Just before the end of the regular session, Republican Governor Greg Abbott approved a measure which would collect burn pit exposure information from Iraq War veterans and share it with the Department of Veterans Affairs.
State Rep. Abel Herrero (D-Corpus Christi) and Sen. Juan “Chuy” Hinojosa (D-McAllen) co-sponsored the bill. It requires the state Department of Human Services to set up a burn pit registry similar to the one that the Veterans Administration once ran. The DHS registrants must include contact information and medical data. Once the DHS registry is up and running, it will electronically link with the VA in Washington.
“We had heard from Texas veterans that the federal registry was not doing enough, so we took necessary action and created the Texas Open Burn Pit Registry to help address those deficiencies. Texas will go above and beyond to help our service members. Collecting data, veterans tell us, is necessary to find answers and proper medical treatment for them. If the VA does not want to do what is right for Texas veterans, we will lead the charge and do whatever we can for our service members,” remarked Herrero.
The VA is under no legal obligation to process the data or act on it in any way.
The Story Behind Burn Pits
Texas lawmakers basically took up the torch that the federal government dropped when it cancelled the VA’s burn pit registry. Attorneys essentially do the same thing. When insurance companies hesitate to protect injured contractors, we step up.
When the U.S. invaded Iraq in March 2002, most military planners, and most pundits as well, expected a quick, Persian Gulf War-style victory. Since a large number of U.S. troops would only be in-country for a few weeks, there was no need to worry about infrastructure issues like waste disposal. In fact, during that 1990 war, many ground forces only accepted troop surrenders. The fighting was pretty much over by the time American tanks began rolling.
But there is a big difference between invading and conquering Kuwait, which is about the size of the Denver/Colorado Springs metro area, and invading and conquering Iraq. This country is about twice the size of Colorado and it is not just one big desert. There are rivers, mountains, and other natural obstacles to overcome, in addition to enemy troops.
Burn pits are an outstanding temporary waste disposal alternative. You dig a hole, fill it with trash, douse it with jet fuel, and throw in a match. What could be easier? That outline is a bit oversimplified, but not by much.
However, burn pits are a poor interim waste disposal solution. Burning metal, rubber, and other trash creates toxic smoke with high levels of heavy metals, like mercury. Any exposure beyond a puff or two could cause serious, long-term injuries. Speculation abounds that Beau Biden, the former Vice-President’s son, developed fatal brain cancer because he was too close to burn pits.
But by the mid-2000s, when it became apparent that the United States would be in Iraq for quite some time, military planners had higher priorities than waste disposal. So, this issue went on the back burner.
The military did not ban burn pits in Southwest Asia until 2010. By that time, hundreds of thousands of servicemember and contractor veterans had been exposed to the toxic smoke.
The VA has consistently denied that burn pits are responsible for serious lung injuries and other diseases. Fortunately, the Department of Labor, which administers the Defense Base Act, has taken a different approach.
Burn Pit Injuries and Contractors
Deployment-related lung disease is probably the most common burn pit illness. DRLD is an umbrella term for a wide range of breathing problems. Most of these victims deal with bronchiolitis obliterans, or “popcorn lung.” This disease constricts some of the smallest and most vital breathing areas in the lungs, leading to chronic shortness of breath. A microwave popcorn flavoring chemical, diacetyl, gave this disease its nickname. This toxic chemical, which is no longer in microwave popcorn, is also in some cigarettes and e-cigarettes. Other chemicals may cause popcorn lung, as well.
In January 2018, a Labor Department Administrative Law Judge ruled that there is a connection between burn pits and DRLD. The ALJ rejected the insurance company’s assertion that dust and other environmental factors caused the victim’s DRLD. ALJ Christopher Larsen noted that the victim was stationed in a mountainous area where there was little dust. Additionally, Larsen found the insurance company’s expert testimony on the subject to be entirely unpersuasive.
So, if you were an Iraq or Afghanistan contractor and you have symptoms like shortness of breath, coughing, or chest tightness, you need to see a lung specialist. And, you need to make sure this specialist knows that you worked near a burn pit that belched toxic smoke. Without this additional information, many doctors will not make the connection between a lung problem and toxic exposure. Instead, they may say the victim has something like COPD, prescribe an inhaler, and send the person home.
The Defense Base Act and Medical Bill Compensation
Serious lung diseases like bronchiolitis obliterans are incredibly expensive. They often require radical surgical treatment, up to a lung transplant. To make matters worse, many health insurance companies refuse to cover these costs, for liability reasons. Of course, that is assuming the victim receives a proper diagnosis to begin with. As mentioned above, if the victim does not seek the right kind of help, misdiagnosis is likely. In this context, misdiagnosis could be an incredibly big problem.
The DBA takes care of all these things. Typically, injured overseas contractors can choose their own doctors and change physicians at any time. So, victims do not just get the treatment they can afford at the time. They get the best possible treatment, which leads to the fastest possible recovery.
Moreover, in most cases, the insurance company pays all medical expenses directly. Most injured victims never see medical bills and they are not responsible for any unpaid charges.
If the insurance company drags its feet, a lawyer can arrange for continued medical services at no upfront cost. Attorneys negotiate with providers, who agree to defer payment until the case is resolved. These negotiations often mean lower fees, which means more settlement money in the victim’s pocket.
This payment procedure applies to all reasonably necessary medical expenses. This category includes things like:
- Emergency care in a foreign hospital,
- Follow up emergency care at a larger medical facility in Europe or the United States,
- Regular lung disease-related medical checkups,
- All MRIs and other diagnostic tests,
- Physical therapy,
- Prescription drugs,
- Medical devices, and
- Ancillary medical costs, like transportation expenses.
These ancillary medical costs may also include transportation expenses for friends and family who visit victims in faraway medical facilities.
To learn more about DBA procedures, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.