Military Burn Pits: A New Health Epidemic

Posted by Berry Law on July 29, 2021 in Military Burn Pits

Military Burn Pit Exposure

Military veterans deployed overseas in the last two decades know about large burn pits used for refuse disposal and the toxic smoke that filled the air above them. Every military forward operating base (FOB) used burn pits, some covering nearly 20 acres. This includes posts throughout Iraq, Afghanistan, and Djibouti, Somalia, on the Horn of Africa. The pit at Joint Base Balad (Iraq), also known as Logistic Support Area (LSA) Anaconda, is infamous.

Forward operating bases often use burn pits to dispose of nearly every kind of waste — including human feces — burning them with jet fuel.

Because pits do not effectively burn waste, smoke from the mix of chemicals burned in the pits blows across military bases and into service members’ living areas.

The VA admits that toxins in burn pit smoke may affect the skin, eyes, respiratory, and cardiovascular systems; gastrointestinal tract; and internal organs. However, the department insists that most of the irritation is “temporary and resolves” 

At this point, the VA does not consider harm from exposure to burn pits as a “presumptive” exposure for disability. However, veterans may obtain disability benefits if they can show exposure to burn pits and provide evidence that their burn pit exposure caused their disability.

Berry Law can assist and advise veterans who suffer from military burn pit exposure in the Middle East (the Southwest Asia theater of operations), Afghanistan, or the Horn of Africa (Somalia). Your medical condition may qualify for disability benefits without the VA acknowledging the damage done by the military’s toxic burn pits.

Contact us today to discuss whether we can help you.

We Are Veterans Serving Veterans

At Berry Law, our veteran attorneys believe in helping fellow veterans pursue the VA disability benefits they have earned. We handle appeals before VA Regional Offices nationwide and the Board of Veterans’ Appeals, as well as before the U.S. Court of Appeals for Veterans Claims and higher courts when necessary.

Firm founder John S. Berry Sr. is a Vietnam veteran who has a long track record of fighting for the rights of fellow Vietnam veterans suffering from PTSD. Attorney John S. Berry  is a former Army Ranger who served as a company commander during Operation Iraqi Freedom and, before that, deployed to Bosnia for Operation Joint Forge.

Founded in 1965, Berry Law has experience helping veterans obtain disability benefits. Our attorneys have litigated VA disability claims in the Court of Appeals, and our cases have helped to establish VA law. We possess the knowledge, skills, resources, and drive to take on the complex legal issues that may require litigation before the VA fully recognizes burn pit exposure as a direct, presumptive cause of veteran disabilities.

What Is the VA Doing About Veterans’ Burn Pit Exposure?

The VA has established an Airborne Hazards and Open Burn Pit Registry for veterans who want to report burn pit exposure and health concerns. You must complete a questionnaire about your health and exposure to airborne hazards. As the database develops, future studies may use the information to identify the potential for long-term disabilities.

The registry is for OEF/OIF/OND/OFS veterans and service members who deployed to the Southwest Asia theater of operations on or after August 2, 1990, and those who deployed to Afghanistan or Djibouti after September 11, 2001. Registration is voluntary and does not affect eligibility for VA benefits.

The VA also recognizes the potential for veterans to have been exposed to a range of chemical, physical, and environmental hazards during military service. This includes such specific environmental hazards as:

• Burn pits
• Particulate matter
• Chemical fires
• Waste disposal pollution

Veterans may qualify for disability benefits due to their exposure to such environmental hazards if they can demonstrate that they:

• Were discharged under conditions other than dishonorable
• Were exposed to an environmental hazard during military service
• Have a disability caused by exposure to an environmental hazard during military service

Exposure to a burn pit, waste disposal pollution, chemical fires, or particulate matter in and of itself is not a disability. A claim for disability benefits must include medical evidence of a disability, or at least a symptom or cluster of symptoms, and must show that exposure to a specific environmental hazard caused the disability or symptom(s).

You must also demonstrate your exposure to one or more burn pits, typically through service records. However, the VA may consider personal statements, buddy statements, unit histories, news articles, and other evidence.

Toxins and Medical Problems Potentially Related to Burn Pit Exposure

Given the wide variety of materials incinerated in military burn pits, the potential ill effects of exposure to burn pit smoke are innumerable. The VA says problems caused by burn pit exposure wear off when exposure ends, and that toxins found in air samples at burn pits were within acceptable levels. The VA does allow that military veterans who were closer to burn pits and/or exposed for longer periods have a higher potential for harm.

Potential health effects from burn pit exposure also depend on the kind of waste burned. Waste products disposed of in burn pits included but were not limited to:

• Petroleum and lubricant products
• Solvents
• Paints
• Other chemicals
• Medical and human waste
• Metal/aluminum cans
• Munitions and other unexploded ordnance
• Plastics
• Rubber
• Wood
• Discarded food
• Incomplete combustion byproducts

Jet fuel (JP-8) was used as the accelerant in burn pit fires.

Many of the above types of products, if not toxic already, create toxins when burned. When the Department of Defense sampled the air at Joint Base Balad, Iraq, it found particulate matter and several types of toxins:

• Polycyclic Aromatic Hydrocarbons (PAHs) — a group of more than 100 chemicals formed during the incomplete burning of coal, oil and gas, garbage, or other organic substances
• Toxic Organic Halogenated Dioxins and Furans (dioxins) — chlorinated aromatic organic compounds produced primarily during the incineration or burning of waste
• Volatile Organic Compounds (VOCs) — chemicals that evaporate easily and contain carbon atoms, such as acetone, benzene, propylene, and automotive gasoline

According to the Department of Defense, any of these toxins can adversely affect a person’s:

• Cardiovascular system
• Respiratory system
• Central nervous system
• Peripheral nervous system
• Reproductive system
• Gastrointestinal (GI) tract
• Liver
• Kidneys
• Eyes
• Skin

Harmful exposure is primarily through inhalation and contact with skin, but also through ingestion. For some of the toxins, skin contact “greatly” contributes to overall dosage, or amount of consumption.

More specifically, the VA says occupational exposure to fuels (petroleum, lubricants, and oils, including JP-8 jet fuel and diesel) can cause irritation to unprotected skin, eye and upper-respiratory irritation, fatigue, breathing difficulty, headaches, dizziness, and sleep disturbances.

Inhaling the vapors of solvents (liquids used to dissolve, degrease, clean, strip paint, etc.) can irritate the eyes and cause drowsiness and/or difficulty with breathing, and at high levels can cause neurological damage.

How Do You Get VA Disability Benefits for a Burn Pit-Related Illness?

If you believe exposure to an open military burn pit caused your disabling illness, you can apply for veterans’ disability benefits online at the VA website or complete and mail VA Form 21-526 to your local VA Regional Office (VARO). Here is what you can expect from the process:

• You will need to document your illness, your exposure to a burn pit while on active duty, and how your illness is connected to your burn pit exposure.
• After the VA reviews your benefits claim, a claims evaluator may order you to undergo a Compensation and Pension Examination, or “C&P exam,” at your local VA medical center. A VA doctor will conduct the C&P exam and render his or her opinion as to the nature and severity of your condition.
• The VA will use the medical professional’s report to assign VA Diagnostic Codes and determine a disability rating for the medical condition you report. If you have one or more disabilities in your claim, the VA’s Combined Disabilities Ratings Table will determine your final rating.
• If the VA denies your illness is service-connected (i.e., caused by burn pit exposure) or refuses to provide a C&P exam, you have the right to submit your own Independent Medical Examination (IME). In an IME, a private doctor provides his or her opinion as to whether you suffer from a service-connected illness, and to what extent. An IME will carry more weight if the doctor indicates that he or she has also reviewed your service medical records and other medical documentation.
• You may also support your claim by submitting a Residual Functional Capacity Form (RFC), an overall assessment of your health, which includes a physician’s statement as to why you should qualify for disability benefits.
• You can also submit a “lay statement” or “buddy statement” indicating an acquaintance’s firsthand knowledge of your current condition and/or of your exposure to burn pit(s).

How to Appeal an Adverse VA Disability Claim Decision

When the VA has processed your claim, the VA Regional Office will mail you a Rating Decision to advise you of the disability rating and monthly benefit granted to you. If you find the decision to be wrong, you have a right to appeal.

The VA claims appeals process has multiple levels:

Regional Office & Board of Veterans’ Appeals

• An appeal of the initial Rating Decision issued by your Regional Office requires filing a Notice of Disagreement (NOD) with the office within one year of the initial decision. If you miss the one-year deadline, the decision becomes final.
• The office will issue a Statement of the Case (SOC) in response to your Notice of Disagreement. The SOC details development of your claim and the VA’s review and Rating Decision. The Regional Office will then provide you with the opportunity to file a VAF-9 and certify your appeal and forward it to the Board of Veterans’ Appeals (BVA).
• An administrative law judge at the BVA will conduct review of your benefits claim, including the facts and legal issues it raises. You can request a hearing at this stage, but in most cases a hearing will delay the evaluation of your claim.
• The BVA will issue a decision on your appeal.

U.S. Court of Appeals for Veterans Claims

• If you object to the BVA’s decision, you may go next to the U.S. Court of Appeals for Veterans Claims (USCAVC).
• The Appeals Court will review the BVA’s decision and determine whether the BVA made errors as it applied relevant statutes and regulations to your claim. The Appeals Court will affirm, reverse, or remand your case (send it back to the BVA).
• To appeal a USCAVC decision, you must go to the U.S. Court of Appeals for the Federal Circuit and plead your case. If the Federal Circuit’s decision is unsatisfactory, a veteran may petition the Supreme Court of the United States (SCOTUS) for final review.
• For the Supreme Court to accept your case, it must address a broad point of law that SCOTUS justices believe must be settled for the good of the country. Otherwise, the Supreme Court will decline to take your case, which would allow the Federal Circuit decision to stand.

Berry Law Can Help with Your VA Disability Claim

Berry Law helps veterans appeal adverse VA disability benefit claims decisions. Many clients appeal because the VA denied their injury was service-connected, awarded a disability rating that was too low (and thus provided less of a benefit), or made an error in the correct effective date for their benefits.

Veterans who are disabled due to toxins spewed by military base burn pits must prove that their illness is service connected. However, the rules and regulations governing the claims process can be confusing and frustrating for everyone involved — including claim evaluators who make errors even with the best of intentions.

Facing the VA system alone is not necessary. At Berry Law, we know the way forward. We have decades of experience fighting for veterans appealing faulty VA disability benefit decisions.

Our objective is to help veterans obtain the disability benefits they earned.