Under pressure from advocates and lawmakers, the Veterans Administration fast-tracked some burn pit respiratory illness claims.
The change applies to Iraq veterans who served after 1990 and Afghanistan and Syria veterans who served after 2001. The veteran must have been diagnosed with a listed condition within 10 years of returning home. “Through this process, I determined that the evidence provided was sufficient to establish presumptions of service connection for these three respiratory conditions,” VA Secretary Denis McDonough said in a statement. “This is the right decision, and VA will continue to use a holistic approach in determining toxic exposure presumptives moving forward.”
The agency said it would consider adding additional conditions to the presumptive illness list as the rulemaking process continues.
Burn Pits and Contractors
Speed is usually the crucial factor in foreign wars. The sooner an army meets its objectives, the sooner it leaves, and the happier everyone is. Therefore, planners often assume that armies will constantly be on the move. As such, there is no reason to set up infrastructure for items like waste disposal. Burn pits do nicely in these situations.
If you have ever been camping, you have probably seen a burn pit. Garbage goes into a fiery hole, or perhaps onto a campfire, and that is that. That is an effective way, if not entirely environmentally-friendly way, to dispose of small amounts of garbage. But if you camped at that spot for six months, and hundreds of people were with you, a burn pit simply does not work.
Even though they are only temporary measures, and despite repeated internal safety warnings, the DoD continued to sanction burn pits well into the Iraq War. The private military contractors who served in this war were much like office temp workers. They got the assignments no one else wanted. So, guess who was largely responsible for creating and maintaining these burn pits.
Since contractors bore the brunt of these operations, that may be one reason the Department of Labor, which administers the Defense Base Act, was way ahead of the curve in this area. Around 2017, several DOL Administrative Law Judges determined that there was a connection between burn pit smoke and serious illness. More on that below.
The VA resisted this pressure, along with pressure from veterans’ advocate Jon Stewart. Additionally, legislation pending in Congress would make sweeping changes to the VA’s anti-burn pit stance. Like the mysterious Gulf War Syndrome before it, and Agent Orange exposure before that, the VA has consistently denied that there is any connection between burn pits and the serious illnesses outlined below.
Burn Pit Injuries
The VA’s preliminary burn pit finding is limited to rhinitis, sinusitis, and asthma, three breathing conditions which, in most cases, are not very serious. If the victim has a pre-existing condition, things are much different.
Other, more serious injuries connected to burn pist smoke include constrictive bronchiolitis and various kinds of cancer, including brain cancer.
CB is a disease which effectively closes the small airway tubes in the lungs. Young people who are generally healthy, such as Iraq War veterans, almost never develop constrictive bronchiolitis. This condition, which is also known as popcorn lung, begins when scar tissue builds up in the bronchial passages, in this case because of the super-heated burn pit smoke. This scar tissue causes severe inflammation.
Constrictive bronchiolitis is not curable or even effectively treatable. Steroids and other medications slow the disease’s progress, but do not reverse or stop it. A radical lung transplant might add a little time to a victim’s lifespan. However, this disease is normally fatal within a few years, or even a few months.
CB, along with the aforementioned three presumptive VA lung diseases and COPD, are under an umbrella known as Deployment-Related Lung Disease. The Department of Labor recognizes a link between DRLD and burn pit smoke.
Burn pit smoke contains a number of toxic particles. That’s because the refuse burned usually includes medical waste, truck parts, rubber tires, Styrofoam cups, plastic water bottles, and other toxic materials. When people inhale these particles, or they absorb through their skin, their bodies cannot process them. So, they build up and cause tumors. Furthermore, toxic particles alter cell chemistry, turning healthy cells into malignant cells.
Beau Biden, the President’s son, fell victim to brain cancer after he returned from JAG duty in Iraq. “He volunteered to join the National Guard at age 32 because he thought he had an obligation to go,” his father said in 2019. “And because of exposure to burn pits — in my view, I can’t prove it yet — he came back with stage 4 glioblastoma.”
VA compensation is available for cancer and DRLD. But it is very difficult to establish a service-related connection in these situations.
Compensation Available
In contrast, the Defense Base Act covers these injuries, partially because of the aforementioned DOL finding, and partially because of the broad nature of this law.
Given the low survival rate, medical expenses in CB and other critical DRLD issues typically are not very high. However, the lost wage compensation is usually quite high. This compensation, which is available through the Defense Base Act, must replace the income the family loses as a result of the victim’s premature death.
Determining future earning potential is often a speculative process, at best. Therefore, many attorneys partner with vocational experts and other such professionals to determine a fair amount for lost future economic support. Frequently, this amount is based on the victim’s Average Weekly Wage. The AWW includes regular cash compensation, as well as irregular and non-cash compensation, like housing allowance and performance bonuses.
Obviously, the decedent would not have been a private military contractor for the rest of his/her life. So, there are some additional factors as well.
Cancer is a different story. Survival rates for this disease have greatly increased since the 1990s. Progress is not cheap. So, the average cancer-related medical bill has gone through the roof as well. That’s especially true regarding the rare and aggressive forms of cancer that burn pit victims often develop.
The Defense Base Act normally pays all reasonably necessary medical expenses. Insurance companies often challenge this award if the victim received a cutting-edge or experimental treatment, arguing that the treatment wasn’t reasonable under the circumstances. Attorneys advocate for victims in these situations.
For more information about DBA procedure, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.