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Veterans Law

Burn Pit Claims

November 14, 2017
burn pit claims

In this video, founding partner Robert Chisholm talks to CCK’s Kerry Baker about burn pits. They discuss the chemicals (many of them known carcinogens) researchers have identified in burn pit smoke and the diseases and disabilities veterans are now experiencing as a result as well as things veterans exposed to burn pits can do to prove their claims, and the systemic issues in VA’s handling of these claims. Kerry Baker is a leader in the field of toxic exposure and veterans’ benefits. He has represented thousands of veterans exposed to Agent Orange, burn pits, and other military toxins and recently briefed members of Congress on the issue of burn pits.

The Burn Pits

Post 9/11, in the wars in Iraq and Afghanistan, the US military hired contractors to dispose of the massive amounts of waste produced on bases there. The contractors created burn pits—huge areas of land where open fires were used to burn waste such as plastics, ion batteries, appliances, medicine, dead animals, and old vehicles, to name just a few. Those who manned the burn pits used jet fuel to speed the burning.

The burn pits were located at nearly every forward operating base in Iraq and Afghanistan. The largest burn pit, located at Joint Base Balad in Iraq, was about 20 acres at its peak. In Iraq, burn pits were used from the beginning of the war until at least 2010. In Afghanistan, some burn pits are still being used.

If you were stationed at one of these sites, you were most likely exposed to smoke from a burn pit. Some exposures may have been more harmful than others depending on the atmospheric conditions and the proximity (i.e. closeness) of your living quarters and job site to the burn pit, but everyone was exposed to some extent.

The Resulting Diseases and Disabilities

As veterans return from the wars in Iraq and Afghanistan, we have begun to see a variety of diseases and disabilities that appear to be related to burn pit exposure. Many of these diseases are respiratory or pulmonary (lung-related) conditions. One of the more common pulmonary conditions is called constrictive bronchiolitis. It’s a rare fibrotic lung disease known to be caused by the inhalation of toxins. Additionally, doctors have seen a rash of autoimmune problems and various types of cancer occurring in the post-9/11 veteran population.

Unfortunately, we may not know the extent of the conditions (or the harm) resulting from burn pit exposure. Like in the case of Agent Orange, some diseases, especially cancers, related to the toxins may take years or even decades to emerge. We also don’t know how the many different chemicals found in burn pit smoke may interact with each other or how exposure will affect individuals with different sensitivity levels.

The Toxic Chemicals

Burn pits contain dozens of different, potentially harmful chemicals. Researchers even found the main toxin in Agent Orange—the dioxin TCDD—in samples of burn pit smoke.

Agent Orange was a 50-50 mixture of herbicides called 2, 4-D and 2,4,5-T. 2,4,5-T was contaminated with a dioxin called 2,3,7,8-TCDD. TCDD is the most potent dioxin on the planet. In fact, the potency of all other dioxins (and other environmental toxins) is measured based on how they compare to the potency of 2,3,7,8-TCDD.

The dioxin TCDD is a combustion byproduct. TCDD, like other dioxins, is created when certain chemicals are burned together. In the case of Agent Orange, dioxins were created as a result of the combustion process involved in making the herbicide.

Similarly, items in the burn pits contained a mix of chemicals that, when burned, released TCDD into the air. So TCDD, the most potent dioxin, was released by the burn pits, but—unlike Agent Orange—it was released along with dozens of other chemicals.

About half to two-thirds of the individual chemicals they found in burn pits are known Class A human carcinogens. For example, researchers detected significant levels of benzene, which is known to produce various types of leukemia and other disabilities.

Burn Pit Disability Claims at the VA

How to Establish Exposure

The VA’s record is spotty at best when it comes to burn pit claims. VA staff adjudicate burn pit claims on a case-by-case basis. In other words, there are no presumptions for burn pit exposure or related diseases, such as there are for Agent Orange.

As with any exposure-related disease, veterans must “establish exposure”—that is, provide evidence that they were exposed to a toxin during service. Historically, VA will not take someone’s word that they were exposed unless a legal presumption exists.

In the case of burn pits, however, VA does have a policy document that tells adjudicators to concede exposure if a veteran was in Iraq or Afghanistan and states they were near a burn pit. The policy exists because, 99% of the time, there is not enough evidence in a veteran’s claims file that shows, for example, that they worked 100 yards from burn pits. The information in service medical and personnel records rarely includes the kind of evidence or the level of detail that would be needed to verify exposure in this way.

With burn pit claims, establishing exposure is often the easier part of the process. Unfortunately, says Kerry, “the easy part stops there.” The rest has proven to be very challenging.

How to Establish a Medical Link (and thus service connection)

Once VA establishes exposure, you must show that there is a relationship, a medical or scientific link, between the exposure and the relevant disease or disability. This link is usually established through the submission of a (very good) medical opinion. Without that medical link, odds are the veteran will never get service connected for the burn-pit related disability.

Because the VA is not making these connections on its own, veterans must get their physicians to understand what the exposures were, the diseases they have, and how they’re connected. Not just “as likely as not” but explain what the exposures were and how those particular elements are a factor in the development of that particular disease.

CCK is winning burn pit claims, despite the challenges

Our law firm, CCK, has worked with a few medical experts that have successfully provided medical opinions like those mentioned above. These expert opinions are helping us win claims before the VA that were initially denied. In fact, we haven’t lost a burn pit-related claim yet, though the process remains difficult and lengthy.

Why is the VA getting burn pit claims wrong so often?

There are a range of reasons VA gets these claims wrong so often. VA raters—the adjudicators that evaluate and make initial decisions on claims–have training materials that tell them to obtain a medical exam from a physician if they receive a burn pit-related claim. Unfortunately, they rarely do this. Often, they get burn pit claims mixed up with other types of claims–for example, Gulf War Illness claims which, despite some overlap, are separate types of claims. Mistakes like these really damage the claims right from the start.

Other times, when VA raters do correctly develop the claims, they’re sending these veterans to doctors, nurses, or physician assistants who have no training on burn pits at all.  The doctors are provided with a mere one-page fact sheet (created by the VA) about burn pits.

The law gives VA raters a fair amount of flexibility in deciding these claims.  However, for years now, the structure of VA and the disability claims process has reduced that flexibility. Rather than directly evaluating the evidence, raters rely on being told which benefits it’s ok to grant or not grant. Unless they’re told it is ok, they typically deny the claim. Many simply do not think critically about individual claims, instead looking for policies and procedures that tell them what to do. Because there are no presumptions for burn pit exposure or related illnesses, these veterans are often at a loss.

If you are considering filing or appealing a burn pit-related claim…

If you’re a veteran who served in Iraq or Afghanistan and you feel that something is wrong physically, don’t assume that you’re just having bad luck. We don’t know what all of these exposures are going to lead to 5, 10, or 30 years from now. The face of VA law changes all the time (in the cases of Agent Orange and Gulf War Illness, for example) and new laws or presumptions for burn pit claims could be created.

If you’re sick, you should file a claim. If VA denies it the first time, you should appeal it. We don’t know what’s going to change down the road. If a presumption (or something similar) is eventually created, it could really end up helping that veteran (or that veteran’s surviving spouse) in the future by establishing an earlier effective date for the claim. Really consider seeking help from CCK or someone else you trust that knows how to handle these claims.