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Burn Pits and VA Disability Benefits

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Jenna Zellmer: Welcome to CCK Live. My name is Jenna Zellmer and joining me today are Kathleen Smith and Lindy Nash. The three of us represent veterans before the agency of VA and also before the court of CAVC. Today, we’re going to be talking about burn pits. You may notice that we are all working remotely still, due to COVID, and we are looking forward to having a good conversation with you. Please feel free to leave a message or comment or question below and we’ll do our best to answer it. You can also find more information on our website at ck-law.com. So, let’s get right into it. Lindy, what exactly are burn pits?

Lindy Nash: Yes. Burn pits are exactly what they sound like. They were giant holes essentially, that were dug into the ground and used as a means of waste disposal on American military bases. And so, all sorts of things were thrown in there, to be disposed of and they were often ignited by jet fuel. They kind of came about because getting rid of waste was a huge problem for troops overseas. They had established these pretty large military bases in locations that had no infrastructure for proper disposal or maybe their existing sanitation service had been ruined by combat. They were dealing with this issue and had no other way to dispose of waste. So, they decided to burn it by putting these really large holes in the ground and literally, throwing everything in there. Typically, they were created during Operation Iraqi Freedom and Operation Enduring Freedom, which was between 2001 and 2012, mostly in Iraq, Afghanistan, Djibouti, a few other locations, like Kuwait and Somalia. There’s a bunch of different locations that have been reported. The largest one was in Iraq on Joint Base Balad and it expand about 20 acres at its peak. So, you can only imagine how large that was and how the fumes coming from that were extremely strong. They could be really large at times.

Jenna: Great, and you have mentioned they kind of burned everything that they needed to get rid of so, that includes, normal what you would think of as like trash. What else was burned in them?

Lindy:Yes. So, really, a lot. Everything from medical and human waste to abandoned vehicles, batteries, electronics, paint, chemicals, pesticide, drums, styrofoam, the list goes on and on. So, really, pretty much everything was thrown into these pits to be disposed of. Some clients of mine have explained that these pits were constantly smoking, there was fumes constantly coming out of them. It smelled terrible, like really, really bad smell and you could often not escape the fumes and the smell, and sometimes even troops living and eating quarters were nearby. They really imagine eating and sleeping and dealing with those kind of toxic fumes. So, anyway, really everything was thrown in there.

Jenna: Yes. I think, you mentioned toxic fumes and I think, that’s really what kind of displays or demonstrates what, why we are interested in burn pits, right? Because it’s not just these veterans were experiencing this when they were in these camps, but they are continuing to have potential disabilities due to those toxic fumes. What kind of toxins did these burn pits emit?

Lindy:Right. About half to two-thirds of the individual chemicals that were found in burn pits are known as Group A human carcinogens and some other toxins in there include a particulate matter, benzene and a dioxin known as TCDD. The long name for that, I’ll try to pronounce, Tetrachlorodibenzodioxin, otherwise known as TCDD. So, let’s just call that TCDD. The interesting thing is that TCDD is an extremely toxic toxin found in burn pits and in Agent Orange. And so, if you look at 38 CFR 3.307 A6 which lists diseases that are associated with exposure to herbicides, it actually defines herbicide agents specifically, as its contaminant TCDD. In a way, there’s acknowledgement that TCDD which is found in burn pits is also found in Agent Orange. Here at CCK, sometimes we’ve talked about making arguments saying that maybe, if you were having a certain disability and exposed to a burn pit then, you could be treated similarly to someone who’s been exposed to Agent Orange. That’s something we’ve been thinking about.

Jenna: Thanks. I think, that’s a really good point because we’ve had a lot of CCK labs. We have a lot of information on our website about Agent Orange and specifically, about presumptions that come for veterans who were exposed to Agent Orange and primarily, Vietnam. If you’re interested in Agent Orange or presumptive service connection, please check out our website, check out the other videos that we have done. But that kind of raises a question, Kathleen. So, veterans who are exposed to Agent Orange are entitled perhaps, depending on what disability they have to presumptive service connection. Are there any presumptions for veterans who were exposed to burn pits?

Kathleen Smith: At this time, there is no presumptive or presumption for exposure to burn pits. The VA does not presume that service connection will be granted for these diseases related to the burn pits. The service connection for exposure to burn pits must still be established on a direct facts found basis, which means that the veteran is going to need to provide some sort of evidence that they were exposed to burn pits during their service and then additionally, medical nexus linking the condition to the exposure during service.

Jenna: I can imagine that both of those two elements would be difficult to prove. We’ll get into that a little bit later about kind of how veterans can go about demonstrating one, that they are exposed to these toxins due to burn pits, and two, that their current disability is related to those toxins. But it is interesting to note like, Lindy had mentioned before that the same chemical has found both in burn pit, burn pit exposure and Agent Orange exposure. And so, a veteran who was exposed to the same thing may be treated differently based on where he obtains that exposure, which is a little bit concerning. But Kathleen, does VA kind of recognize that burn pit exposure, that this toxin can pose long-term health risks?

Lindy:Unfortunately, they do not at this time. The VA claims that research does not show evidence of long-term health problems resulting from exposure to burn pits while they do admit that there is evidence of some short-term disabilities such as skin irritations, respiratory, cardiovascular, gastrointestinal. They do admit that those short-term issues can arise, but they also declared that they are temporary and resolved as soon as the exposure is no longer there.

Jenna: Okay. So essentially, VA is saying that, if you’re in Afghanistan or in Iraq, you might have some issues while you’re exposed directly to the burn pit, but once you leave the burn pit, all that resolves. That’s definitely something that is a hurdle for us going forward and for veterans who are attempting to obtain service connection. Lindy had mentioned that burn pits were primarily used from 2001 to 2012. Are they still used today?

Lindy:Currently, most of the burn pits have been phased out. There are still nine burn pits operating in Syria, Afghanistan, and Egypt. The reason for this, the Department of Defense states that there is no feasible alternative in these locations. VA has worked on some alternative solutions such as incinerators, engineer landfills, things of that nature. Unfortunately, due to funding, lack of space, it might not always be feasible which is why they still use the burn pits in these locations and they additionally, requires skilled people such as engineers and operators for these machines to avoid serious injuries, if they’re operating correctly.

Jenna: Okay. That’s another challenge, is that they’re still happening today. If veterans are currently serving, there’s a possibility or a risk that they might be still being exposed to these toxins. It sounds like we’re moving in the right direction at least, there’s fewer burn pits in there once were, but it’s still not completely resolved. So, let’s move on. Now, that we’ve kind of talked about what burn pits are and what the dangers are to those who are exposed to burn pits. Let’s kind of get into what sort of medical conditions we, VA hasn’t conceded are due to but we’ve seen veterans be exposed to burn pits end up having. So, Lindy.

Lindy:Yes. Like Jenna said, we’ve seen a wide variety of different conditions that VA ends up granting service connection for due to burn pit exposure. But some of the most frequent ones would probably be autoimmune disorders. That would be something like Parkinson’s or lupus, we’ve seen glioblastomas which is a brain cancer, respiratory conditions and cancers around the lungs. Imagine breathing in all those toxins and heavy fumes, it’s not surprising that you would develop some sort of respiratory condition. Respiratory conditions like COPD, asthma, lung cancer, constructive bronchiolitis. Those are pretty frequent. Also, different forms of cancer. We’ve seen bladder cancer, kidney, prostate, leukemia, forms of heart disease like ischemic and coronary artery disease, different forms revolving cardio issues, diabetes even and many of the same conditions caused by exposure to Agent Orange. So, as we’ve talked about a couple minutes ago, a lot of the conditions that are often thought of to be associated with Agent Orange can be linked to burn pit exposure because that TCDD dioxin has been found in both. Sometimes those overlap. However, this list is not exhaustive. What I just said, even if you don’t have one of those conditions, it doesn’t mean you cannot get service connection due to burn pits. Like I said, not an exhaustive list. You should definitely check out our website, www.cck-law.com. We have a really great blog and a lot of other awesome resources there that talked about all sorts of different conditions that can be linked to burn pit exposure.

Jenna: Great. Yes. I think, it’s important to note that, if you, as a veteran were exposed to burn pits and you have some disability now, it’s definitely worth looking into at least. Like Lindy said, this isn’t exhaustive. There is new research coming out all the time about kind of what these chemicals can cause later on in life. It’s definitely an ever evolving field. It’s really important, I think, that if you have something like this that you reach out to your veteran service representative or your attorney, who ever you have helping you because this is definitely a complicated area of both law and science. None of us are scientists. This is just kind of what we have researched and what we’ve seen from our time representative veterans who have been exposed to burn pits. Another thing that I think, is really important to note is, as Lindy mentioned, a lot of these burn pits were in Iraq and Afghanistan and it was between 2001 and 2012. Thinking about that geographic location, I also think about Gulf War illness, Persian Gulf War undiagnosed illnesses, medically unexplained chronic multi-symptom illnesses which we call mock me. We have a lot of information on our website about those illnesses, but Kathleen, can you kind of summarize the difference between PGW and burn pit claims?

Kathleen: Yes. This is one that is commonly mixed up a little bit because the exposures, the time period and locations due in some certain circumstances overlap. It can be sometimes, you have to differentiate between which exposure it would be. That claims from a Gulf War illness are considered under the VA’s Persian Gulf War regulations that recognizes certain conditions or types of conditions due to environmental exposures in the Persian Gulf. This is beginning August 1990 and it actually, extends through December 2025. As we discussed earlier, the burn pits, they were not being used until primarily, until after 9/11. With Persian Gulf War veterans, they’re exposed to a number of different hazardous toxins. Some of them including oil well fires, nerve gas, insecticides, pesticides, flea collars, vaccinations. What’s particularly different about the Gulf War cases is that these disabilities are either undiagnosed or either the etiology or the pathophysiology of the illness is inconclusive.

Kathleen: It’s not exactly clear what caused the illness or the cluster of symptoms, but they were exposed to multiple toxins in particulate matter in the Persian Gulf. Whereas, with burn pits it is the particulate matter due to the specific burn pits. And also, with the Gulf War illness, the symptoms and conditions are typically very different where it’s a cluster of – there’s no diagnosis or there’s no explanation for it, like headaches, joint pain, fatigue. A lot of the burn pit conditions ,their cancers, their issues that are as Lindy mentioned, associated with Agent Orange because of the TCDD. So, and then, the locations of exposure different as the burn pits are primarily Iraq, Afghanistan, Djibouti. The Gulf War conditions, they cover the entire Persian Gulf which includes Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, UAE, the airspace above all these areas, the waters of the Persian Gulf, Arabian Sea, Red Sea. So, it’s a much wider area of exposure for the Gulf War.

Jenna: Great. Yes. I was going to say, it sounds like burn pits is a much narrower kind of both time period and geographic period and the types of conditions are a little bit more, I guess, in that respect with types of conditions are a little bit broader because they can include both. Kind of more mysterious to conditions and diagnose conditions. Whereas, Gulf War, you can have a diagnosed condition but it needs to have an unclear etiology or pathophysiology. One thing I wanted to highlight is that Persian Gulf War presumption does not include Afghanistan. That’s the one other thing between burn pits which can include veterans who served in Afghanistan.
Unfortunately, Southwest Asia does not include Afghanistan according to VA, when they’re considering Persian Gulf War illness, so it’s really complicated. Like I said earlier, I think there’s definitely a possibility that you could have served in the Persian Gulf and be entitled to both the presumption under the PGW regs and have a potential burn pit claim. It kind of just depends on where you served and when. That’s why it’s really important to make sure that you are seeking help from somebody who has a real good grasp of these regulations in this area of the law. So, Lindy, why exactly are burn pit claims so difficult to prove? We’ve talked a lot about all the scientific issues that are involved and talked about kind of the complication of the regs, but can we kind of like narrow it down? And what is the essence, why is it difficult to prove of burn pit claim?

Lindy:Yes. I think, there’s a couple factors here. But to start things off like Kathleen said a couple minutes ago, VA has yet to admit that exposure to burn pits causes long-term health issues. In my experience, it’s not an open and shut case when you’re dealing with a burn pit exposure situation. It’s not enough to just say, I have this condition and I was exposed to a burn pit. VA needs more than that. So often, VA doesn’t have a way of proving whether a veteran was actually exposed to a burn pit or not. That can be a struggle. It’s great to submit a lay statement or maybe something from a friend but they really seek proof that you were exposed to a burn pit during a certain period of time on a certain base. That’s often one hurdle. Also, like, we’ve talked about there’s no presumption. Kind of like what I was just saying, it’s not as if you are, you step foot in Vietnam and you were automatically, excuse me, presumed exposed to Agent Orange. It doesn’t work like that. So, that’s another hurdle. There’s a wide range of conditions, like we talked about a couple minutes ago. There’s a lot of different things that can be caused by burn pit exposure, so that can often be a good and bad thing. And then lastly, the adjudicators are not always properly trained and similarly, the VA examiners are not often trained properly in burn pit exposure. That can cause a lot of hurdles in terms of not – inadequate examination, may be the law is not discussed properly and your rating decision that can lead to a lot of issues in burn pit cases. With all those factors coming together, burn pit exposure and showing that your condition is due to your burn pit exposure can often be a rocky road.

Jenna: Great. Lindy, referenced briefly lay evidence. So Kathleen, I think, lay evidence is really important. How can veterans use lay evidence and maybe medical evidence to improve their burn pit claims?

Kathleen: Yes. Lay evidence, very, very important for these cases. A lot of the times, we’ll have our veterans submit affidavits where they describe where their living quarters were in proximity to the burn pits on the base. By describing their day-to-day activities, whether or not they had any contact specifically with the burn pit. Although, it’s not required because they are close enough to it. Buddy statements where you could ask somebody that you served with, who also saw these burn pits. He can submit a statement for you corroborating your statement that you were exposed to these. It’s super helpful additionally, like Lindy had mentioned going to the examinations and the examiners aren’t always fully educated on exposure to burn pits and so often, veterans might bring some medical research, medical literature associating with condition that they have to the exposures that they were supposed to in service. Also, getting a medical opinion from your own doctor. You’re not limited to VA examinations. An opinion from your own doctor, you would want it to include the language that is at least, as likely as not that the exposure is linked to the condition you have. But the lay evidence is very important. It helps paint the picture. Obviously, any pictures, any actual pictures of the base and where you were, that’s very easy to prove.

Jenna: Great. Yes. I think, two things that I would add to that, is that first for the medical opinion. I think, that’s such a good point that you can get your own doctor to read an opinion. They obviously, know you a little bit more than a VA examiner who was just there to issue an opinion. We have a lot of CCK Live videos about going to VA exams and how to prove your claims through lay evidence in your own medical evidence. I would definitely encourage you to check those out. But one thing I would notice that, if you do get an opinion from your private physician, definitely, make sure that they don’t just include that at least, as likely, as not language, which is really important. But also, to provide an explanation for why they’ve reached that opinion. That’s really important, because if they only have that one sentence that it’s as likely, is not that your condition is due to burn pit exposures. VA is most likely going to say that there is no rationale supporting that opinion. They’re probably going to rely on their own expert opinion, which frankly is likely going to be negative. That is one thing to know, and like I said, you should definitely check out all of our other videos and blog posts about how to submit evidence to support your claim.

Jenna: The other thing that I think is really important is when you’re submitting lay statements, I think part of the reason why VA, maybe doesn’t recognize presumption is because burn pits are so dependent on what was burned in them and they can change from day to day, right? As we mentioned before, a lot of burn pits have been found to emit TCDD, but I think a lot of that depends on were they burning plastic or styrofoam that day or where they were burning waste that day. And so, because the toxins change, having being able to demonstrate not only that you were close but also what you saw being burned in the burn pit, is probably going to be super helpful. Because then, you can kind of make that link to whatever conditions you have and whatever toxins were burned or were emitted from the burning of those objects. The other thing that I wanted to mention is that VA encourages veterans to enroll in a burn pit registry. Currently, about 200,000 veterans have signed up. This is really just for VA’s own research about kind of what the potential health impacts have arisen.

Jenna: As we mentioned before, VA doesn’t necessarily recognize long-term health issues at the moment, but this is kind of helping the VA track those potential health impacts. Any veterans who served after 9/11 in Operation Enduring Freedom, Operation Iraqi Freedom, Operation New Dawn or 1990 to 1991 Gulf War veterans, they can also sign up. If you did serve in any of those times or if you feel like you were exposed to burn pits and you have some long lasting health impacts from that, definitely, check out VA’s website. Enroll in the burn pit registry, it’s not necessarily going to automatically, it’s not definitely not going to automatically entitle you to any sort of presumption, but it’s definitely, something that hopefully, we can educate VA about. In the future, VA might be able to use that information to help future veterans. So, Kathleen and Lindy, do you guys have any final thoughts on burn pits?

Lindy:I would just reiterate what Kathleen said, don’t be afraid to submit lay statements from yourself, from friends, pictures, anything that can really prove where you were, what you were doing, your proximity. That is all super important. Don’t be afraid to get a private opinion, as Jenna said, it’s probably going to work out better for you, if you just seek your own opinion rather than waiting for VA to give you a favorable one. Yes, burn pits are a huge issue and just in reading research and preparing for this CCK Live, one of our US senators was saying that burn pits are the Agent Orange of our generation. It’s not going away and a lot of veterans are dealing with serious issues. Don’t back down and submit everything you have and hopefully, it will work out.

Jenna: Thanks Lindy. Thanks everyone for joining us and we will see you next week.