After much debate, the President signed a measure extending VA disability benefits to some Southwest Asia burn pit victims.
The PACT Act adds conditions related to burn pit and toxic exposure, including hypertension, to the Department of Veterans Affairs list of illnesses that have been incurred or exacerbated during military service, removing the burden for veterans to prove that their toxic exposure resulted in these conditions. It could provide coverage for up to 3.5 million toxic-exposed veterans.
This legislation has special meaning for Biden. He has maintained that burn pit smoke caused his son to develop fatal brain cancer.
Burn Pits in Southwest Asia
The idea of burn pit waste disposal is a bit like throwing used plates and leftover hotdogs into the campfire while the group shoos away a coyote. As long as there is not much refuse and you are leaving the next day, these DIY incinerators are reasonably safe.
At the beginning of the Iraq War, most planners anticipated something similar to that. After all, during the 1991 Persian Gulf War, Saddam’s army folded faster than Superman on laundry day. So, they saw no need to set up an extensive trash collection network with pickup every Tuesday and Friday.
The fighting quickly bogged down, but makeshift waste disposal techniques remained in place. Since combat units remained in basically the same place, the burn pits became much bigger than campfires, and the combustibles weren’t limited to hotdogs. After a few months, huge open-air pits blanketed military installations with toxic smoke, mostly because these pits contained refuse like:
- Metal auto parts,
- Unused ordinance,
- Styrofoam cups,
- Rubber tires,
- Medical waste, and
- Unused construction materials.
Some military installations even got unwanted burn pit nicknames. Because its burn pits were unusually large and smoky, Joint Base Balad was known as “Camp Anaconda.”
Exposure to toxic smoke triggered several chronic, serious illnesses, like cancer and severe breathing problems.
Many of the aforementioned materials contain heavy metals and other harmful sy=ubstances. Once these particles enter the body, they remain there, because the body cannot dispose of them. So, they accumulate, alter cell chemistry, and form tumors. The average cancer latency period is more than thirty years. Therefore, even today, many Iraq and Afghanistan War veterans, and contractors, who breathed toxic smoke may have no idea that tumors are growing in their bodies.
Doctors may be partially to blame because they fail to perform the right diagnostic tests. Then again, if a person is young, generally healthy, and has no genetic cancer risks, there’s no need to look for this disease.
Speaking of young and generally healthy people, these individuals seldom contract constrictive bronchiolitis, a very serious burn pit-related lung disease. The toxic smoke burns breathing passages in the lungs, creating scar tissue. Once enough of these tiny passages are blocked, many of which are no bigger than the tip of a pencil, a risky and expensive lung transplant is the only effective treatment.
Burn Pits and Private Military Contractors
Everyone who served on a military base in Iraq or Afghanistan is at risk for a burn pit-related condition. But for years, the DoD denied there was a connection. Instead, these bureaucrats blamed conditions like cancer on another environmental factor unrelated to the war. They often blamed lung diseases on the dry and dusty climate, as opposed to burn-pit smoke.
However, the Department of Labor, which administers the Defense Base Act. was ahead of the curve in this area. 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 several breathing problems.
One reason the DOL was ahead of the curve is that many contractors, especially KBR contractors, worked very close to burn pits. In general, contractors often get the dirty jobs no one else wants. Shoveling garbage into a flaming, open pit certainly qualifies as a dirty job.
Typically, these dirty job contractors had almost no protection. As we learned during the COVID-19 pandemic, thin paper masks are a little more protective than covering your mouth and nose with your hand. But they aren’t much better.
Usually, the failure to warn about the risk and the failure to provide protective gear is not relevant to the award of Defense Base Act benefits. But, this evidence is relevant to the amount of benefits awarded.
Injury Compensation Available
Lost wage replacement might be the most important Defense Base Act benefit. Without it, stress over unpaid bills might make it impossible for many victims to recover.
Usually, lost wage replacement hinges on the victim’s Average Weekly Wage. Sometimes, AWW calculation is straightforward. Frequently, however, it is rather complex.
Past wages do not always accurately reflect future wages. Assume Chris is hurt in a car crash in Germany on his way to Syria. Since he is not technically deployed yet, his current wages might be different from his deployment wages.
On a related note, for DBA purposes, Chris’ AWW should also include items like missed overtime opportunities and prorated signing bonus payments.
Furthermore, the AWW includes more than regular cash compensation. In addition to things like overtime and prorated bonus payments, as mentioned above, the AWW includes non-cash compensation, such as housing allowances, per diems, and tuition reimbursement.
With these things in mind, let’s look at the different kinds of Defense Base Act wage replacement settlements:
- Temporary Total Disability: TTD victims cannot work until they recover from their injuries. So, the DBA usually pays two-thirds of the victim’s AWW for the duration of that temporary disability.
- Temporary Partial Disability: As they recover, many victims “graduate” from the TTD category to the TPD classification. These individuals can work, but they must reduce their hours or accept a light duty assignment. So, the DBA usually pays two-thirds of the difference between the old and new AWWs.
- Permanent Partial Disability: Many PPD victims have trauma injuries that never fully heal. Others have occupational diseases which are partially disabling, such as deafness in one ear. In either case, the DBA usually pays a lump sum based on the nature and extent of the disability.
- Permanent Total Disability: Roughly the same thing applied in PTD cases. Bear in mind that the D-word is not just a medical term. Some injuries are disabling to some people largely based on their vocational and educational background. Loss of a hand would be disabling for many people, but probably not disabling for a college professor.
A DBA claim can settle at any time. Usually, settlement negotiations begin in earnest after medical treatment is at least substantially complete. At that point, an attorney can determine a reasonable amount for future medical expenses. Unless the settlement accounts for such costs, the victim could be financially responsible for them.
For more information about available medical benefits, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.