New VA Respiratory Presumption: Particulate Matter and Burn Pits
Maura Black: Hello everyone. Thank you so much for joining us today for CCK’s On Air recording. My name is Maura Black. I’m joined today by Nicholas Briggs and Mike Lostritto. We’re all from CCK, and today we’re going to be discussing new presumptive respiratory conditions that have been linked to particulate matter exposure.
So, this is a newer topic. We have a lot of resources on our website cck-law.com concerning some of the topics that we’re going to be talking about today. Generally, service-connection, Persian Gulf War exposures. But today, we wanted to specifically set aside some time to talk about the new presumptive conditions that VA has added to its list, recognizing that there are certain illnesses that are presumptively associated with particulate matter exposure.
So, VA announced these new presumptive conditions on August 2. And the three conditions that have been presumptively linked to particulate matter exposure are chronic asthma, rhinitis, and sinusitis. Veterans who developed one of these conditions within 10 years of a qualifying period of service in Southwest Asia or other certain areas can now have their disability claims process under this new presumption. So this is a really important discussion that we want to have with you all. We are going to be posting some other materials if there’s a comment associated with this video or this recording, so please feel free to check out those references.
Let’s first start by defining what a presumption is. I think that’s an important place to start because this can be a technical legal topic. But when we talk about a presumption of service connection or a presumption sometimes of exposure, that topic might come up today, we’re talking about an assumption that VA will make, that the facts are there to substantiate that link. So, for instance, if a veteran develops a disability and also has in-service exposure to some particular thing and VA recognizes a presumption between that exposure and the disability that the veteran has, then the veteran doesn’t need to go on to prove that the disability that they have was caused by that exposure. It will simply be presumed.
So, it’s a part of the law that takes over the whole nexus piece of things when we think about the elements of service connection. So, having a presumption in place makes it much easier for veterans to win their disability benefits claims. So, these presumptions are really important to be thinking about if you do have any of those three qualifying conditions, which again are chronic asthma, rhinitis, and sinusitis.
So, Nick, I want to go over to you. Now that we’ve kind of defined what the presumption term means, can we also get some foundational information about what particulate matter pollution is and what kind of in-service exposure we’re going to be talking about and thinking about today?
Nicholas Briggs: Absolutely. So when we talk about particulate matter, we talk about a mixture of tiny toxic particles or droplets. These can be things such as dust, dirt, smoke, or soot that is polluting the air. Some of these particles are visible to the human eye while others are so small that you can only see them with an electron microscope.
Particulate matter generally forms in the atmosphere, following a complex reaction of different pollutants, such as sulfur dioxide or nitrogen oxides. And if inhaled, these particulate matter can burrow deep into the lungs and even infiltrate the bloodstream, which can lead to serious health effects.
Maura: And so, how is particulate matter exposure or particulate matter pollution an issue that affects our veterans?
Nicholas: It’s one of the main exposures that many of our modern-day veterans have been exposed to during their service in Southwest Asia, in particular. Beginning in the early 1990s through to recently, veterans were likely exposed to dust, sand storms, and other environmental hazards containing the sort of particulate matter that we talked about above. So, these veterans in these areas were forced to breathe in these toxic fumes for extended periods of time, and as a result, many of them are suffering from different illnesses and disabilities of which asthma, rhinitis, and sinusitis are now recognized to be related to.
Maura: So Mike, as Nick mentioned, this is one of the major types of contaminants or exposures that our modern-day veterans have experienced. Can you talk about the link or the association between particulate matter pollution and burn pits? Because we know that burn pits are a major issue. We’ve been seeing a lot about burn pit pollution and toxic exposures as due to burn pit exposure in the news lately, with Congress working on some legislation that could cover certain types of burn pit exposures, maybe with some more presumptions in the future, not to get ahead of ourselves. But can you talk about how the particulate matter issue is linked with the burn pits issue?
Mike: Sure. Thanks, Maura. The common question that I’ve received, I think we received collectively is, is this stuff related to burn pits just quite simply? And I think the short answer is yes. A portion of particulate matter pollution may have, in fact, been caused by US military burn pits. That’s the short answer.
And so, I think just taking a step back, what is an open-air burn pit? These really are large areas of land that were used as a method of waste disposal on American bases in Iraq and Afghanistan, primarily post the 9/11 era, so after September 11th 2001. And this was really a method for our service members to dispose of huge amounts of toxic and other waste. The waste would be incinerated in these burn pits. Some of them could be smaller, some of them could be as large as maybe a football field from what I’ve heard. So, they really could range in size.
But essentially, they all have now been found to emit certain, or at the time were emitting plumes of toxic smoke. And we’re finding that this smoke, in fact, was toxic and contained particulate matter, as we’re discussing today, and other dangerous toxins. And so, just to give our viewers a reference as to what was burned in these burn pits, it really ranged the gamut from human and medical waste to plastics, rubber, aluminum, paint, petroleum, toxic chemicals, and even ammunition.
So, as you can see, really just about anything and everything could have been burned in these burn pits resulting in what we now know to be this particulate matter pollution that unfortunately our service members inhaled as they were around the plumes of toxic smoke that were emitted from these sometimes rather large burn pits.
Maura: Thanks Mike. That’s really helpful background information. I think a lot of people have a good sense of just the fact that burn pit exposure is very harmful, really takes a toll on human health. But hearing the list of things that were burned in burn pits, the list of things that had no other way to be disposed of by service members on bases overseas, and just the fact that those items were burned and all of the residual particles from those items are blown into the air being breathed in — this is a really serious health hazard. And we’re going to talk in a minute about how it’s a really big deal that these three conditions that have been added as presumptives, that VA has finally recognized that those conditions can result from the harmful health effects that result from particulate matter exposure, especially burn pit exposure.
It’s of course a shame, I don’t think I need to say it, that it’s taken this long. It’s 2021 and we’re just finally getting around to recognizing the nexus between the in-service exposures that we know are so harmful to so many of our service members and the disabilities that they developed. Because the burn pit issue is a really, really serious one. I don’t need to tell a lot of our viewers that, they’ve lived it, they know it, they’ve been reading the articles and keeping up to date on the science.
But just an aside, as I said before, it’s great that we now have VA’s recognition that chronic asthma, sinusitis, and rhinitis are presumptively associated with particulate matter exposure. It’s a big step in the right direction. Of course, these are the first conditions being presumptively associated with particulate matter exposure, so that’s the only three on the list right now.
Folks that have dealt with claims for herbicide exposure issues, know that there was a list for herbicide exposure, a big issue for Vietnam-era veterans who served in the Republic of Vietnam. And that list continued to grow over the years. So, we’re hoping that the same happens with this list. It’s certainly something that our office is pushing and fighting for, because we know that there are conditions other than these three. Again, I’m going to name them just because it’s kind of the whole point of today’s discussion, making sure everyone’s aware that it’s chronic asthma, rhinitis, and sinusitis that have been added to this now finally existing list, and we’re hoping that more conditions are added in the future.
Just because a presumption may not be available for a disability that a person may have that they believe is related to particulate matter exposure, does not stop a person or a veteran from filing a claim for that condition. It’s important that we recognize that the presumption just works to take away the element of nexus that veterans otherwise have to prove if they have a disability that they want to demonstrate is related to their service. So, this presumption means that they don’t have to show that link that the science or the medicine presumes a link and the law presumes a link, but they’re still a pathway for direct service connection or for other avenues of service connection for other conditions that we’ll get into a little bit later.
Before we go there, Nick, can you talk to us a little bit about how a veteran who may have these three conditions or one of them that have been added to this list can go about obtaining presumptive service connection?
Nicholas: So up to this point, we’ve talked a bit about how the presumption removes the need for the veteran to establish medical nexus, but there are still factors they need to establish just like they would in any other service connection claim. First, you need to be able to establish that you were in one of the areas where the presumption applies. So, in this particular case, any veterans who served in Afghanistan, Uzbekistan, Syria, or Djibouti between September 19, 2001 and the present day are eligible for the presumption, as well as any veterans who served in the Southwest Asia theater of operations between August 2, 1990 and the present day.
The Southwest Asia theater includes locations such as Iraq, Qatar, and the Persian Gulf, and the full list of countries considered to be a part of the Southwest Asia theater can be found on our blog. In addition to demonstrating your presence in these areas, you also need to show a diagnosis of either chronic asthma, rhinitis, or sinusitis within 10 years of your qualifying period of service.
Maura: And, go ahead. Sorry.
Nicholas: Just if you meet these qualifications, the best thing that you can do right now is to file a claim. If it’s the first time that you’re doing it, you should file a VA form 21-526EZ. And if you’re reapplying because you’ve applied and been denied in the past, you should submit a VA form 20-0995 for a supplemental claim.
Maura: Great. Thanks, Nick. Sorry to interrupt you there. I want to jump over to Mike because, again, we want to reiterate for folks that that’s great advice from Nick about making sure that if you do have one of these conditions and you haven’t filed a claim before and you may be able to avail yourself of the new presumption, it’s important to file a claim as soon as possible and preserve an effective date for benefits. But if you don’t have one of these conditions, we don’t want to forget about those who are dealing with disabilities that are not on this new list.
So Mike, can you talk to us a little bit about what might be in store for people who’ve got different conditions that may be due to particulate matter exposure, and any advice you may have for people that kind of fit into that group and are maybe feeling right now like these presumptions may not help them a whole lot or affect their claims if they’ve got any going.
Mike: Yeah. The good news is that even for veterans who do not have sinusitis, rhinitis, chronic asthma, VA has now set up an internal process to continuously evaluate respiratory conditions that might be linked to particulate matter.
So earlier this year, May 27th, the Secretary of Veterans Affairs stated that, just that, that VA would consider adding respiratory conditions to this list of presumptive chronic conditions as time progresses and as additional medical evidence comes to light. So I think it’s just important for our viewers to remember that adding asthma, rhinitis, sinusitis, again, to the presumptive list, really just serves as the first recommendation, the first group of conditions that have now been added to this presumption.
VA has formed its own, like I mentioned, its own internal process that really does intend to support future rulemaking based on scientific evidence as it is developed to hopefully add additional conditions down the road. So moving forward, VA plans to continue the internal research that has been doing. And as additional toxic exposure conditions are supported by the medical evidence to be accepted already, that list is expected to continue to grow. In fact, there are several bills, as we speak, kind of winding their way through Congress, that are aimed at adding additional presumptive conditions to this list.
But, all hope is not lost, even if those additional conditions are not ultimately added to the presumptive list. Because veterans with additional respiratory or other illnesses or conditions that result from particulate matter exposure can nevertheless have those conditions service-connected, even if it’s not presumptively found to be service-connected by VA, veterans can always establish service connection for these conditions on what’s known as a direct basis. So, a veteran would have to meet through evidence the traditional elements of meeting service connections. So, show that the veteran has a current diagnosis, show that the veteran was in fact exposed to particulate matter during their service.
And then number three, assuming these conditions aren’t presumptive, they would need some sort of medical evidence that links their diagnosis with their exposure to particulate matter. And so, again, as I said, all hope is not necessarily lost for other conditions beyond the three that have been identified here and added to the presumptive list, even if those conditions aren’t ultimately added to the list in the future.
But again, the good news is that VA has established this internal process to continue to look into these additional issues and diseases, develop scientific evidence to hopefully add some additional presumptive conditions in the future.
Maura: Great. Thanks, Mike. And it’s good to know that it’s not just a matter of VA having its own internal procedure set up. As you mentioned, this definitely does pave the way for the addition of future conditions to the presumptive list down the road. But I think that if I were a veteran filing claims and appeals, especially if I’d been at it for some years, I don’t think I would develop any more optimism by hearing that VA was going to do some internal research about these issues.
As we mentioned before, it’s just been a very long time to get here. I think people are really feeling like, sure, this may be a step in the right direction, but it’s definitely not enough based on how harmful we know particulate matter exposure is. So, as you mentioned Mike, it’s also good to know that there are several pieces of legislation that are still before Congress. We’ve given a status on those previously. I’m sure that there are changes. So, we encourage everyone just stay up to date and we’ll provide more information if we find out about anything definitive happening. But it will be important to watch to see what Congress does with those, because there are different comprehensive exposure bills that are pending that are going to be able to have even more of an impact in this area. So, that’s definitely going to be critical to see what happens. Aside from VA’s assurance, of course, that it will do its own internal research and whatever it says that it’s doing, but we just know that not to be something that we want to hold our breath for.
So, as you mentioned Mike also, anyone who’s thinking about filing a claim or is working on a claim for a condition that’s not one of these three that’s been added to the list, you want to be thinking about developing evidence for your claim that satisfies just generally the three elements of service connection. I think Mike went over these in good detail. I think it bears repeating though, and we do have a lot of information on our blog, our website about this topic.
You want to make sure that you have evidence of a current disability, so you want to be telling VA what kind of issue you have, what medical issue you have that you’re seeking benefits for. You want to be able to show that you were exposed in-service. Nick provided some really helpful information earlier about dates and locations and those should all appear on our blog and on our website as well, if you’re looking for some specifics about whether your period of service and place of service qualifies.
And then finally, it’s very very helpful to have that medical nexus evidence of a link between your claimed disability and your in-service exposures. Those are the three elements and the three avenues of evidence that you want to have to support your claim and appeal because those are the things that VA is going to be evaluating in deciding whether to grant benefits.
So, I think just some practical tips would be to make sure that your evidence or the development that you’ve got supports those three elements of service connection if you are filing a claim or appeal for something not on this list. And as Mike mentioned earlier, definitely keep an eye out to see what is going on with the legislation and just to see if they’re going to be any future updates, because we are hoping that this list is continually growing and progressing and not something that is stalling out with the addition of these three conditions, which is great. Again, it’s great progress, but we definitely want to see more.
Nick and Mike, do you have any final closing thoughts or advice for our viewers today?
Mike: I’ll just add that, and I think you touched on this Maura, but again, I think it does bear repeating, for conditions that are not on this list, medical evidence is going to be really critical for veterans to obtain, whether that be an opinion, if at all possible, from a treating provider that links their condition to the exposure, to particulate matter. Or if veteran is represented by an accredited agent or an accredited attorney or by some other entity.
Getting medical opinions that can link their condition to their exposure is really also very important to establishing this. So, the presumptions are terrific and it’s a big step forward. But obviously, there are only three conditions that the presumption covers.
And we know from experience and from representing veterans that the types of respiratory and non-respiratory conditions that are related to particulate matter really is quite more extensive than that.
So, again, just would encourage veterans to file those claims if they feel that they should for these conditions that are non-presumptive, and do their best to develop medical evidence that links the condition. That’s going to be really critical in these cases.
Nicholas: One other point to mention is that, at least in the initial development stages of these claims, VA’s duty to assist does still apply. So, they’re going to recognize your exposure to particulate matter if you serve in one of the applicable areas. And ultimately, if there’s a question of whether or not, there’s medical nexus between your diagnosis and your exposure, that’s something they’re going to need to get a VA examination for. So, obviously, VA examinations come with their own set of problems, so you should continue to look for outside medical evidence whenever possible. But VA will, at least, need to take that initial step to see if a VA examiner can link your condition to your particular matter exposure.
Maura: Great. Thank you both so much. Those are really helpful points.
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