Citation Nr: 23005366
Decision Date: 01/27/23	Archive Date: 01/27/23

DOCKET NO. 20-05 893
DATE: January 27, 2023

REMANDED

Entitlement to service connection for lung cancer is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1971 to April 1991.

This matter is on appeal from a September 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2021, a hearing was held before the undersigned. A transcript of the hearing is in the record.

Service connection for lung cancer is remanded.

The Veteran contends that he is entitled to service connection for lung cancer. However, upon review of the record, the Board finds that further development is necessary to clarify service locations to determine whether presumptive service connection is warranted. 

During the pendency of this appeal, Congress enacted an expanded list of locations subject to presumptive service connection based on in-service exposure to an herbicide agent in the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act. Under the PACT Act, a Veteran who served in Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962 and ending on July 31, 1980 or served on Johnston Atoll or on a ship that called at Johnston Atoll during the period beginning on January 1, 1972 and ending on September 30, 1977, shall be presumed to have been exposed to an herbicide agent during such service. Pub. L. 117-168, § 403(d)(5) (to be codified at 38 U.S.C. § 1116). For Veterans presumed to have been exposed to an herbicide agent, a further presumption of service connection exists for certain enumerated diseases associated with exposure to herbicide agents, to include respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 

In this case, July 1989 personnel records note service within Guam, which is after the period set forth by the PACT Act for establishing presumptive exposure to herbicide agents. However, the Veteran's personnel records are partially illegible and do not clearly note whether the Veteran also served in Guam or American Samoa or its territorial waters prior to July 31, 1980, or on Johnston Atoll or on a ship that called to Johnston Atoll during the period for which presumptive service connection is available. His personnel records reflect that he was part of the Fleet Marine Force Pacific and stationed in Hawaii during some of this period, which raises a question as to whether his service may have involved other duty or visitation to Guam or duty or visitation to American Samoa or Johnston Atoll. As such, the Board finds that further development is necessary to research the Veteran's service locations for the period of the Veteran's service ending on July 31, 1980 to determine whether he served in Guam or American Samoa within its territorial waters during this period and to determine whether he served in Johnston Atoll or on a ship that called to Johnston Atoll during the presumptive period from January 1, 1972 to September 30, 1977. 

The matter is REMANDED for the following action:

Undertake all necessary development and research to determine whether the Veteran's service involved duty or visitation to Guam or American Samoa or its territorial waters or to Johnston Atoll or on a ship that called to Johnston Atoll during the relevant presumptive periods addressed in the PACT Act, including as part of the Fleet Marine Force Pacific. Such development should include, but should not be limited to, contacting the Veteran and asking him whether his service took him to these locations during the relevant presumptive periods.

If there is still insufficient information to confirm whether the Veteran's service involved duty or visitation to these locations, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to confirm his locations during the presumptive time periods.

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. H. White, 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.