New Burn Pit VA Presumptive Respiratory Cancers

Video Transcription

Maura Black: Hello everyone. Thank you so much for tuning in today to the Veterans Legal Lowdown. My name is Maura Black. I’m an attorney at Chisholm Chisholm and Kilpatrick. And I’m joined today by Nick Briggs, a claims agent at Chisholm Chisholm and Kilpatrick.

Today, we’re going to be discussing VA’s Proposed Changes to Presumptive Regulations. Specifically, VA is proposing to create presumptive service connection rules for rare respiratory cancers that may be related to particulate matter exposure in Southwest Asia.

We are going to talk briefly about what the new presumptions look like, what the proposals are, what we know of them so far, and we have been tracking them, although they’re not finalized yet. We’re then going to talk about the list of conditions that are going to be made presumptively related to particulate matter exposure.

And we’re also going to talk about some background information as needed as we go along, just so that everyone is on the same page about what the effect of the new rules would be for folks who do experience the type of cancers that are on this proposed list.

So, just to get us started, the Veterans Health Administration, specifically their team that works on health outcomes for military exposure matters, previously began a focused review of scientific and medical evidence related to particulate matter exposure and toxic chemicals in the air, water, and soil and the subsequent development of rare respiratory cancers among veterans who served in Southwest Asia.

Based on these findings, the VA is proposing a rule that will add presumptive service connections for these rare respiratory cancers for certain veterans. Again, we’re going to talk about eligibility requirements. And also what the types of cancers are that we’re discussing.

The proposal was officially announced on March 1st of this year, 2022. And in that proposal, VA announced its intention to add nine rare respiratory cancers to the list of presumptive service-connected disabilities for veterans who served for any period of time in the Southwest Asia Theater of Operations. All of these proposed adds to the presumptive list were announced as part of the Comprehensive and Overdue Support for Troops, or the COST of War Act of 2021, which intends to expand access to health care and disability compensation benefits for toxic exposure veterans.

So, that is a condensed amount of information, that’s kind of our roadmap though. Again, we are going to be talking about, first, what is presumptive service connection? So, that we all understand the import of the terms that were talking about. What are the types of cancers that have been proposed to be presumed to be particulate matter exposure in Southwest Asia? And then, finally, how do you meet the requirements? So, where do you have to have served at what time to meet the requirements for these new presumptions?

Nick, can you please talk to us about just an overview, what is a presumptive service connection? So that folks are aware of the impact of these proposed rules.

Nick Briggs: Absolutely. Thanks, Maura. So VA presumes service connection for certain conditions based on the time and location of the veterans’ service. The reason for that being is it’s often hard for veterans to prove specific environmental exposures, but we know based on where they were and when they were serving that they were likely exposed even if we can’t prevent it.

So, with that in mind, the intention of these presumptions is just to make it easier for veterans to secure disability compensation. When then otherwise may have a difficult time proving something that we generally know occurred anyway.

So, because of these presumptions, the regulations tend to eliminate the need for veterans to provide a nexus opinion. They simply need to show that they were serving at a certain place at a certain time and that they’ve since developed a specific diagnosed condition. And once those two factors are met the link between the two is presumed.

So, in this particular case that we’re going over today, the presumptive service connection is going to be related to chemical exposures and particulate matter exposure in the Southwest Asia Theater of Operations. So, when we’re talking about these conditions, we’re talking about veterans who have served in the Gulf War era.

Maura: Okay, important information, I think because we talk sometimes in the context of presumptions. We talk about presumptions of exposure and also presumptions of a link between a certain exposure and the development of a disability. So, although both concepts are kind of in play today, the primary focus is really that VA’s proposals would presume or concede or acknowledge a link between the cancers that are on this list and the types of exposures that you mention, Nick, that a veteran would have experienced during their service.

And again, we are going to talk about qualifying details later. So, where do you have to have served and at what time, so that you can understand whether you are entitled to the presumption of exposure to the toxic chemicals that are known to cause these cancers?

So, we are going to now go through the list of the types of cancers that VA has put on this list. So, nine respiratory cancers have been proposed by the VA, to be presumed, to be associated with particulate matter and toxic chemical exposure in Southwest Asia. I’m just going to list them. They’re kind of lengthy names, so please bear with me for a minute.

The first one is squamous cell carcinoma of the larynx, also squamous cell carcinoma of the trachea, adenocarcinoma of the trachea, salivary gland type tumors of the trachea, which are very rare tracheal tumors, and they comprise less than 0.1 percent of respiratory tract cancers. Nevertheless, those are on the list.

Adenosquamous carcinoma of the lung, which is also a relatively rare subtype of non-small cell lung cancer. Large cell carcinoma of the lung, salivary gland type tumors of the lung, which are also uncommon lung conditions. Sarcomatoid carcinoma of the lung, and typical and atypical carcinoid of the lung. The last is carcinoid tumors which often grow more slowly than other types of cancers.

So, as you can see, these are all affecting sort of respiratory type body parts that are implicated by this type of exposure. Sort of dovetailing the research and the presumptions that were introduced not too long ago for asthma, rhinitis, and sinusitis. But these are a whole different list of conditions that now veterans who do experience these issues, and who do have qualifying service in Southwest Asia and at the times that we’re going to discuss, can link to their military service without needing a medical nexus opinion.

So, veterans who have served in the Southwest Asia Theater of Operations and have been diagnosed with the cancers that I just mentioned, are encouraged to file a claim for disability benefits. If they have not previously filed claims for benefits for these conditions, then they can file a new claim. If they have previously filed claims for these issues, they want to file a supplemental claim.

So, just keep in mind that for anything that hasn’t been claimed before, you can use the new claim form, anything that has been claimed before and has been denied, you want to think about filing a supplemental claim since the issue that has already been before the adjudicators.

And as far as eligibility, according to the VA, any veteran who has manifested one of the respiratory cancers on the list to any degree at any time during or after separation from service in the Southwest Asia Theater of Operations and other areas will be potentially eligible for presumptive service connection.

And for VA benefits purposes, the Southwest Asia Theater of Military Operations refers to the following areas at any time between August 2nd, 1990 and the present. So important dates there, August 2nd, 1990 and the present, this is an ongoing not bookended yet time period, which is important for folks to remember.

The areas that are on the list or that qualify are Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, Waters of the Persian Gulf, the Arabian Sea, and the Red Sea, and the airspace above these locations.

So, now we know what the types of cancers there are on the list, and there are nine of them that are affecting respiratory functions. We know the dates of qualifying service, from August 2nd, 1990 through to the present. And we know the locations that I just listed that VA considers to be part of the Southwest Asia theater service. The location and time period list also include veterans who served in Operation Iraqi Freedom and Operation New Dawn, respectively between 03 in 2010 and 2010 and 2011.

So Nick, can we talk about how looking forward, how this might affect research that’s conducted affecting populations that were exposed to the types of particulate matter and chemicals that we know were in the air and affecting people in Southwest Asia. And also, if there’s any tie-in between this issue in burn pits, because burn pit exposure, I should say, is a question that we are often asked by folks looking to get benefits for conditions that they believed to be related to burn pit exposure.

So, can you talk to us a little bit about what are some future areas that we might want to consider and keep track of related to this issue?

Nick: Yeah, absolutely. Thanks, Maura. So, one thing to keep in mind is that as we discussed at the very beginning, this is part of an ongoing review of existing scientific and medical literature. And this is the second set of conditions that they’ve made presumptive, based off of this particulate matter exposure.

Last year, in August of 2021, there were three new respiratory conditions were linked to particulate matter, being chronic asthma, rhinitis, and sinusitis. And those were conceded based off of a combination of particulate matter exposure and burn pit exposure.

And with those particular conditions, you need to have the same sort of area of service that you already talked about and to have developed the condition within 10 years. And in addition to the regions that you included, this new regulation also included Afghanistan, Djibouti, Syria, and Uzbekistan as areas where there were particulate matter exposure and burn pit exposure, as examples of the potential sources of the chemicals these veterans were being exposed to.

So again, these are just different sets of conditions being added to the presumptive list based on existing scientific and medical literature. But obviously, there are new studies are being published all the time, and one of the particular areas of concern when these studies are being conducted moving forward is going to be what specific diseases might be related to the burn pit exposure in particular.

Because at this point, there are many veterans who were exposed to burn pits who were also exposed to particulate matter. But we want to emphasize upfront that it’s possible to have been exposed to particulate matter without being near a burn pit.

So these cancers, these conditions aren’t exclusive to burn pit exposure. They’re really targeted toward anybody who served in the countries that you noted earlier. But the reason why the burn pits themselves are important is because it’s a particular type of toxic chemical pollution and exposure. That’s in the air, the water, and the soil around these burn pits. And there are many more chemicals that could result in additional conditions being added to the list down the road.

Maura: That’s really helpful to know because again, this is a topic of concern for a lot of folks who served in Southwest Asia or family members and friends of our veterans. And you do not need to show specific burn pit exposure to avail yourself of these new presumptions. So, that’s important for people to keep in mind.

Nick: Exactly. Burn pits are just one particular source of exposure to this particulate matter that we’re talking about. And for toxic exposures generally in the Persian Gulf area.

Maura: Exactly. In terms of timing, we do not have an exact timeline or an expected date when these nine respiratory cancers will be added to VAs presumptive list. Currently, VA has stated that once their rulemaking is complete, VA will be conducting outreach to impacted veterans and survivors to inform them about their potential eligibility.

But again, we know it’s important for people to understand when the timing of these new rules will be. We know that the agency can take a while with these things, especially when they have only so far announced a pretty general statement about the status of their current rulemaking, which is still in the proposal stage.

So, we will be tracking this issue. We will be providing further updates as we have any. We’re also going to be summarizing the content of today’s discussion, I believe through a blog post that should be available relatively shortly if it isn’t already. So, please feel free to review it. The list of cancers is again a little bit lengthy and they’re pretty specific.

So, if you have any questions as to which disabilities on the list might apply to you, please do take a look at the information that we provide on the blog. And again, that’ll be another location where we’re going to be sharing updates as we have any. Again, still, no timeline, so we’re really not sure when all of this is going to become effective. And we don’t know when VA will start reaching out to people that might be impacted by these rules. So, best to stay on top of it, which is what we’re planning on doing.

Nick, did you have any closing thoughts or any additional advice you wanted to provide for people?

Nick: Sure. So, first, I want to emphasize this is an ongoing process. They added three conditions last summer. They’ve already added nine more conditions this spring. So, it’s an ongoing process and it’s going to continue moving forward as new research comes in and those areas are examined.

But it’s also important to remind people that these are presumptions established by regulation. Meaning, that nothing precludes you from seeking a direct service connection, while these regulations kind of sort themselves out.

That’s important because ultimately if you’re able to get a medical opinion from your doctor or another medical provider that links your exposure to your current diagnosis, you can still get a service connection even if the presumption hasn’t been established yet. So nothing about this should discourage you from filing a claim, if you think there’s a relationship between your Persian Gulf service and your conditions, and it’s certainly not worth waiting while the presumptions kind of figure themselves out, file that claim sooner rather than later.

Maura: That’s an excellent point that we always try to make. So, thank you, Nick, for bringing that up that we always try to make in discussions about presumptions. The mistake that VA makes repeatedly as we’ve seen in our practice, I know Nick can attest to this, is that if something is not presumed to be related to a type of exposure and service, they routinely denied those claims.

The presumptive list is certainly not a catch-all list. We know that it’s taken many, many years since 1990, the beginning of the presumptive period, and today for VA to conduct the research and approve and recognize that there is a link between Southwest Asia exposures, particulate matter exposures, toxic chemical exposures. The types are well-researched now and very known. And it’s just taken quite a while for them to recognize that certain disabilities stem from that exposure.

So, the list that we have is great. Any additions are certainly helpful and welcome so that certain people with these types of disabilities don’t have to go through the hoops of showing a nexus to service between their conditions and their time in the military. But this is in no way meant to deter people who have different disabilities that they believe might be related to their exposure to service. Or as you said Nick, disabilities now that aren’t yet added that we know will be in the future, we hope will be assuming all goes well with the proposal. So, great point and thank you.

That is all we have for today. But again, we will be staying on top of this and keeping you all updated. Please visit our blog about this issue again, to obtain more detailed information about the status of VA’s proposals. And thank you all for tuning in.

Our blog is located, if I didn’t say it already, at CCK-law.com. Please subscribe to our YouTube channel as well. That’s another great source of updates on these and other issues affecting Veterans law.

So, we hope to see you all there in the future and thank you again for tuning in today.