Burn Pits: How to prove your VA claim
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.
Robert: Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me is Kerry Baker, also from Chisholm Chisholm & Kilpatrick. We’re gonna talk today about burn pits. Kerry, in general terms, can you tell me what a burn pit was and what it was used for?
Kerry: So, post 9/11 and in the wars of Iraq and Afghanistan, the military contracted with various contractors for waste disposal. And so, initially their decision was to dispose of waste they produced whatever it may be, in large burn pits. So a burn pit is essentially a very large pit if you will, some weren’t technically pits, where all of the base’s waste would be disposed of through burning. It is not– you may ask me this but, it is not a 55 gallon barrel burning things like human waste, we’re talking of a pit on a much larger scale.
Robert: We’re talking about an open fire…
Kerry: An open fire.
Robert: How large were these would you say?
Kerry: The largest one at its peak was approximately 20 acres and that was the one in Balad. Most reports have it at 10 acres but in actuality at its peak, it was closer to 20 acres.
Robert: So, you’re saying 20 acres of land was used to burn the waste of that particular location.
Kerry: That is correct. That doesn’t mean 20 acres was on fire. The fire could be in the center of it. But the fire could be the size of a city block when you’re talking a pit that’s got trash covering 20 acres. There could be more than one fire location within that 20 acres, it could be three or four different smoke plumes coming up.
Robert: And were these burn pits co-located with the different sites where troops are stationed?
Kerry: Yes. There was a burn pit at generally every operating base in Iraq and Afghanistan. Some were obviously smaller than others, depending on the size of the base. But generally, there were burn pits in every forward operating base in Iraq and Afghanistan.
Robert: So, if you were stationed out at one of these sites, were you exposed to the smoke from them, from the burn pits?
Kerry: You were most likely exposed to the smoke because of the size of some of these and proximity to the bases. Many were on the bases within the wire because that’s how the wire was, it was just too dangerous. Everyone was exposed to the smoke at varying levels depending on atmospheric conditions, your proximity, your living quarters, your work areas to the burn pits, but everyone was exposed.
Robert: And how long did the military use these contractors to dispose of waste through these burn pits? From what period of time?
Kerry: All throughout the war. In Iraq, all the way through 2009, 2010. In Afghanistan there are some still being used but for the majority of all operations in Iraq and Afghanistan burn pits were used throughout the wars.
Robert: So what kinds of disabilities, diseases, are you seeing, are the veterans community seeing as a result of being exposed to burn pits?
Kerry: It runs a large range of disabilities. A whole lot of pulmonary disabilities, things like constrictive bronchiolitis, which is a rare fibrotic lung disease of the small airways of the lungs. It’s rare– most of the people that have it, they have it because of inhalation exposures.
Robert: So, respiratory breathing type problems?
Kerry: Respiratory problems, autoimmune problems, we’ve seen a whole rash of various types of cancers. In fact, I don’t believe we know the limit, simply because of the synergistic effects of various chemicals people are exposed to all at once. The sensitivity that some people have more than others…
Robert: Can I stop you right there?
Robert: Because you said something important I think. And that is, the synergistic effects, I can’t say that word well, the synergistic effects of the different chemicals. Some of those chemicals that were released into the air are similar, if not the exact same exposure that Agent Orange causes, isn’t that correct?
Kerry: That is correct. The actual herbicide Agent Orange was 50/50 mixture of herbicide called 2,4-D and 2,4,5-T. The herbicide 2,4,5-T was contaminated with dioxin. Now, there are multiple dioxins, some more potent than others. But the dioxin that was contaminated in Agent Orange, that particular herbicide was 2,3,7,8 TCDD. That’s the short acronym for it, it actually stands for Tetrachlorodibenzo-P-dioxin. It is the most potent dioxin on the planet, in fact all other dioxins and similar chemicals are measured in their potency compared to that one. So that one is the base as the most toxic.
Robert: All right, if I can stop you right there, you are now talking– this dioxin that you’re talking about was clearly in Agent Orange?
Kerry: That is correct.
Robert: How does that relate to the things that were released through the burn pits?
Kerry: Because that dioxin is a combustion byproduct as most dioxins are. And it was released or it was contained in Agent Orange because of a combustion problem in the making of Agent Orange. So when you burn certain items that can produce dioxins and certain mixtures can produce that particular dioxin. Items in the burn pits were a perfect mix of chemicals that released TCDD into the air in Iraq and Afghanistan. So, yes, to answer your question; in the short version, the exact same dioxin that was in Agent Orange was released by the burn pits but along with dozens if not hundreds of other chemicals as well.
Robert: That’s really shocking Kerry because we knew at the time they were– from Agent Orange exposure that different cancers and things that the VA considers presumptive diseases, yet we’re continuing to expose our troops, our veterans to these chemicals in Iraq and Afghanistan.
Kerry: It’s absolutely shocking. Probably half to two thirds of the individual chemicals that they measured from the burn pits are known human carcinogens, class A human carcinogens, things like benzene. Benzenes, as you know, is known to produce various leukemias and other disabilities, and the list is long, I can’t name obviously all the list just sitting here. But you’ve got dozens of carcinogenic compounds released from those burn pits.
Robert: I want to switch gears for a moment here and talk about how these exposures to the burn pits, how veterans now are being treated by the VA when they make a claim for a medical condition as a result from the burn pits. What are you seeing in those claims and how is the VA adjudicating them?
Kerry: The VA is adjudicating them poorly is probably an understatement.
Robert: Are they doing it, first of all, a case-by-case basis right now?
Kerry: Correct, they are doing it on a case-by-case basis. There’s no presumptions in place for any of these diseases that the veterans may be getting. That makes the situation worst, the fact that they’re doing it on a case-by-case basis.
Robert: Similar to what they did in the Agent Orange in the early years, where a veteran would have to say, “I was actually exposed to this much Agent Orange, therefore I have this condition.” Does that mean a veteran coming in today has to say, “I was next to this burn pit, I was constantly exposed and this is why I have the condition,” whether it’s a cancer, a diabetes, a constrictive lung disease, whatever it is?
Kerry: Correct. With any exposure related disease VA is gonna want to establish exposure to whatever toxins you are claiming you were exposed to. Historically, they’re not going to take somebody’s word that they were exposed unless there is a legal presumption of exposure, here, because there’s no regulations or statues on this, there’s no legal presumption of exposure. But VA does have policy document out there, that basically tell VA adjudicators to concede exposure if a veteran was in Iraq and Afghanistan and says they were near to some of these burn pits. Because you’re not going to have evidence in the claim file and in the personal service records, 99% of the time it says, they were a hundred yards from a burn pit, 50 yards from a burn pit, it’s not going to happen. So, that’s the one thing VA does right in this scenario. It’s pretty easy to get VA to concede the exposure.
Robert: So, how does a veteran prove the claim that they have the exposure conceded but how do they prove their medical condition is related to the burn pits?
Kerry: Well, I said that the one easy part is for VA to concede the exposure. In my opinion, the easy part stops there. The rest of it is extremely difficult next to impossible in some cases. Once a veteran establishes that exposure and shows VA that he or she may be suffering from a disease there has to be a relationship between that disease and the exposure. And that relationship has to be usually in the form of a medical opinion, a very good medical opinion, there’s reasons for that. And that may obviously, that’s going to be the factor that’s going to drive service connection for that veteran. Without that medical link, odds are, the veteran is never gonna get service connected for that disability.
Robert: Is the VA, when they do a medical examination, connecting disabilities to the burn pit exposures?
Kerry: Very, very rarely.
Robert: So, what can a veteran do in that situation?
Kerry: In my opinion, they have to get their physicians to understand what the exposures were. So, for example, there’s training letters and documents out there on the burn pits, their physician needs to be educated as to what the exposures were. Understand the diseases that they have and be able to relate those two in a medical opinion. And I say, understand that the exposure is more than an examiner simply saying, “I believe it is as likely as not that this person’s leukemia or breathing problems or whatever it may be is related to burn pits.” Explain what the exposures were in the burn pits and how those particular elements or toxins are a factor in the development of that specific disease. That’s the best way to go about doing it, to really prevail in a claim.
Robert: So, our law firm, Chisholm Chisholm & Kilpatrick has a few experts that have helped us out in this way, correct?
Kerry: We do, yes.
Robert: We are actually winning claims before the VA that have initially been denied with these expert reports?
Kerry: That is correct. In fact, we haven’t lost one yet. We haven’t won them all because some are obviously still in the appellate process. But we haven’t come to a final decision where we have lost any of them yet. So, thus far, our track record is very good on these, but it’s still a difficult and still a very lengthy process.
Robert: Kerry, why does the VA keep getting these cases wrong? These burn pit exposure cases?
Kerry: In my opinion, there’s a range of reasons for that. So, veteran comes in, files a claim, says he was exposed. The first thing VA does is they have to develop these claims in certain ways. They have training materials that tell them to obtain an examination from a physician and explain to that physician what the exposures were. First of all, they rarely do that. A lot of times the adjudicator will get the development instructions mixed up with other periods of war or other types of claims, such as Gulf War related claims, which are not the same as burn pit related claims. There is some overlap there but they are two distinct types of claims. When they don’t do that, the claim gets damaged detrimentally, it’s very damaging to the claim right from the get go. Other times when they do the correct development, they are sending these claims to an examiner who has no training whatsoever as to what these burn pits are. They may know a little about Gulf War type claims but not burn pit related claims. Not claims specific to operations in Iraq, Iraqi Freedom or Enduring Freedom in Afghanistan.
Robert: So, Kerry, are the raters given any flexibility in how they decide these claims, and the raters are the people that work at the VA and make sort of the initial decisions. What kind of flexibility are they given when it comes to burn pit cases?
Kerry: That’s a very interesting question. The law gives them flexibility to evaluate evidence and decide cases, the law gives them that flexibility. But for years now, the structure of VA and its claims process has taken away a lot of that flexibility. So, one of the problems we discussed in the various training problems with the examiners and the raters same thing here. Raters do not evaluate evidence much anymore, they don’t evaluate the exposure, they don’t evaluate the medical evidence. They rely on being told that it’s okay to grant this benefit or told that it’s not. And if they are not told that it’s okay to grant, a lot of times, they deny that benefit. Because they’ll provide reasons such as, VA has not established the relationship between this exposure and this disease. What they are looking for there is a presumption. The whole community is up in arms because there are no presumptions, VA raters won’t grant a lot of these things because there’s no presumptions but what they’re missing there, is they’re not evaluating the evidence and applying the law, they’re not thinking. They want other people to do their thinking for them and that ends up hurting the claim and ending up in a denial.
Robert: Are there any other thoughts that you would like to share with our audience about burn pits?
Kerry: I would say that if you’re a veteran from Iraq or Afghanistan and you know something is wrong physically, you don’t know what it is or maybe you do know what it is, don’t assume. Maybe you’ve been out of the military for a while, don’t assume that you’re just having bad luck. Like I said, we don’t know what all of these exposures are going to lead to five years from now or 10 years from now, 30 years from now. The face of VA law changes, it’s changed with Agent Orange, it’s changed with Gulf War issues, changes all the time. If you think you are sick because your exposures to these elements, you need to file a claim and you need to pursue it and you need to appeal it if they deny it. Even if you don’t prevail the first try, we don’t know what’s going to change in the future that could end up helping that veteran or potentially that veteran’s surroundings down the road. So, file the claim, appeal the claim, if denied, seek help from people like us or somebody else you trust that knows how to work these claims. So, that would be my advice to everybody.
Robert: Thank you very much. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick and Kerry Baker from Chisholm Chisholm & Kilpatrick.
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