Citation Nr: 23055751 Decision Date: 10/12/23 Archive Date: 10/12/23 DOCKET NO. 20-10 465 DATE: October 12, 2023 ORDER Entitlement to service connection for the cause of the Veteran's death is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). FINDINGS OF FACT 1. The Veteran's service in Iraq after August 2, 1990, warrants "covered veteran" status under the PACT Act and she is presumed to have been exposed to burn pits and other Persian Gulf environmental hazards during her active duty service. 2. The Veteran's death certificate lists breast cancer as a cause of death. 3. Pursuant to the PACT Act, breast cancer is a disease presumptively due to in-service exposure to burn pits and other Persian Gulf environmental hazards. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312; Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022, Pub. L. No. 117-168, § 403(d)(2) (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1976 to February 1997. Unfortunately, she died in April 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). By way of history, in an August 2008 rating decision, the RO denied service connection for the cause of the Veteran's death. The appellant submitted new and material evidence within one year of the August 2008 rating decision. See 38 C.F.R. § 3.156(b). Accordingly, in May 2009 the RO readjudicated the claim. The appellant was notified of this decision and of his appellate rights by letter dated May 19, 2009. He submitted a VA Form 9 in November 2009 expressing disagreement with the May 2009 rating decision, which is accepted as a timely notice of disagreement (NOD) with that decision. See 38 C.F.R. § 20.201 (2018). As statement of the case was issued in January 2020, and the appellant perfected an appeal by submitted a substantive appeal in March 2020. As an aside, the Board notes that the RO did not acknowledge the VA Form 9 submitted in November 2009 as a timely NOD with the May 2009 rating decision. In a November 2012 rating decision, the RO again denied the appellant's claim on the basis that new and material evidence had not been submitted. However, while the appellant's correct mailing address was of record, notice of this decision was mailed to an incorrect address and returned as undeliverable. As such, the appellant was never notified of this decision. In any event, May 2009 rating decision had not become final because the NOD submitted November 2009 remained pending. Entitlement to service connection for the cause of the Veteran's death is granted pursuant to the PACT Act. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity (DIC) compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of death and thus entitlement to DIC benefits, the evidence must show that a service-connected disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when the disability singly or jointly with some other condition was the immediate or underlying cause of death, or etiologically related to such cause. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause, but which contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(c). Service connection for the cause of a veteran's death may be established by showing that a disability for which service connection has already been awarded was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under the PACT Act, "a disease specified in subsection (b) becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, air, or space service, notwithstanding that there is no record of evidence of such disease during the period of such service." See PACT Act Sec. 406. Here, the Veteran served in Iraq on or after August 2, 1990. Her service personnel records include a Recommendation for Award dated in August 1996 showing an achievement, between April 1989 and January 1992, whereby she deployed to Turkey and Iraq in support of Operation Provide Comfort. Additional service records verify her service in Saudi Arabia from May 1, 1991, to July 3, 1991. During her lifetime, the Veteran was diagnosed with one of the disabilities eligible for presumptive service connection under the Veterans Burn Pits Exposure Recognition Act of 2022. The PACT Act lists "reproductive cancer of any type" as the eligible disability and does not define reproductive cancer. The PACT Act and VA regulations fail to define reproductive cancers. Thus, the Board turns to dictionary definitions for assistance. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010) (noting that absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings). The most significant source of legislative history for diving the intention of Congress is the committee reports from the creation of the statute. Here, the House Veterans' Affairs Committee Report from February 2022 summarized Sec. 406 of the PACT Act including "reproductive cancers of any type such as breast cancer or ovarian cancer." H. Rept. 117-249, 117th Congress, 2nd Session. This statement clearly supports the fact that there are multiple types of reproductive cancer, and that breast cancer should be included in the burn pit presumption under the PACT Act. The Board finds that the Veteran's breast cancer is a type of reproductive cancer and is covered within the plain meaning of the language of the PACT Act when it says, "reproductive cancer of any type." As the Veteran had a diagnosis of breast cancer and served in Iraq on or after August 2, 1990, her breast cancer is presumptively service connected. Further, as breast cancer was listed as a cause of her death, service connection for the cause of Veteran's death is warranted. 38 U.S.C. §1310; 38 C.F.R. § 3.312. Finally, the PACT Act amends 38 U.S.C. § 1305 to allow for reevaluation of previously denied DIC claims that were denied prior to a law that modifies or establishes a presumption, and that might have been evaluated differently had the presumption been applicable to the claim. The PACT Act provides for the reevaluation of previously denied DIC claims, VA should assign effective dates "as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim" without regard to 38 U.S.C §§ 5110, 1305. Thus, an effective date before August 10, 2022, may be established in a DIC reevaluation. As the Board is granting this claim pursuant to the PACT Act, and the original June 2008 DIC claim was denied prior to the Act and has been continuously pursued and reevaluated to the present, the Board finds that it is not necessary to discuss any other theories of service connection because any alternate theory would not provide any advantage to the appellant with respect to the effective date of the grant. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.E. Brand, 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.