Citation Nr: 21027212 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-29 196 DATE: May 5, 2021 REMANDED Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for throat cancer is remanded. REASONS FOR REMAND The Veteran, who served on active duty in the United States Air Force from September 1954 to April 1958, died in September 2017. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the RO determined that the appellant was an eligible substitute based on her status as the Veteran's surviving spouse. See April 2018 Notification Letter, November 2017 VA Form 21-534EZ. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. 1. Entitlement to service connection for lung cancer is remanded. 2. Entitlement to service connection for throat cancer is remanded. The Appellant asserts, as did the Veteran, that the Veteran's adenocarcinoma of the lung and throat are due to environmental exposures in service, to include herbicide agents, asbestos, trichloroethylene (TCE), volatile organic compounds (VOC), polychlorinated biphenyls (PCBs), and jet fuel. See March 2015 VA Form 21-4138, March 2015 web articles. Initially, the Board notes that the Veteran's service treatment records (STRs) and most of his service personnel records (SPRs) were destroyed in the 1973 National Personnel Records Center (NPRC) fire. See October 2008 VA Memorandum, December 2017 National Archives and Records Administration Response. Destruction of service records creates a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). On remand, a NA Form 13055, "Request for Information Needed to Reconstruct Medical Data" should be provided to the Appellant for signature and subsequent submission to the NPRC. The Veteran was denied service connection in a July 2015 RO rating decision that concluded that lung and throat cancer were not among the diseases enumerated by the Secretary of Veterans Affairs as being presumptively associated with exposure to herbicide agents. Notably, this is incorrect as lung cancer has been identified as presumptively associated with exposure to herbicide agents since June 9, 1994, or approximately 21 years prior to the RO's denial. 38 C.F.R. § 3.309(e). Additionally, the Board notes that cancers of the trachea, larynx, and bronchus are likewise presumptively associated with exposure to herbicide agents. Id. Additionally, the RO did not address or develop any of the other Veteran's claims, including exposure to jet fuel, TCEs, PCBs, VOCs, or asbestos. Regarding his asserted exposure to herbicide agents delineated in 38 C.F.R. § 3.307(a)(6), the Veteran reports that he was stationed in Korea from late 1955 to early 1957, then the Philippines, and Guam for a short period of time. See March 2015 VA Form 21-4138. Specifically, the Veteran asserts that while serving in Guam and Korea in 1955, B-52 aircraft loaded with herbicide agents would land and the Veteran would service these aircraft in conjunction with his military occupation specialty (MOS) of aircraft technician, thereby exposing himself to herbicide agents. See DD Form 214. In his August 2015 Notice of Disagreement (NOD), the Veteran described servicing, in addition to B-52 aircraft, the F-86F, F-86D, B-51, B-50, and a "fortress" bomber that he believes were utilized in the transportation and spraying of herbicide agents or were otherwise contaminated with herbicide agents during their service in Vietnam and prior to his performing maintenance on these aircraft. Additionally, in August 2015, the Veteran submitted a September 2003 memorandum from the Department of Defense (DOD) documenting the storage of 5,000 drums of herbicide agents on Guam beginning in 1952, though no date of removal was noted. See September 2003 DOD Memorandum. The Appellant submitted a May 2018 lay statement reporting that the Veteran served at Anderson Air Force Base on Guam from 1957 to 1958 and is asserting the Veteran was exposed to herbicide agents at that time. In support of this assertion, she offered an October 2005 Board decision wherein a different Veteran was conceded to have been exposed to herbicide agents while serving in Guam. See 2005 BVA LEXIS 106742, BVA 05-27748. In that case, before the Board in 2005, the Veteran testified that he was in areas that were treated with herbicide agents around the perimeter of the airfield on a regular basis. The Veteran in this case had also asserted exposure to herbicide agents at Chanute Air Force Base (AFB) in Champaign County, Illinois, and has provided an article entitled "Chanute Air Force Base the Air Force's Legacy of Lies in the Heartland" that contains statements from a Veteran that he participated in the spraying of herbicide agents at Chanute. See March 2015 VA Form 21-4138. Indeed, the portion of the Veteran's SPRs that are available demonstrate his service at Chanute in February 1956. While the RO did send a letter to the Veteran asking that he provide greater detail regarding his exposure, the Board notes the RO never engaged in attempting to verify the Veteran's reported exposures. See June 2015 Development Letter. Additionally, in the April 2018 Statement of the Case (SOC), the RO improperly required the Veteran to provide a 60-day window regarding his exposures when the Veteran's entire service record was destroyed while in the custody of the Federal government. See Cromer supra, see also Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the JSRRC's 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be futile). Thus, development must be completed on remand to determine whether the Veteran's presence on these bases can be verified through sources other than the Veteran's destroyed service records. Regarding the Veteran's asserted exposure to jet fuel, the Board finds the Veteran both competent to report his exposure and credible in this regard. As his MOS of aircraft technician required him to regularly work on all manner of aircraft, including jets, and be present on flight lines, the Board concedes that the Veteran was exposed to jet fuel in all of its forms, including liquid, vapor, and as exhaust. 38 U.S.C. § 1154(a). The Veteran also provided a medical paper published on the National Institute of Health webpage entitled "Immunotoxicological effects of JP-8 jet fuel exposure" and published in 1997 concluding that chronic exposure to jet fuel may have significant effects on the exposed persons immune system thereby resulting in the increased likelihood of developing cancer. On remand, a VA medical opinion should be obtained regarding the relationship, if any, between the Veteran's throat and lung cancers and his long-term exposure to jet fuel in his MOS. The Veteran also asserted that exposures to PCBs, heavy metals, and VOCs at McLellan AFB are the proximate cause of his throat and lung cancer. In this regard, the Board notes the available SPRs place the Veteran at McClellan AFB in November 1957 and the Veteran provided an article entitled "McClellan Air Force Base (Groundwater Contamination) published on the Environmental Protection Agency's website. Similarly, the Veteran asserts that his exposure to asbestos, TCE at Chanute are the proximate cause of his lung and throat carcinomas. See March 2015 VA Form 21-4138, "Chanute Air Force Base the Air Force's Legacy of Lies in the Heartland" web article. On remand, a VA opinion should be obtained that considers the Veteran's presence at McClellan and Chanute AFBs, his carcinoma diagnoses, and the multiple above-discussed articles. Any relevant outstanding medical records should also be obtained. The matters are REMANDED for the following action: 1. Complete any necessary development and attempts to reconstruct the Veteran's service record. Document all attempts and prepare a memorandum of service record unavailability. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Appellant, obtain any outstanding private treatment records. 4. Complete development needed to ascertain the Veteran's specific dates (month/year) of service at Osan Air Base in Korea, Anderson AFB in Guam, Chanute AFB in Illinois, and McClellan AFB. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne, supra. Therefore, please submit as many 60-day requests as needed to cover the entirety of the Veteran's service at these bases. 5. ONLY AFTER completing the development requested in items 1 through 4 above, attempt to verify the Veteran's asserted in-service exposure to herbicide agents, based on the information included in the claims file and any updated information revealed in conjunction with the development requested in items 1 through 4. The requests should seek information regarding the alleged exposure to herbicide agents at Osan Air Base in Korea from 1955 through 1957, Anderson AFB in Guam, and Chanute AFB, to include exposure to herbicide agents while working on aircraft loaded with barrels of herbicide agents and/or returning from service in Vietnam as part of his MOS. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne, supra. Therefore, please submit as many 60-day requests as needed to cover the entirety of the Veteran's service at these bases. 6. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Appellant and notify the Appellant of VA's inability to verify the in-service herbicide agent exposure. 7. Conduct appropriate development to verify any potential exposure to asbestos, VOCs, TCE, PCBs, and heavy metals during the Veteran's service, to include his asserted exposure at Chanute and McClellan AFB. See McClellan Air Force Base (Groundwater Contamination) published on the Environmental Protection Agency's website; March 2015 VA Form 21-4138, "Chanute Air Force Base the Air Force's Legacy of Lies in the Heartland" web article. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne, supra. Therefore, please submit as many 60-day requests as needed to cover the entirety of the Veteran's service at these bases. 8. Only after completing sections 1 through 5 above, refer the entire claims file to a VA examiner to render medical opinions regarding the nature and etiology of the Veteran's throat and lung disorders, to include adenocarcinoma. The examiner should review the claims file and then opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's throat and/or lung cancers had their onset during the Veteran's active duty service or are otherwise the result of any conceded or verified exposures to: (a.) herbicide agents, if verified; (b.) VOCs, if verified; (c.) jet fuel (already conceded exposure per MOS); (d.) TCE, if verified; (e.) heavy metals, if verified; or (f.) asbestos, if verified. In answering these questions, the examiner must address the following: (a.) the Veteran's history of smoking approximately one-half pack per day for 50 years (March 2007 VA treatment records); (b.) the report that the Veteran's brother died of lung cancer but was not a smoker (see October 2013 VA treatment records, April 2021 Board Hearing Transcript at 8); (c.) the medical journal article entitled "Immunotoxicological effects of JP-8 jet fuel exposure" and published in 1997 that supports a causative relationship between jet fuel exposure and the subsequent development of cancer; (d.) the Veteran's March 2015 report that he was not provided with protective gear or respirators when working on aircraft. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.