Blog By: Bethany Thompson

Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) amended Title 38, Section 1120 of the U.S. Code, expands health care benefits available to veterans exposed to environmental toxins.[i] It does something else incredible: it presumes certain conditions are linked to military service if the veteran meets all requirements.[ii] For purposes of receiving service-connected disability, this Act adds several new diseases now presumed to be connected to military service, including reproductive cancers “of any type.”[iii] In other words, as a reproductive cancer, breast cancer[iv] is now assumed to be connected to military service.[v]

This expansion is very important because young[vi] veterans have a twenty to forty percent higher incidence of breast cancer than the national average; however, linking breast cancer to service is nearly impossible.[vii] Black veterans have a forty percent higher chance of invasive breast cancers than white veterans.[viii] Breast cancers diagnosed in young women are likely to be more aggressive and do not respond to treatment as well.[ix] All known women veterans that were assigned male sex at birth and diagnosed with breast cancer between 1996 to 2013 were documented.[x] There were only three veterans in this category.[xi] All three women presented late-stage and the breast cancer was fatal.[xii] According to the Veterans Affairs (VA), 700 new breast cancer diagnoses occur every year, but this does not include veterans that do not receive their care from the VA.[xiii]

One cause for this increased risk is likely connected exposure to burn pits and other toxins—literally breathing the air—while serving in Iraq, Afghanistan, and other countries of deployment on or after August 2, 1990.[xiv] The PACT Act requires that veterans be screened for toxic exposures and assumes that veterans who served in certain locations were exposed to certain toxins.[xv] Veterans enrolled in the VA are initially screened for toxic exposures and subsequently screened every five years.[xvi]

However, the current screening process does not appear to incorporate the required screening process, leaving many veterans unaware of their increased risk of illnesses. Currently, the VA screening process asks whether the veteran was exposed to open burn pits and other airborne hazards.[xvii] The PACT Act was intended to recognize “toxic exposure as a cost of war” and to “authorize[] access to health care for ALL toxic-exposed veterans,” even those previously denied VA benefits,[xviii] not just veterans who were aware of their exposure. The VA is required to ask specific questions “about the potential exposure of the veteran to an open burn pit[] and regarding toxic exposures that are commonly associated with service in the Armed Forces[. . . .].”[xix]

Requiring two specific questions—one for the potential exposure as determined by the VA’s Secretary—indicates that the VA should also ask whether veterans have served where burn pit toxins were presumed to exist.[xx] Framing the questions around the criteria by asking whether the veteran has been exposed (1) serves to capture every veteran as intended by the legislature and (2) acts as a notification tool so that veterans are aware they were exposed to burn pit toxins. Hopefully, as awareness around increased risks expands, women will learn they are at an increased risk of breast cancer and other health issues related burn pit exposure, but awareness is unlikely to result from the current VA screening process as arguably intended by Congress.

* Personal note: I served in Taji, Iraq during 2011’s Operation New Dawn. It was not until researching for this blog that I discovered my presumed exposure to burn pits and known exposure to particulate matter. During my most recent VA visit (2023), I was screened for toxic exposure by simply being asked if I had ever been exposed to toxins, such as burn pits. I responded with a confident, “no” because, had I been exposed, I was confident someone would have told me or I would have otherwise known. I was wrong.

[i] Wolf v. McDonough, 2022 WL 17368108, at *3 (Vet. App. 2022).

[ii] See Honoring Our PACT Act of 2022, 38 U.S.C. § 1120.

[iii] See id.

[iv] H.R. 3967, 117th Cong. § 406 (2021) (“The illnesses include respiratory conditions and 11 types of cancer. This includes respiratory cancers of any type such as lung cancer and reproductive cancers of any type such as breast cancer or ovarian cancer”); Craig Coleman, Veterans Breast Cancer Claims Speeded Through PACT Act, Veterans Affs. (Oct. 19, 2022), https://news.va.gov/110078/veterans-breast-cancer-claims-speeded-through-pact-act/ [https://perma.cc/76QC-R24U].

[v] 38 U.S.C. §§ 1120(a)- (b)(2)(E).

[vi] Forty years old or younger.

[vii] Rajeev Samant, Mechanisms that impact metastatic progression of triple negative breast cancer, Nat’l Inst. of Health Rep. (2021), https://reporter.nih.gov/project-details/10009841 [https://perma.cc/W2LD-G2TY] (last visited Apr. 7, 2023).

[viii] Kelly Kennedy, “The enemy is lurking in our bodies”—women veterans say toxic exposure caused breast cancer, Mil. Times (Oct. 17, 2021), https://www.militarytimes.com/news/your-military/2021/10/17/the-enemy-is-lurking-in-our-bodies-women-veterans-say-toxic-exposure-caused-breast-cancer/ [https://perma.cc/5JJV-56W2]; Military Burn Pits and Cancer Risk, Am. Cancer Soc’y, https://www.cancer.org/healthy/cancer-causes/chemicals/burn-pits.html [https://perma.cc/SU27-K3CJ] (last visited Apr. 7, 2023).

[ix] Breast Cancer in Young Women, Cleveland Clinic (Sept. 18, 2019), https://my.clevelandclinic.org/health/articles/16805-breast-cancer-in-young-women [https://perma.cc/3DNW-JRNM] (last visited Apr. 7, 2023).

[x] Id.

[xi] Id.

[xii] George Brown, Breast Cancer in Transgender Veterans: A Ten-Case Series, Nat’l Inst. of Health (Mar. 2, 2015), https://pubmed.ncbi.nlm.nih.gov/26790021/ [https://perma.cc/8QXF-84ZU].

[xiii] Chris Daniels, Service members at risk? Young female veterans face devastating breast cancer diagnoses, The Nat’l Desk (Nov. 7, 2022), https://thenationaldesk.com/news/spotlight-on-america/service-members-at-risk-young-female-veterans-face-devastating-breast-cancer-diagnoses-possible-burn-pit-exposure-afghanistan [https://perma.cc/DDB8-4YTL]; VA creates National Women Veterans Oncology System of Excellence in fight against breast cancer, Veterans Affs. (Oct. 20, 2020), https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5549#:~:text=%E2%80%9CEach%20year%2C%20an%20estimated%20700,VA%20Deputy%20Secretary%20Pamela%20Powers [https://perma.cc/GY4D-3M53].

[xiv]The PACT Act and your VA benefits, Veterans Affs., https://www.va.gov/resources/the-pact-act-and-your-va-benefits/?utm_source=bing&utm_medium=paid_search&utm_campaign=ar_pact_fy23_veterans#toxic-exposure-screenings [https://perma.cc/2GSY-MFUD] (last visited Apr. 7, 2023).

[xv] H.R. 3967, 117th Cong. § 603 (2021); 42 U.S.C. § 1119(a).

[xvi] VA creates National Women Veterans Oncology System of Excellence in fight against breast cancer , supra note xiii.

[xvii] Id.

[xviii] H.R. Rep. No. 117-249, at 4, 6.

[xix] Honoring Our PACT Act, 38 U.S.C. § Pt. II, Ch. 11 note (Incorporation of Toxic Exposure Screening for Veterans, Specific Questions) (emphasis added).

[xx] See The PACT Act and your VA benefits, supra note xiv.