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Pending Burn Pit Legislation 2021

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Maura Black:
Hi, everyone. Thank you so much for tuning in today to CCK’s Veterans Legal Lowdown podcast. My name is Maura Black. I am an attorney at CCK. I am joined today by Christine Clemens, also an attorney of the firm, and Nick Briggs, an accredited VA claims agent. Today, we are going to be discussing new burn pit legislation.

First, we are going to start off by going through what are burn pits, what we are referring to when we are talking about the different pieces of legislation that are currently pending in Congress. Then we are going to get into specifically four of the different pieces of legislation that are pending mostly at the Senate, but a couple of things are pending at the House as well. We wanted to get into some details about what those different pieces of legislation entail.

None of them have been finalized yet. I think that is an important point that we might make a couple of times throughout today’s broadcast, but we just want to emphasize that these are all things that are pending, worth exploring for sure. As advocates and VA law practitioners, we are keeping our eye very carefully on these pending pieces of legislation, but also what the details are with respect to each. What are the pros and cons? What are some things that we see in some pieces of the legislation as opposed to others?

We want to keep you all informed as to what is going on in government right now with respect to burn pits, which is a really pressing issue frankly nowadays, a very timely one. I am sure that we will have rolling updates as we have more information in the future. We want to start off, like I said, by giving an overview. What are burn pits? What should you know about burn pits if you are not really familiar with this topic or issue?

Christine, could you start us off with some general information for what viewers should know?

Christine Clemens: Absolutely, let us get started with what burn pits are. Military burn pits are large areas of land in which the military and its contractors incinerated, all waste that was generated by military bases. That included plastics, medical waste, rubber, human waste. Pretty much anything that was around, they would incinerate in these burn pits. US military use burn pits as part of their waste disposal protocol in places such as Iraq and Afghanistan in the post 9/11 era.

Although the practice was effective in reducing large quantities of waste, these pits emitted plumes of toxic smoke. So, now as a result, many US military veterans who are exposed to these burn pits have suffered health consequences including respiratory ailments and long-term deterioration of lung health.

Maura: Great, thank you. As Christine mentioned, there are so many numerous locations where burn pits were present and there are many different variations of how big and expansive burn pits were, but I think something that we have seen in talking with a lot of veterans who have served in the Gulf War and War on Terror era is that these were widely used, and that we know. Any health effects that are associated with exposure to these burn pits, no matter how expansive they might have been in some locations or maybe a little bit smaller in others, it is going to impact a pretty big population of veterans, which is why we are keeping our eye on the different pieces of legislation that are pending.

With respect to those, there are 4 major bills pending right now in Congress that we wanted to talk about. I am not going to get into the really long names, we can kind of take those as we go. I am going to ask Christine and Nick to help me out with the details of each, but I think what we need to know for now, like I was saying in the beginning, is that there are 4 bills pending right now, most are with the Senate.

I believe the first one we are going to talk about, though, is pending at the House and we will be watching these very carefully. I think even this month, there are set to be updated and new progress on these bills, so there might be news that we have to cover in the future. I want to start with Nick to talk about the first bill that I believe, and correct me if I am wrong, is pending with the House. Can you go through some of the details with respect to the first one we have on our list?

Nick Briggs: Yes, that is correct. The first one we are going to talk about is pending with the House of Representatives. This one is called the Conceding Our Veterans’ Exposure Now and Necessitating Training Act or the COVENANT Act for short. This piece of legislation was introduced by Representative Elaine Luria in March 2021. It is currently pending at the committee level in the House of Representatives, and it aims to do a number of different things.

First and foremost, it wants to streamline the VA claims process by creating a list of presumptive conditions. It removes the NEXUS requirement for these conditions, and all you would need to show is that you served in particular areas of concern and any of the following lists of conditions would be considered presumptively service-connected. I am not going to go through the whole list because it is pretty sizable, but some of them include asthma that was diagnosed after a period of service, cancers of the head and neck, certain respiratory cancers, (It says of any type, but that remains to be seen) gastrointestinal cancers, reproductive cancers, certain types of lymphoma, brain cancer, COPD, emphysema, pleuritis, pulmonary fibrosis.

Lots of respiratory conditions like Christine mentioned at the top. A lot of these conditions are focused on decreased lung health, but many different cancers would be considered presumptively service-connected under the proposed legislation. Then in addition to creating the presumptions themselves, it would open up healthcare to any veterans sick from burn pit exposure, and like we talked about, it would do away with most of the burden of proof. Veterans would just need to prove that they served in affected areas during cover time periods.

Once that is accomplished, then presumptive service connection should be straightforward from there. In terms of the specific areas covered, it would be any veterans who served after August 1st, 1990 in Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or the United Arab Emirates. Then it also covers veterans who served after 9/11, after the 9/11 attacks in Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Yemen, Uzbekistan, the Philippines, or any country determined to be relevant by VA secretaries.

One thing to note about this bill, again, it is one of the most expansive amongst the new bills that they are considering. It is considered to be potentially less costly than some of the other bills, and it covers a fairly wide range of illnesses, but one of the things that stick out about it is that it does not allow for new conditions to be added or covered later.

So, this is a particular concern to us because just like with Vietnam conditions that were eventually attributed to Agent Orange, there is going to be new science and new studies that show that certain conditions that maybe were not initially determined to be related to toxic exposures eventually were determined to be related. That is just something to keep in mind as this legislation makes its way through the House.

Maura: It is a really good point, Nick, and a good editorialization that I was going to plug if you had not. So, the conditions that Nick listed are obviously pretty broad and it is a long list, but as Nick notes, the list of conditions is a finite one in this piece of legislation. That is something that is important to note. It is not that conditions could not be added in the future by way of different pieces of legislation or other initiatives.

It is just that this bill does not allow for a lot of room for growth or flexibility with respect to the conditions that are known to be associated to burn pit exposure. As we know through our practice and talking with others who are in this field, the science about exposure and health-related issues is an evolving one. It is really pretty cutting edge. I wish that were not the case because burn pits have been an issue now for virtually decades, but it is. It is the case that there is constantly new information coming about with respect to exposure and the health effects, so good thing to keep in mind.

As Nick mentioned, too, this does seem to be a pretty sweeping bill as opposed to some of the others that we will talk about later. I want to switch gears to Christine to talk about the second bill that I believe this one is pending on the Senate side. Could you give us some background on this second piece of legislation?

Christine: Yeah, so this bill is the Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2021. It is pending in the Senate. It was originally proposed last year and was reintroduced by Senators Kirsten Gillibrand and Marco Rubio. A version of this bill is also set to be reintroduced in mid-April by Representatives Raul Ruiz and Brian Fitzpatrick in the House.

My understanding is it is going to be pretty soon, maybe this week even. The bill aims to remove a VA requirement that veterans prove a link between a dozen diseases and exposure to burn pits and other toxins, and instead, veterans would only have to submit documentation that they received a campaign medal associated with the global War on Terror or the Gulf War, and that they suffer from a qualifying health condition.

This bill interestingly uses the law providing healthcare to the victims of the 9/11 attacks as a blueprint and that is due to the similarities of first responders getting sick and dying from inhaling toxic debris. Unlike Luria’s Bill that Nick was talking about, this bill does allow for additional health conditions. So, as science reveals more telling information on diseases that are related to burn pits, those could be added, and so that sort of paves the way for that.

For example, sinusitis and rhinitis are not included as presumptive conditions in this bill, which is different from Luria’s Bill. It has fewer conditions, but, again, the fact that you can add conditions, it would be a bonus to this bill. It does have the backing of some key veteran groups, so that is pretty notable about this.

Maura: I think one of the things that is different from a separate bill that I am going to talk about in just a moment is as you mentioned, Christine, the creation of a presumed link between exposure and the development of a disability later in time. The third bill that we wanted to talk about today was the Veterans Burn Pit Exposure Recognition Act.

This has been introduced to the Senate by 2 members of the Senate Veterans’ Affairs committee back in February. This bill would essentially create recognition and concession of exposure to airborne hazards, toxins, particulate matter, et cetera during qualifying periods of service, but it would not automatically grant benefits to any veterans that were deemed exposed in service to any certain conditions.

I think that makes this third bill that is in the Senate, the Veterans Burn Pit Exposure Recognition Act… I think as the title indicates, it is more focused on conceding the in-service exposure element or the in-service exposure piece of a veteran’s particular disability background if they are filing a claim for disability benefits before the Department of Veterans Affairs, but it does not specifically link that exposure to any condition that is developed later in time.

While I think that this bill is a helpful one and probably would go a long way in helping veterans demonstrate that they were exposed to hazards during their service, it does not take the extra step of removing the burden of the veteran to demonstrate that there is a nexus between that exposure and their claimed conditions or any kind of disability that they develop later, which is important for us.

We talk all the time about the 3 elements of service connection and how those are important for veterans that are seeking disability compensation benefits, and the second element of service connection is that something has to have happened in service or there is some event that is tied to the disability that the veteran has and this would help with that element, but it would not help with assuming that a disability that is developed later is linked to that. I want to go to you, Nick, for the final of the 4 pieces of legislation that are pending if you could talk to us about that.

Nick: Sure, so the last one we have for you today is the Toxic Exposure in the Military Act or the TEAM Act. This was announced by Senator Thom Tillis in April, and the goal of this bill goes a bit beyond what we have talked about up to this point, and that many of the other bills are focused largely on some healthcare aspects, but mostly the veterans’ benefits aspect. This one is a bit more all-encompassing because it would bring together different areas of the VA benefits administration and the healthcare administration so that they could eventually create the sort of presumptive list that we are talking about with some of the other bills.

With that in mind, it seeks to establish an independent commission to research the health effects of all military toxic exposures, and this research would report its findings to VA and Congress. This would include US bases in addition to any bases located abroad like the ones that we have discussed up to this point. It would also require VA to enter into an agreement with the National Academy of Sciences, Engineering, and Medicine to conduct scientific studies regarding the association between illnesses and toxic exposure.

They entered the same sort of contractual agreement with the National Academy of Sciences when they were putting together the IOM reports for Agent Orange. Those updates that happened every 2 years. This would create a system along those same lines to conducted research and to eventually start adding conditions to a list of presumptive service-connected conditions. Then in addition to those commissions, this would also create a toxic exposures questionnaire.

That would be administered by all VA primary care physicians during primary care visits as a way to determine whether a veteran was exposed to toxins during their service, and then finally would also seek to greatly expand the training available to be personnel for toxic exposure-related conditions.

Maura: I think a lot of the elements of the TEAM’s Bill are represented in other pieces of legislation, ones that we have spoken about today, but even past initiatives, the educational component, and the collecting information for healthcare purposes components are really important because as we have mentioned before, the science and the knowledge about health effects is evolving.

So, it is good to see that at least a portion of each of these pieces of legislation for the most part is focused on fostering that additional information and expanding the knowledge base. It will be, of course, the next phase of things to see what VA does with that information. Beyond the bills that we are talking about today and beyond what happens with them, if one makes its way through in the near future, it will then kind of be our responsibility to pivot and see how VA is treating the information that it is gaining and what they are doing to update their regulations in terms of making sure that veterans who do have conceded exposure and have developed health effects related to that exposure are getting the help and the benefits that they need.

So, quickly on that point, Christine, could you talk to us a little bit about the impact of this issue? As I said, we do not know which bill is going to make it through or whether there will be important amendments that are made later on after these things leave committee stages, but what are we looking at in terms of the base of persons that might be affected by this issue? It really is a critical one.

Christine: Yeah, so earlier I said that a lot of people were exposed to burn pits. VA estimate is actually about 3.5 million veterans who are exposed to burn pits, and that is according to a 2015 report. Right now, only about 230,000 of these veterans have registered for VA’s burn pit data collection registry.

So, as we were talking earlier about, well, what the science shows and what it reveals is linked or may be linked to service. Obviously, VAs are only looking at a small number. They are only tracking a small number. It is going to be harder to gather and collect that data, so that will delay some of the information on what should get service-connected. Efforts to provide medical care to military victims of burn pits have long been plagued by delays in Congress and VA.

VA maintains that the science is not clear on diseases potentially caused by burn pit exposure, but advocates argue that this is a way of VA stalling and repeating mistakes quite frankly that they made as Vietnam veterans who were exposed to Agent Orange and World War 2 veterans exposed to radiation. Any of these bills if passed would offer much-needed relief to veterans suffering the toxic effects of burn pit exposure, certainly be better than the status quo where there is inconsistency and who does and does not get benefits, what conditions do and do not get service connected for compensation purposes.

So, at a minimum, any of these bills would make it a more standardized process, easier to access the benefits that would be important for these veterans and their family members.

Maura: I think anyone that is tuned in today that has any experience with the VA and with the claims process in particular, which is obviously our primary focus here at CCK, understands that delay is pretty much as integral a component as any in the process. It is difficult for sure but, as Christine mentioned, these different pending bills and pieces of legislation are a great start.

Again, no word on kind of where things are going to go for sure, but that is what our job is, it is to keep tracking these things and make sure that we are aware of everything that is going on so that we can bring it back to you all for your awareness. So, please stay tuned for any future broadcast on this subject. I am sure that we will have more.

We should also have more content at our website cck-law.com for anyone that is interested in reading a little bit more about this issue and where things stand currently. Either way, we hope that this was helpful today. Thank you so much again for tuning in. We hope to see you all next time.