported by the record such that the Board concludes that the Veteran was indeed exposed to dioxin emissions during his active-duty service. Further, the Veteran provided evidence showing that there was dioxin present on Johnston Island. See September 2021 Correspondence. Specifically, in Chemical Weapons Working Group v. U.S. Department of the Army, the U.S. District Court (Court) noted that on Johnston Island, several chemical agents were incinerated. 935 F. Supp. 1206. In that case, the Court acknowledged that there were events at Johnston Island that the increased the probability of Agent Orange herbicide agent exposure and injury to workers. Id. Additionally, the Court acknowledged that were three atmospheric releases of live agents on Johnston Island. Id. Lastly, the Court acknowledged that there was a March 1995 incident where small amounts of agents escaped into the atmosphere, which coincides with the Veteran's service on Johnston Island. Although the Court found in favor of the Army, the Court acknowledged that there was dioxin exposure on Johnston Island, in finding that there was insufficient evidence to demonstrate that these plaintiffs' dioxin emissions exposure was dangerous. Id. Accordingly, the Veteran's testimony coupled with the Court's finding in Chemical Weapons case, puts the evidence of record in equipoise as to whether the Veteran was exposed to dioxin emissions. Resolving doubt in favor of the Veteran, the Board finds that the Veteran was exposed to dioxin emissions and other chemicals in service. Therefore, the Board finds that this issue must be remanded to obtain a VA examination. See, McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also, 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should determine whether the Veteran's exposure to dioxin emissions caused his cancer. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his cancer. The entire claims file must be made available to and be reviewed by the examiner. The examiner must address the following: The Board would like to note for the examiner that it has made a positive finding that the Veteran was exposed to the following substances on Johnston Island: (1) herbicide and nerve agents; (2) mustard gas; (3) energetics materials and munitions; and (4) polychlorinated biphenyls. (a.) Please state whether it is a least as likely as not (50 percent or greater probability) that the Veteran's cancer is related to his presumed exposure to the above-listed substances. The examiner must take into account that the Veteran does not have a history of smoking or a family history of cancer. (b.) If the examiner still finds that the Veteran's cancer is not related to his exposure to the above-mentioned substances, then please identify the most likely risk factors for the Veteran's development of the cancer. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.