More information about burn pits and VA disability compensation claims related to burn pit exposure:
1. An infographic showing all the toxic materials found in burn pits and the chemicals detected in burn pit smoke.
2. Medical conditions related to burn pit exposure
3. CCK’s video about how to file a burn pit-related VA disability claim
Robert: Good afternoon. This is Robert Chisholm, from Chisholm Chisholm & Kilpatrick and with me today is Kerry Baker, also from the firm Chisolm Chisolm & Kilpatrick, and today we’re going to be talking about burn pits. But Kerry, I think before we talk about burn pits, I think it’s important to sort of talk about what’s going on at the VA in general and I think it’s important to point out to folks that the fact that the Secretary of Veterans Affairs has left his position whether it was voluntary or involuntary. I think some of our listeners will want to know that things will continue on at the VA.
Kerry: Yes. I mean, there’s- it’s too big of an operation for one person at the top to really stop it. I mean, you still have the undersecretaries that will make sure the day-to-day operations keep going.
Robert: So, there’s people at the Board of Veterans’ Appeals that are in charge there, there’s someone as Undersecretary of Benefits for the Veterans Benefits Administration and also importantly on the VHA side, the healthcare side, there are undersecretaries and although the new secretary has not been confirmed. He’s been nominated and we’ll just wait and see how that plays out.
Robert: Okay. So, let’s turn to burn pits. First of all, I’d like to begin by saying, what is a burn pit? That’s my first question, and what periods were the burn pits used in, as best we know now?
Kerry: Best we know the burn pits were used all throughout the wars in Iraq and Afghanistan. Some are still going on to this day in Afghanistan at least to a more limited fashion but certainly during the first years up until quite recently they were rampant.
Robert: So, let me start again. Were they used during Gulf War 1?
Kerry: Not to the extent that they’ve been used in Iraq and Afghanistan, and not to the size.
Robert: So, mostly post-9/11 is what we’re talking about.
Kerry: Mostly post-9/11.
Robert: Okay. All right. So, generally speaking, what is a burn pit?
Kerry: For Iraq and Afghanistan purposes the burn pits were very large pits. Open-air pits were all of a base’s trash, were burned out in the open. Initially, there was no sorting of any of the material. It could include anything from plastics to rubber to hazardous materials, petroleum products. If it was trash, it was burned in the burn pits, depending on the size of the base but generally- would generally determine the size of the burn pit.
Robert: So, give me a range of the burn pit sizes from what we now know.
Kerry: The largest one was the burn pit in Balad or Joint Base Anaconda and at its height that one was more than 20 acres large.
Robert: 20 acres of land where they were burning things essentially.
Kerry: Right. In fact, at one point it was about 28 acres.
Robert: 28 acres, okay.
Kerry: Now that doesn’t mean the whole 28 acres were on fire but that the amount of land, the entire complex took up was 28 acres at its height.
Robert: Okay, and who was it that sort of, I’ll use the word managing or controlling these burn pits? Who was responsible for operating them if you will?
Kerry: Well, I mean, ultimately DoD was responsible, but in a large majority of the bases, contractors were used to manage them.
Robert: Now we’re talking about civilian contractors, not military personnel.
Kerry: Right. That’s not at every base. For example, like Kellogg Brown & Root, KBR operated a lot of the burn pits, but they’ve stated on record that they did not operate the one at Balad for example, that was run by the military, possibly by locals. So, the contractors didn’t operate every single one of them.
Robert: Okay. And you were saying that there were a lot of different materials that were burned or used that, you know that they were trying to get rid of. This was essentially how they got rid of any waste whether it was paper products, oil products, metal products, what else? What else went into these?
Kerry: Rubber products, petroleum products, body parts, medical waste, plastics, anything that was trash. I’ve heard stories that it wouldn’t have been uncommon especially in the larger burn pits to see full vehicles that were destroyed in the burn pit, almost full houses that have been bulldozed over and anything that might have been in them. So literally, a limitless number of things could have been in the burn pits.
Robert: So, the first thing that comes to mind when you’re talking about burning all these different materials is what kinds of toxins were released as a result of burning or incinerating all these different things?
Kerry: It would have been a range of various toxins. Would have been a numerous amount of hydrocarbons, numerous volatile organic compounds, numerous dioxins and furans, that type of thing that are normally chemicals of some high concern in whether it be military or civilian environmental matters.
Robert: And do we know if DoD did air sampling as a result of these burn pits to see what kind of toxins were actually being released into the air?
Kerry: To a limited extent. Now, there are some air samples that we know they took that nobody’s ever seen.
Robert: So what does that mean nobody’s ever seen?
Kerry: Well, I say nobody but they’re still classified.
Robert: All right. So, there’s some air samples they did take but those remain classified as far as we know right now.
Kerry: Right, but they have released a good amount of them and the problem that we’ve seen with their air sampling that we know about is that they did random air sampling, ambient air sampling. In other words, they didn’t test the toxins in the smoke stream, in other words, maybe a mile away at various locations, and just the ambient air. So, that presents a lot of problems. It provides some evidence of what generally was in the air from the burn pits as well as what was in the air even without the burn pits. But if you’re the person working in the smoke stream or in the burn pits or sleeping downstream of it, it’s not going to give you an anywhere close to an accurate measurement of the type of toxins and the number of toxins you were exposed to.
Robert: So, are you saying that the people on the base that were downstream were like, in the air flow as you put it, there were people sleeping in those areas that were constantly exposed to these burn pits?
Kerry: Absolutely. There were– depending on the direction of the smoke, housing facilities, at least at Balad, housing facilities were in the line of the smoke depending on the direction of the wind. It could have been blowing directly over your work area. At night when the atmospheric conditions shift the smoke would hold lower to the ground. You know, none of that takes into account the people working in the burn pit and going to the burn pit every day that the levels of toxins they would have been exposed to, well, nobody knows but it would have been tremendous just based on extrapolation from the ambient air samples that we do know about.
Robert: Again, this is Robert Chisholm and Kerry Baker from Chisholm Chisholm & Kilpatrick. We’re at cck-law.com and we’re talking today about burn pits. If you have any questions please ask your questions on Facebook and we’ll try and answer them to the best of our ability. So, VA has created a burn pit registry, right?
Robert: So, what is a registry and what’s the purpose of the burn pit registry in particular?
Kerry: The registry is basically just an open list for people to go on to and record their information in a very long list of other names, people that were exposed. There’s a lot of information you can provide in the registry about your lifestyle during service, after service, but it’s got its limitations as well.
Robert: What’s the general purpose of it? Why should a veteran do this?
Kerry: Well, the registry was created through an act of Congress. So, VA has to maintain the registry and I think probably the lay thought process was, the more information we have on people exposed to burn pits, the better we can determine the outcome of that exposure. But a registry doesn’t really provide the type of epidemiological data that the scientific community needs to make those decisions.
Robert: So, let’s pivot a little bit to that. Can we say now that certain diseases are a direct result of being exposed to the burn pit?
Kerry: Well, if you’re asking if VA considers?
Robert: Yes, does VA consider like for Agent Orange certain conditions presumptively a result of exposure to burn pits?
Kerry: Unfortunately not. There are no presumptive– there are no disabilities VA considers presumptively related to the burn pits at this point.
Robert: So, each case and I want to be clear about this, each case has to be decided on its own unique facts?
Kerry: That’s correct.
Robert: So, if a veteran is claiming that a condition is due to exposure at burn pits they have to get a medical opinion saying whatever the disease is is a result of that exposure?
Kerry: That’s correct.
Robert: Okay. Let’s talk about in general terms how does VA adjudicate those claims?
Kerry: Well, they adjudicate them, one, just as you insinuated, they’re on a case-by-case basis and they look for generally three different things. That’s the event in service and that would be the exposure.
Robert: Exposure to the burn pits would be the event.
Kerry: Right, and the condition, the disability or disease that the person is claiming they have, and then a medical link between that exposure and the disease.
Robert: Okay, and I’m guessing the challenge in most of these cases is first the level of exposure and then second, the medical opinion.
Robert: We have a question here. 20-year veteran deployed to Afghanistan seven times. I recently retired, I was diagnosed with asthma. Can I get my asthma service connected to burn pits? Asthma was never an issue before. So that’s a good question. So, no preexisting evidence of asthma. You would need to– I’m assuming– we’re going to assume you have a present diagnosis of asthma. You would need to get a doctor to say that the asthma was either due to the burn pits you were exposed to or it could also potentially be due to your service in Afghanistan. There could be something–
Kerry: And to go a little deeper on that particular question.
Robert: Oh, and this is a question from Jay.
Robert: Thank you, Jay.
Kerry: Jay, you said you’re a 20-year retired veteran, so I just generally getting information from you. I would ask well, when did you retire? How long after service did you get diagnosed with asthma? Because if it began–
Robert: Or you diagnosed in service.
Kerry: Or in service. If it began within a year of service, asthma is it one of the conditions that can be related to service just by the timeframe of its diagnosis, and then you wouldn’t need to show it’s related to burn pits. But, as if that’s not the case, if you’ve been out for a number of years and then diagnosed with it, seven deployments to Afghanistan is a lot, you’re definitely going to be exposed to environmental conditions there to include the burn pits. So in short, yes. You can definitely file a claim for a condition like that.
Robert: Is there a special, you know, with certain kinds of claims, like let’s take Camp Lejeune claims. Those are adjudicated generally speaking at one Regional Office. Is that also true for burn pits or are burn pits handled across the country?
Kerry: They’re handled by any Regional Office across the country.
Robert: Okay. So, they haven’t targeted them at one Regional Office as of now?
Kerry: No, they have not.
Robert: All right. Does the VA usually grant service connection for these burn pit claims? What’s our experience been so far?
Kerry: Our experience has been that they do not grant them under most circumstances. The first time somebody files it’s usually somewhat of a fight, sometimes a hard fight, sometimes not so hard of a fight. It’s different in every single case that somebody files. So, it’s hard to answer that question with any specificity.
Robert: Jay had a follow-up question maybe, without giving legal advice. He says that in February 2018 he was diagnosed within 90 days of returning from his first tour in 2002.
Kerry: I would file that claim.
Robert: Yes. So, if you haven’t filed a claim, you should definitely do that. All right. What is it that we’re doing on burn pit claims and have we been able to help veterans who have burn pit claims get them granted?
Kerry: So one, we are very familiar with the rules and regulations generally governing service connection for disability. We’re very, very familiar with the burn pits in general. We’re very familiar with the policy, to the limited extent VA has put policy out on burn pits, we are very familiar with that policy. We take an active approach in developing our burn pit claims. So, if we represent you, we want to know where were you? When were you there? How close were you to burn pits? How often were you that close to burn pits? We want to establish all of the facts that most likely your service records are not going to establish, so that an examining physician can kind of extrapolate the dose of things you might have been exposed, the dose level you might have been exposed to. We’re not ever going to get to that dose but obviously, if somebody was next to the burn pits on a daily basis, they were going to be exposed to a higher level of toxins than somebody that was 10 miles away and never approached them. Then we look for a medical link not to get too much in detail but we first we try to generally make sure VA does its job.
Robert: And by VA doing its job we’re talking about getting all the service records, reviewing all the evidence and then getting a medical opinion to see whether or not the condition that the veteran suffers from is related to service.
Kerry: Right. The limited policies that VA has published on the subject does require them to obtain a medical opinion. It does require them to give the examiner some bit of information as to what the burn pits were as well as potentially other contaminants in Iraq and Afghanistan. So, we want to see VA do its job in developing those cases properly. If it’s denied after that then we’ll handle it as each case dictates.
Robert: All right, and when you say as each case dictates, many times that requires us to get a- help by getting a medical opinion.
Kerry: That’s correct.
Robert: In fact, this might be a good time to talk about, we have an expert that we’ve used in some of these cases. Her name is Dr. Cassano and she’s a veteran herself and has worked in epidemiology and dealing with both Agent Orange exposure and burn pit cases. We recently had an opportunity to interview Dr. Cassano out in San Diego at a conference. She was kind enough to sit down with me for a little while and we’re going to be putting up her video on our website at cck-law.com, probably Monday or Tuesday. So, please check that out, she has a lot of good information not just on burn pits but also an Agent Orange related claims. So, in a case where the VA expert would say this condition isn’t related, we might go get an opinion from say, Dr. Cassano, who has a more thorough frankly understanding than most compensation and pension examiners, not to downplay what their role is but she has much more, a much better background in this kind of medical science.
Kerry: Right, she is an occupational health physician that’s worked in this type of area of practice for all of her life.
Robert: So, there was a recent ruling in a different area of law, in a workers’ compensation claim under something called the Defense Base Act. It was a ruling against KBR, and KBR again stands for—
Kerry: Kellogg Brown & Root.
Robert: And Kellogg Brown & Root were a private contractor, some of whom employees were working on the bases as civilian military contractors, as I understand it, right?
Kerry: That’s correct. They were at one point a subsidiary of Halliburton until they branched off on their own, I believe.
Robert: So, if an employee of KBR was exposed to burn pits similar to the way a veteran might have been exposed to burn pits, their avenue for benefits is to file a claim under what’s called the Defense Base Act. The Defense Base Act is also similar to the Longshore Harbor Workers Compensation Act, and the standard there is a little bit more stringent to prove a relationship to employment versus a veteran proving relationship to service, because the standard is more likely than not in the workers compensation whereas in veterans it’s 50/50, it’s at least as likely as not. So, have you had a chance to review that decision?
Kerry: I have.
Robert: Okay. So, can you sort of walk us through what happened in that case as best you understand it?
Kerry: Well, this was a KBR employee that worked around the burn pits, that did develop some severe disabilities and she filed her claims under the Act that you’re talking about. I don’t know all the specifics of the case but as I understand it, in that area there was– part of it is medical coverage and part of it might be compensation. They did agree that the burn pits did cause her disabilities and have agreed, if I understand the decision correctly, to provide her medical benefits.
Kerry: I don’t think it provided her compensation because she was still able to work and function but I don’t want to misspeak, if I’m incorrect on that.
Robert: So the bottom line was, this particular employee was able to show that her disability at least or it was both PTSD and a lung condition, if I’m not mistaken, was related to her work at KBR, while she was stationed I think in Mosul Air Force Base in Iraq.
Kerry: Right, and I don’t believe the PTSD was related to the burn pits but certainly other things are–
Robert: Her lung-related, yes.
Kerry: But it’s still her work, but her lung-related disability they did acknowledge, was related to the burn pits.
Robert: All right. Can that have any impact on a veteran filing a claim for disability benefits with the VA?
Kerry: Been a lot of questions on that. In my opinion, it doesn’t have a direct impact because it’s not a binding precedent that VA must consider.
Robert: VA doesn’t have to follow it. VA doesn’t have to say because someone was exposed here and they were an employee of KBR that all veterans who worked at Mosul Air Force Base are therefore also going to get benefits, right? And I think that’s an important point. On the other hand, it can’t hurt.
Kerry: It can’t hurt, it’s one piece to probably a much larger puzzle where an entity other than VA has agreed that its employee was harmed by the burn pits.
Robert: So, the other thing I wanted to touch on a little bit it was there was a class-action lawsuit filed. We know a little bit about this, it was filed against KBR and some of the other private contractors. Do we know the status of that class-action lawsuit at this point because it’s really been filed on behalf of all veterans if you will, who were exposed to these burn pits over this long period of time both in Iraq and Afghanistan if I understand it correctly.
Kerry: I don’t believe that lawsuit is ongoing anymore.
Kerry: I believe they were not able to prevail ultimately in that lawsuit, although I do know that it went on for a number of years. I don’t know exactly how many years, but they faced a very uphill battle with that going after the military’s contractor with the military supporting the contractor. That’s a hard fight to win.
Robert: So, let’s talk in general about without mentioning specific names, some of the conditions that some of our clients have been able to get service connected for burn pit exposure.
Kerry: Well, there’s been a number of different disabilities, lots of lung disabilities. I mean, that’s probably obviously some breathing problems whether they be constrictive bronchiolitis or some other asthma or some COPD or unknown breathing problems. We’ve been able to be quite successful there because that’s the highest number probably. We’ve been successful in getting various types of cancers and/or leukemias service connected secondary to the burn pits, some autoimmune diseases and obviously, we haven’t won every single case, we still have a number of them. We haven’t ultimately lost one in the long run and so that’s good signs there. A lot of them have not been decided in a final phase yet, so we can’t really include the gamut of disabilities that we’ve seen among those that we’ve won. But I don’t think science can tell us the overarching number of disabilities that could be attributed to these burn pits just yet.
Robert: Again, this is Robert Chisholm and Kerry Baker from Chisholm Chisholm & Kilpatrick. We’re talking today about the burn pits and if you have any questions please reach out to us on Facebook and we’ll try and answer them as best we can. Sort of the last topic I wanted to cover on the burn pits is, and this is a little bit complicated, so let’s go slowly. What is the relationship if any between sort of the chemicals in Agent Orange that led to VA creating all these presumptive diseases and the potential chemicals in the air as a result of the burn pits? Is there a relationship there or are some of those same toxins and chemicals in both byproducts if you will? If that’s the right way to ask the question.
Kerry: Yes. They are the same in some respects and to kind of go from the basics here, what Robert is asking about are what were the chemicals in the herbicides used in Vietnam? The infamous one is Agent Orange. There were others that we really don’t need to get into. Agent Orange was contaminated with dioxin. Now there are numerous dioxins that exist. The one- and there were more than one in Agent Orange but the infamous one is 2,3,7,8 TCDD or Trichlora– you know what, I’m not going to try to pronounce it.
Robert: The letters are TCDD.
Kerry: TCDD, and that is the most potent of all of the dioxins. VA has listed that particular dioxin in its regulations as a herbicide agent that invokes the presumption of service connection for the diseases related to Agent Orange for Vietnam veterans.
Robert: All right. So, is TCDD also in- a byproduct of some of the things that they were burning in the burn pits?
Kerry: It is. One of the dioxins out of the many that they detected around the burn pits was TCDD, the very same one that was in Agent Orange. When you’re burning plastics and things like that together, it was a combustion byproduct of the production of the herbicides in Agent Orange. It’s a combustion byproduct of burning the wrong things in an open-air burn pit. So, the relationship is well known and, well I’ll just leave it at that and let you ask your next question if you have it.
Robert: So, it’s possible then that veterans that were exposed to burn pits, could experience unfortunately or could develop disabilities similar to veterans who were exposed to Agent Orange, and that’s really what we’re seeing at the end of the day?
Kerry: Right. In my opinion, they should be afforded the same legal presumptions of service connection for the diseases that are identical to those in the list for Vietnam veterans because they were exposed to one of the identical agents that VA has already acknowledged causes those diseases. So we’ll take lung cancer, for example. If you’re a Vietnam veteran that served in country in Vietnam, the law concedes you were exposed to Agent Orange. By doing that, the law concedes you were exposed to the things in Agent Orange, one of them being TCDD. That veteran is going to automatically get service connection for his lung cancer if he files a claim. We think the same thing should apply to burn pit victims with the same disabilities. Now, the law–
Robert: VA doesn’t think that yet.
Kerry: They do not think that yet but the facts and the law when put together make a very logical conclusion that that’s how the law should work. Now, there’s not going to be a legal presumption that a veteran was exposed to TCDD like there is in Vietnam, but it’s a relatively low threshold for VA to consider somebody exposed to burn pits if they were in Iraq and Afghanistan. They already know that burn pits produced the TCDD dioxin that was in Agent Orange. So, that veteran with the lung cancer or any of the other cancers related to Vietnam service should be presumptive to Iraq and Afghanistan service as well.
Robert: So, one of the things that that makes me think about is the political battle to get these presumptive conditions for Agent Orange, and that process took decades literally.
Robert: We don’t want that to happen for veterans of Iraq and Afghanistan, and we’re doing everything we can to push that and they should reach out to their congressmen and senators about this issue.
Kerry: I couldn’t agree more, and we, for the cases that we have that fall into that category, we are making very strong arguments on the link between those two. And demanding that those particular veterans get presumptive service connection. We don’t have a final ruling on any of those yet, but it’s ultimately a matter of time before we will.
Robert: Yep. Do we have any more questions? Kerry, do you have any final comments that you wanted to offer before we sign off today?
Kerry: I would say if you were exposed to burn pits and you think you have a disability potentially related to them, don’t wait around, file your claim with the VA. None of us know the long-term resolution of the laws surrounding this topic. VA could create rules down the road and make them retroactive, they might not. It’s hard to tell but filing a claim now could certainly benefit you later. One, you could get granted. Two, if it’s not granted and they do change rules down the road, it’s going to benefit you. Three, if you file a claim and get denied, seek professional help–
Robert: And appeal.
Kerry: –and appeal.
Robert: Definitely appeal.
Kerry: There’s a lot of good people out there, but find people that really know how to litigate these burn pit cases because they’re not the easiest ones out there.
Robert: With that, Kerry thank you. Again, I wanted to say that we’re going to put up the Dr. Cassano video probably Monday or Tuesday, so check back at cck-law.com. This is Robert Chisholm and Kerry Baker signing off, thank you very much.