Getting Veterans (VA) Disability for Burn Pits
If you served in Iraq and/or Afghanistan during Operations New Dawn/Iraqi Freedom/Enduring Freedom, or on the Horn of Africa on or after September 11, 2001, you may have been exposed to burn pits.
These large, open-air burn pits released toxins into the air that research has suggested could cause or contribute to certain medical conditions. Because this research is so limited, receiving a grant for veterans (VA) disability for burn pits can be difficult.
However, a skilled VA disability attorney can help. The attorneys at Chisholm Chisholm & Kilpatrick LTD have dedicated our careers to helping veterans just like you recover disability benefits. We can put our experience to work for you.
Call our office today for a free consultation: 401-331-6300.
What Are Burn Pits?
Burn pits were used throughout the post-9/11 era during Operations Iraqi and Enduring Freedom, with some still being used in a limited fashion in Afghanistan today. These burn pits were very large, open-air fire pits in which the military and its contractors disposed of all waste generated at military installments.
Among the materials burned were plastics, entire vehicles, medical waste, rubber, chemical drums, and aluminum. The sizes of these burn pits varied depending on the size of the base they were serving. The largest burn pit, located at Joint Base Balad, spanned over 25 acres of land when it was at its largest.
Because of their open-air setup, burn pits potentially facilitated the spread of airborne pollutants and carcinogens. Compounded with the already high levels of dust and pollutants in the air, exposure to burn pits, in the view of some health experts, can lead to respiratory, cardiovascular, skin, and other medical conditions.
What Toxins Were Released from Burn Pits?
A range of toxins including hydrocarbons, volatile organic compounds, dioxins, and furans were released into the air from these burn pits. The toxins released by the burn pits vary per military installment as it is unknown exactly what was being burned at each location at a given time.
Air samples have been collected and tested by the Department of Defense, however, some of these results are still classified. The declassified air testing results show harmful levels of chemicals in ambient air, which is the air not directly within the stream of the smoke. There is currently no way of knowing exactly which chemicals, or the levels of these chemicals, veterans working directly with the burn pits or veterans living within the stream of the smoke were exposed to due to a lack air of testing in these areas.
Furthermore, due to their open-air setup, burn pits potentially facilitated the spread of airborne pollutants and carcinogens. Compounded by the already high levels of dust and pollutants in the air, exposure to burn pits can lead to respiratory, cardiovascular, skin, and other medical conditions (see section “Burn Pits and Associated Medical Conditions”).
Agent Orange and Burn Pits
The ambient air samples tested by the DoD revealed that some of the harmful chemicals in Agent Orange, a powerful defoliant used during the Vietnam War, were also found in the air surrounding burn pits in Iraq and Afghanistan. Among these chemicals was 2, 3, 7, 8-TCDD, the most potent of all dioxins. This dioxin is listed in VA’s regulations as an herbicide agent that provokes the presumption of service connection for the diseases related to Agent Orange. It is possible that veterans exposed to burn pits may develop many of the same health conditions caused by exposure to Agent Orange.
TCDD was found to be present in the air with both Agent Orange and burn pits; however, unlike with Agent Orange, TCDD was released along with dozens of other chemicals from burn pits. About two-thirds of the individual chemicals found in burn pits are known as Class A human carcinogens (i.e., cancer-causing substance). For example, researchers detected significant levels of benzene, which is known to produce various types of leukemia and other disabilities.
The Burn Pit Registry
Created by an act of Congress, the Burn Pit Registry provides veterans with a way to document their exposure to burn pits and report heath concerns thought to be a result of this exposure. As of April 2018, nearly 135,000 veterans and service members have taken part in the registry. The purpose of creating the registry was to gather information from those exposed in an effort to better determine the effects such exposure may present. Unfortunately, this database does not provide the scientific community with enough evidence to draw any precise conclusions.
Burn Pits and Associated Medical Conditions
Although no presumption exists, some medical conditions can be linked to exposure to burn pits. Scientists are unable to provide us with a definitive list of potential health effects stemming from burn pit exposure, however, some commonly reported conditions include:
- Autoimmune disorders (e.g., Lupus)
- Bladder cancer
- Chronic B-Cell leukemias
- Constrictive bronchiolitis
- Diabetes mellitus type 2
- Hodgkin’s disease
- Ischemic heart disease
- Lung cancer and other respiratory cancers
- Multiple myeloma
- Non-Hodgkin’s lymphoma
- Parkinson’s disease
- Prostate cancer
Unfortunately, medical experts may not yet know the extent of the harm caused by 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. Experts are also unaware of 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.
How Does VA Adjudicate Burn Pit Claims?
VA adjudicates burn pit claims on a case-by-case basis. Your decision is based on the facts unique to your claim. When deciding burn pit claims, VA looks for three essential elements in a veteran’s case in order to first establish direct service connection:
- The event in service, such as the exposure to burn pits;
- A diagnosed condition for which the veteran is filing a claim; and
- A medical nexus, or link, between exposure and the claimed condition.
After establishing direct service connection, veterans will be assigned a disability rating according to VA’s Schedule for Rating Disabilities depending on the condition for which they are seeking compensation.
Establishing Exposure to Burn Pits
Veterans must 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. However, VA does have a policy document for burn pits that instructs adjudicators to concede exposure if a veteran was in Iraq or Afghanistan and states that they were near a burn pit. This policy exists because, 99% of the time, there is not enough evidence in a veteran’s claims file to show that they worked 100 yards from a burn pit (i.e., the typical exposure requirement). The information in service medical and personnel records rarely includes the kind of evidence or the level of detail that would be necessary to verify exposure in this way.
Is There Presumptive Service Connection for Burn Pit Exposure?
Importantly, veterans cannot qualify for presumptive service connection as there are currently no presumptions related to burn pit exposure. Unfortunately, VA does not recognize that burn pit exposure can pose long-term health risks to veterans. Instead, VA merely acknowledges that there is evidence of some short-term disabilities such as skin irritations, respiratory, cardiovascular, and gastrointestinal conditions. However, VA maintains that such issues are temporary and resolved as soon as the exposure has ended.
Establishing a Diagnosed Medical Condition
VA requires a current diagnosis of a medical condition before it grants disability benefits. Moreover, it can be strict about the type of diagnosis that qualifies. For many conditions, the diagnosis must be from a particular type of doctor or medical professional and meet certain criteria. Veterans should be aware of the type of medical treatment typically required for their claimed condition and seek it out accordingly.
Establishing a Medical Nexus
Once VA establishes in-service exposure to burn pits, veterans must show that there is a relationship (i.e., a medical link) between the exposure and the current, diagnosed medical condition. This link is usually established through the submission of a medical opinion. Without that medical opinion, service connection is highly unlikely. Veterans must have a healthcare professional opine that their condition is “at least as likely as not” due to their burn pit exposure. Furthermore, such healthcare professionals should include an explanation for their findings.
Burn Pit Claims vs. Gulf War Illness Claims
Burn pit claims are commonly mixed up with Gulf War claims, as certain time periods and locations may overlap, and it can sometimes be difficult to differentiate between the two. However, claims for Gulf War illness are considered under VA’s Persian Gulf War regulations, which recognizes that certain conditions are due to environmental exposures present during the Gulf War. The regulations cover service beginning August 1990 and extending through December 2021. Gulf War exposures involve several different hazardous toxins, including oil well fires, nerve gas, insecticides, pesticides, flea collars, and vaccinations. Importantly, burn pits are not included. Furthermore, Gulf War conditions are either undiagnosed or the etiology or the pathophysiology of the illness is inconclusive.
Additionally, it is not exactly clear what caused Gulf War Illness, or the clusters of symptoms veterans began experiencing upon return, but it was likely due to the multiple toxins in the Persian Gulf area. On the other hand, it is clear that particulate matter and toxins come directly from the burn pits themselves. Finally, the area of exposure related to the Gulf War is much more extensive than that of burn pits.
Common Mistakes VA Makes When Adjudicating Burn Pit Claims
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 such as Gulf War Illness claims which, despite some overlap, are separate types of claims. Mistakes like these can be incredibly damaging to claims right from the start.
Other times, when VA raters do correctly develop the claims, they sending the veterans to doctors, nurses, or physician assistants who lack sufficient training on burn pits. The doctors are only 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 are ok to grant or not grant. Unless they are explicitly told to approve it, 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.
How Much Can I Receive in Monthly Benefits?
When the VA approves your claim, it assigns you a disability rating based on the severity of your condition. If you have multiple service-connected disabilities, the VA will determine your total combined disability rating. This number is between 0 and 100 percent in increments of 10 percent. The higher your rating, the greater your monthly compensation.
As of December 1st, 2020 the VA disability rate benefit amounts are as follows:
- 0 percent disability rating: $0.00 per month
- 10 percent disability rating: $144.14 per month
- 20 percent disability rating: $284.93 per month
- 30 percent disability rating: $441.35 per month
- 40 percent disability rating: $635.77 per month
- 50 percent disability rating: $905.04 per month
- 60 percent disability rating: $1,146.39 per month
- 70 percent disability rating: $1,444.71 per month
- 80 percent disability rating: $1,679.35 per month
- 90 percent disability rating: $1,887.18 per month
- 100 percent disability rating: $3,146.42 per month
Because the array of conditions that might result from burn pit exposure is so broad, it is impossible to estimate where your condition might lie on the rating scale without a consultation.
Are Burn Pits Still Used Today?
Currently, most burn pits have been phased out; however, there are still nine burn pits operating in Syria, Afghanistan, and Egypt. The Department of Defense (DoD) states that there is no feasible alternative in these locations when providing an explanation for their continued use. VA has worked on alternative solutions such as incinerators or engineer landfills, but unfortunately, such initiatives have failed due to funding, lack of space, and other limitations.
Recent Court Case Involving Civilian Contractors and Burn Pits
Civilian contractor Veronica Landry was sent to Mosul Air Force Base in Iraq while working for Kellogg Brown and Root. After Ms. Landry’s time in Iraq, she developed a severe lung disease and PTSD. After bringing her case before a U.S. Department of Labor’s Office of Workers’ Compensation judge, she was granted healthcare benefits. The judge ruled that her lung disease was a direct result of exposure to burn pits used at the military installment.
The question now is if this decision will have an impact on future burn pit claims before VA. Although this is a step in the right direction, it is unlikely that this ruling will impact veterans’ claims as no precedent has been set that VA is required to follow.
Call a VA Disability Attorney Today
If you were exposed to burn pits during your military service and now suffer from a medical condition, the attorneys at Chisholm Chisholm & Kilpatrick LTD can help you apply for benefits. One of our main areas of focus is VA disability and we will pursue your case aggressively. Call our office today for a free consultation: 401-331-6300.
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