Citation Nr: A25041278 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240401-429859 DATE: May 6, 2025 ORDER Entitlement to service connection for neck cancer for accrued benefits purposes, pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act (PACT Act) of 2022, is granted. FINDINGS OF FACT 1. The Veteran's service records indicate he served in Kuwait. 2. The Veteran died in September 2017, with the immediate cause of death listed as neck cancer. 3. The Veteran's diagnosis of neck cancer is due to his presumed exposure to toxins while serving in Kuwait. CONCLUSION OF LAW The criteria for entitlement to service connection for neck cancer for accrued benefits purposes, pursuant to the PACT Act, have been met. 38 U.S.C. §§ 1110, 1119, 1120, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1973 to July 1976 and November 1990 to June 1991, to include in Kuwait. The Veteran died in September 2017. The appellant, the Veteran's wife, was properly substituted in this case. See November 2017 VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child; July 2021 Death Certificate; March 2024 Notification Letter. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. The Board notes that the appellant indicated her wish to appeal the July 2023 letter that included instructions on using the proper claims form. However, the Board recognizes that the March 2024 rating decision is on appeal. Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to service connection for neck cancer for accrued benefits purposes, pursuant to the PACT Act. The appellant contends that the Veteran's neck cancer is a presumptive disability under the PACT Act and entitlement to service connection is warranted. See April 2024 VA Form 10182 Notice of Disagreement. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). On August 10, 2022, the PACT Act became law. Significantly, a notable element is that any type of neck cancer is presumed to be due to exposure to burn pits and other toxins. See 38 U.S.C. § 1120(b)(2)(B). For purposes of this section, in pertinent part, the term "Persian Gulf Veteran" means a Veteran who on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in, including airspace above, Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or United Arab Emirates. 38 U.S.C. § 1119(c). Here, the appellant contends that the Veteran's diagnosed neck cancer, was incurred in service as a result of environmental exposures during his Persian Gulf service. As an initial matter, the Board notes that diagnoses and treatment for neck cancer prior to the Veteran's death are confirmed by post-service VA treatment records as early as 2002, at various times diagnosed as throat cancer, tonsillar cancer, and neck cancer. See September 2003, January 2004, June 2017, April 2022, and February 2024 CAPRI. The Veteran's death certificate also lists his immediate cause of death as neck cancer. See July 2021 Death Certificate. The Veteran's DD-214 reflects that he was deployed to Kuwait. Moreover, a May 2023 VA TERA Memorandum shows that the Veteran is a Persian Gulf Veteran as specified under 38 U.S.C. § 1117 and is a covered Veteran for toxic exposure under 38 U.S.C. § 1119. Accordingly, the Veteran had confirmed service in the Persian Gulf, and therefore exposure to burn pits and other toxins is presumed. See December 1993 Certificate of Release or Discharge from Active Duty; December 2022 and January 2023 VA Memo; see also May 2023 other (TERA Memo). The PACT Act recognizes neck cancers of any type as conditions that can be presumptively service connected to burn pits and other toxins exposure. Therefore, in light of the evidence of his exposure to burn pits and other toxins exposure, diagnosis of neck cancer as the immediate cause of the Veteran's death, and the PACT Act's recognition of presumptive service connection, the Board finds that presumptive service connection for neck cancer for accrued benefits purposes is warranted. 38 U.S.C. § 1120(b)(2)(B). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Garey 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.