Generally, veterans must initiate the VA disability process. The situation is reversed for Afghanistan and Iraq War burn pit victims.
“We’re dealing with veterans who in some cases have waited decades for these benefits and in some cases are dealing with terminal illnesses,” Joshua Jacobs, VA Benefits Undersecretary, said.
Since the PACT Act took effect, over a half-million veterans have filed service-related toxic exposure claims. They say they breathed in toxins from things like burn pits and burning oil fields. VA bureaucrats have processed slightly more than half of these claims, and the backlog gets bigger every day. As a result, the department is hiring and improving employee training.
“We’re pushing more employees, so that there are more people to do the work and it’s also why we’re investing in things like technology, so that our employees are more efficient and effective,” Jacobs explained.
Why the DoD Used Burn Pits
Most campers throw plastic bottles, Styrofoam cups, and other garbage into campfires. Even a neophyte Boy Scout knows not to breathe the toxic smoke. These small-scale, temporary burn pits are ideal waste disposal solutions, especially if the campers are only staying the weekend. The DoD recognizes these virtues as well, which is why the agency approves temporary burn pits.
When the Iraq War broke out, most military planners expected a repeat of the 1990 Persian Gulf War. American forces will sweep in, Iraqi forces will give up, and Bob’s your uncle.
Planners did not account for the fact that the Persian Gulf War was a limited conflict. Because of the limited UN mandate, American forces did not push much further north than the Iraq-Kuwait border. Very few people lived in this desert area. In the Iraq War, American forces had to sweep across a California-size country with New York City-size towns. Additionally, when people feel their families and homes are threatened, they fight back, regardless of the invading army’s good intentions.
Because of this miscalculation, planners thought burn pits would do just fine. As the fighting bogged down, the burn pit campfires got bigger and bigger. Despite health warnings from inside its own ranks, the DoD did nothing.
These huge, roaring burn pits that belched toxic smoke caused many veterans and contractors, mostly contractors, to develop constrictive bronchiolitis (CB), brain cancer, and other serious illnesses.
CB is an often debilitating lung disease. Young, healthy people, like combat troops, almost never get this disease unless there is an environmental cause. Toxic particles build up in breathing passageways. At first, these victims have trouble breathing during activity. Then, they have trouble breathing at rest. At that point, a risky and radical lung transplant is usually the only treatment option.
These toxic particles poison other parts of the body as well, such as the brain. Heavy metal particles in auto parts, rubber tires, and other burn pit refuse often migrate to the brain. Initially, brain cancer victims might have some cognitive impairment or other such symptoms. When more advanced symptoms appear, radical chemotherapy, radiation, and surgery is usually the only treatment option.
For years, the VA blamed such illnesses on the desert environment and denied these disability claims. The Department of Labor, which administers the Defense Base Act, was ahead of the curve. More on that below.
Contractors and Burn Pits
Burn pit smoke injured thousands of veterans. This smoke disproportionately injured private military contractors in Afghanistan and Iraq. KBR contractors, in particular, often drew burn pit maintenance duty.
Contractors are like office temp workers. Other people in the office slightly resent them because they make more money. Furthermore, since other office workers know a temp might not be there tomorrow, there is no caring relationship. So, office temps usually get the lousy tasks that no one else wants.
Servicemembers know what they are getting into when they sign up, and so do private military contractors. So, they embrace the grunt work role and other support roles as well. These support roles include morale officer, translator, and technician.
Hands down, the Iraq War was hardest on the Iraqi people. But it was no picnic for American soldiers and airmen either. For months at a time, these individuals lived in the middle of nowhere on the other side of the world with little or no contact with family and friends back home.
In this environment, morale officers play important and difficult parts. Combat troops must keep their edge during long periods of inactivity. Something has to break up the routine. Furthermore, the Iraq War was not a very popular conflict, at least among some people. Morale officers also give soldiers a sense of purpose.
Many contractors aren’t U.S. citizens or even U.S. residents. Contractor translators avoid the “collaborator” label. They don’t work for the Army. They work for an obscure overseas service company that no one has ever heard of.
High-tech weapons are part of the aforementioned edge that U.S. troops have over opponents. Fancy weapons and devices have lots of moving parts, most of which were not designed to hold up in a harsh desert environment. Contractor technicians, many of whom worked for the company that designed and built the gadget, keep these systems online.
Injury Compensation Available
The Defense Base Act pays no-fault benefits to burn pit and other injuries to overseas contractors. However, the road to maximum benefits is often long and winding.
This road begins with an injury report. After a fall, vehicle collision, or another such trauma incident, filing a report is just a matter of filing paperwork. Occupational disease claims, like cancer and lung disease, are different. By the time doctors diagnose these victims with these illnesses, the claims deadline has usually passed.
Late applications are no problem in these situations. The delayed discovery rule usually applies. Generally, victims do not have to file claims until they know the full extent of their losses and they know their losses are deployment related.
Sometimes, these injury claims settle almost immediately. Usually, however, they settle prior to an Administrative Law Judge appeal hearing. This pattern is especially common in burn pit claims.
Insurance adjusters typically deny burn pit claims. Things change prior to an ALJ hearing. In 2017, an Administrative Law Judge from the Department of Labor ruled that burn pit smoke caused deployment-related lung disease (DRLD), an umbrella term for a number of breathing problems.
Such decisions are usually binding precedent that future ALJs must follow. So, insurance company lawyers know they are heading for a fall in burn pit injury claims. Therefore, they are motivated to settle these claims on victim-friendly terms.
For more information about DBA eligibility, contact Barnett. Lerner, Karsen, Frankel & Castro, P.A.