We’ve still been hearing quite a bit of confusion from veterans regarding the February ruling on a case that positively linked lung disease to open-air burn pits.
To be clear, this was a civilian case filed by a civilian contractor against the Labor Department under the US Department of Labor’s Office for Workers’ Compensation Programs and had no direct connection to veterans or the VA at all.
The civilian contractor had developed lung disease and other ailments after being exposed to burn pits while working at a military base in Iraq, and the judge ruled that there was sufficient evidence to show that the contractor suffers from “deployment-related lung disease.”
While this might seem to then imply that military members exposed to the same circumstances while deployed in Iraq could also develop the same conditions, the ruling, unfortunately, has no jurisdiction over the VA.
So what does this mean for military members and veterans who believe that their conditions are related to their burn pit exposure?
For years now, thousands of military and civilian personnel have developed health issues after being exposed to thick clouds of toxic smoke from open-air burn pits at military bases in Afghanistan and Iraq. Despite years of effort by veterans’ advocates to get burn pit exposure added to the VA’s Presumptive List, the VA continues to state on its website that research does not support evidence of long-term health effects from burn pit exposure.
While the VA does state that the toxins in the smoke from burn pits may affect the eyes, cardiovascular and respiratory systems, internal organs, skin, and gastrointestinal tract, they also state that adverse health effects related to burn pit smoke are affected by many variables, such as the length of exposure, wind speed and direction, and the type of materials being burned, among others.
Because burn pit exposure is not currently considered service-connected by the VA, thousands of related benefits claims have been and continue to be denied. And this case has not changed that fact, although it does add firepower to the advocates fighting for these affected veterans.
While this case may set a theoretical precedent for future cases, veterans should not expect to see a change at this time. This case was between a civilian employee and a civilian employer, and ruled upon by a judge under the Department of Labor (as opposed to a federal court judge). Therefore, this ruling has no direct effect on military members or the VA nor does it set a legal precedence which would affect the VA in the same way that a federal court ruling would.
However, veterans’ groups and advocates are hopeful that this ruling will put pressure upon the VA to acknowledge service-connection for these conditions, which could mean a policy change in the future that would allow veterans to receive the care they deserve.
In the meantime, we strongly encourage affected veterans to join the 130,000 veterans already registered with the VA’s Airborn Hazards and Open Burn Pit Registry. Make the VA aware of your case and the effect a policy change would have on your life. You can also write your members of Congress and bring this ruling to their attention, asking them to go to bat for our veterans. The more attention we bring to the problem, the higher the possibility that it may get fixed.
Hi Donnie –
Conditions caused by the use of tobacco products are not ratable. Because of this, any condition worsened by the use of tobacco products is more difficult to rate. Any symptoms caused by the smoking technically cannot count toward a rating.
When trying to separate what symptoms are due to your asthma and which are due to the smoking, it is incredibly difficult to separate them. Thus, the VA and the PEB have to make judgement calls on how bad your asthma would be if you were not a smoker. It is standard practice to decrease a rating for a condition that is affected by smoking. By still awarding you the 20% (and not making it 0%), they are still acknowledging that your asthma is a legitimate condition in its own right.
As for the spine, it is rated on the current physical limitations (mostly limited motion) at the time of rating. If you can show that your motion was more severely limited and qualified you for a higher rating at the time you were given a 20%, then you can appeal for a backdated increase. If instead, the condition worsened over time until you qualified for a higher rating in 2015, then you were correctly rated.
I was in Iraq in 04 05 and had sever asthma attacks, I had to go to the TMC at least 3 times a week for treatments. During my PEB I took a couple drags from a cig and the Col. told the PEB judge not to rate me for asthma. Was that legal for him to interfer with a hearing and change my rating. I had all of the paperwork for the treatments. The PEB had already assigned a rating of 40% then changed it to 20%. I had my back broken in 3 places and 2 surgeries and only got 20%. They later came back and gave my 40% in 2015 and still have not got all my records right even though they were ordered to have it done in 90 days.
Hopefully this could mean a huge difference to a great number of our service members like yourself. We won't really know, however, until legislation is officially published exactly what it will entail and who all will be able to benefit from it.
Hey..Thank you for such a great and informative website. This was MUCH needed!!! I am currently suffering from so many health conditions it is getting difficult to keep track of them. I just turned 50 years old 5'11" and 170 lbs. I suffered a major heart attack 5 years ago age 44 which I barely survived, I currently have Heart Disease, COPD, Gastrointestinal Disease (60% SC), Anxiety (30% SC), Squamous Cell Carcinoma on my right ear, Big time memory problems, Headaches, Hearing Impairment (10% SC) and the list goes on. I smoked approx 1 pack of cigarettes for around 20 years but have all of these conditions. I was a M! tank Crewman In Desert Storm along with other duty's. I had massive exposure to oil well fires and smoke, tons of burn pit activity's and exposure, experimental medications, lots of CARC paint exposure, insects/flys and pesticides, depleted uranium and that list goes on. It is very very very difficult to get civilian doctors to fill out VA paperwork and the VA acknowledges I have all of these conditions yet I am having an extremely difficult time tying this all into a winnable claim other than the couple that I did win. The Desert Storm Syndrome umbrella is even hard under VA's rules even though I have every single issue listed under their criteria but it nearly impossible to use. Now I guess the burn pit/hazardous smoke etc angle is all I can hope for to help me and my claim? My question is am I missing something here? How can I have all of these issues and this not be related to my 7 active years and Desert Shield/Storm exposures??? Nobody else in my family has any of these issues and all even smoke. Will burn pit legislation help me with this…..Is that what I should be waiting for??? Thank you for any assistance regarding this. James
The VA has not yet created a Presumptive List for burn pit exposure, and we don't know if they will.
However, for the more general conditions, like ED and high blood pressure, you possibly could qualify as Gulf War Syndrome:
I also have high blood pressure and leukemia and ed. I had to walk through burn pit smoke to get to and from my work site on ballad air force base every day. Is there any hope of benefits?
Not under the cardiovascular section even??
Neither A-fib nor HBP are on the Presumptive List for the 1-year connection.
Sometimes the VA will connect other chronic conditions that develop within a year, but usually only if there is concrete evidence that the conditions must have developed while in service. A letter from your cardiologist stating a timeline for the development of the condition could help support a claim.
I'm on the "registry"… I have developed A-fib and HBP within the year time frame. I ETS'd in April of 2013 and and my symptoms started in Feb '14. I was hospitalized with A-fib and HBP. I am taking amiodarone and metaprolol to control my flutter and HBP but can't get rated for either.. Why not?
I am so tired of hearing that people at the VA denying Soldiers of combat their duty related benefits. Some of these people denying these Soldiers have never been in the Military. I strongly recommend that congress get rid of all those people and staff the VA with knowledgeable educated veterans to ensure that all veterans are properly taken care of.