Burn Pits Designed as “Instrumentalities of War” for Medical Retirement Combat-Related Findings

The National Veterans Legal Services Program (NVLSP, the same non-profit that helped us C-123 vets with Agent Orange) reached a settlement in Smoke et al. v. Driscoll, a class action lawsuit in the United States District Court for the District of Columbia. The suit challenged the Army’s denial of a combat-related designation during the Disability Evaluation System process for disabilities presumed to be caused by exposure to military burn pits under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (“PACT”) Act, 38 U.S.C. § 1120.

Veterans who were MEDICALLY RETIRED (an important point) following sustained exposure to burn pits, on behalf of a class of current and future veterans who were wrongfully denied a combat-related tax-exemption on their medical retirement pay. One veteran suing was medically retired for asthma, another medically retired due to breast cancer—both conditions that are known to be (and under the PACT Act, presumed to be) caused by burn-pit exposure.

Under federal law, veterans who are medically retired due to “combat related” injuries—a category that includes conditions caused by “instrumentalities of war”—are entitled to tax-free retirement benefits. 

The Physical Evaluation Board (PEB), nonetheless, concluded that medically retired veterans did not suffer from combat-related injuries, based on a PEB policy that burn pits are not “instrumentalities of war” except when being used to burn things like combat, simulated combat, Agent Orange exposure, spent ammunition, ordinance, or military vehicles. The PEB’s policy was contrary to the Army’s policy for administering Combat-Related Special Compensation, under which burn pits are treated as “instrumentalities of war.”

In the settlement, the Army agreed to issue a new internal policy defining open-air burn pits located in combat zones as “instrumentalities of war” under 26 U.S.C. § 104(b)(3)(B) for purposes of Army disability determinations. The Army has posted the revised policy on its website.

The Army has agreed as part of the settlement to review the records of all other veterans who were retired for disabilities presumed to be caused by burn pits under the PACT Act and determine whether their conditions merit combat-related determinations under its new policy. The Army will make reasonable efforts to complete this review of prior determinations for other veterans within six months. Veterans of other services would do well to contact their retirement authorities.

“The Department of Defense estimates that 3.5 million service members were exposed to burn pits, and far too many have since faced serious, life-altering illnesses. This settlement ensures the Army will finally treat burn pits as what they are—instrumentalities of war—so Soldiers who are medically retired for burn-pit presumptive conditions are not unfairly denied the combat-related designation that makes their disability retirement pay tax-free. Importantly, the Army has committed to correcting past denials and applying this policy going forward.”

“This settlement represents a meaningful and well-deserved victory for many veterans living with the lasting effects of burn-pit exposure."

If you are a veteran from any of the branches who was denied combat-related findings for PACT Act conditions during the Disability Evaluation System process, NVLSP encourages you to email lsw.classaction@nvlsp.org to learn more about this case. See NVLSP’s Frequently Asked Questions (FAQs) about the settlement.

Newest Claims Project: Peripheral Neuropathy

 I've drafted a sample VA disability claim for peripheral neuropathy as SECONDARY to diabetes. Vietnam War and C-123 veterans are presumed exposed to Agent Orange and already get service connection for diabetes if diagnosed. The effort here will be to illustrate how a veteran can get service connection by using diabetes type 2 (and other causes) and then peripheral neuropathy as a secondary issue.

Many vets have complained that their peripheral neuropathy claims long after Vietnam are denied due to VA's one year for symptoms requirement – this effort is an alternate approach using peripheral neuropathy as secondary to another illness or injury already recognized by VA as service connected. It’s for anyone, not just Agent Orange folks. Many other ailments are associated with peripheral neuropathy and if you have PN, you'd be wise to investigate.

Pentagon Study To Help Flight Crew and Aviation Ground Support Veterans' Cancer Claims

So, what’s this all about?

About YOU as a veteran, and perhaps also you as a veteran with cancers the Pentagon has identified as somehow related to aviation. We’re addressing active duty as well as Reserve Component servicemembers.

A 2024 Pentagon study identified several cancers as being significantly higher among aircrews and aviation ground support than in a similar non-flying population: What’s greater? 87% melanoma, thyroid cancer 37%, and breast cancer and prostate cancer both 16% greater. The study is attached for your review.

We’re veterans of the 74th Aeromedical Evacuation Squadron, Westover ARB, MA. Our history includes flying the infamous former Agent Orange spray airplanes, the C-123 Provider. Our planes remained contaminated with dioxin. It took many years of fighting until in 2015 VA finally conceded our exposures. Our veterans (plus many other bases and units- see attached lists)) are now presumed by VA as having been exposed and our claims for the various Agent Orange ailments are finally being honored. So much so, in fact, that over $80 million in medical care, compensation and survivor Agent Orange benefits have been won for C-123 veterans.

However, Agent Orange is now pretty much in the “rear view mirror.” Our concern shifts to you if you were in some way associated with military aviation and now suffer one of these cancers. We want to help you understand the importance of the Pentagon study and its value to a VA claim – and the great value to your physician who we hope will cite the study as persuasive in a nexus opinion supporting your VA claim for what VA terms "direct service connection."

VA has typically denied Reserve Component exposure claims (except ours) insisting Reservists weren’t on active duty when exposed: no active duty = no benefits. They also insisted active duty veterans experiencing these cancers only many years after service weren’t injured with exposures and their claims were also denied.

The Pentagon study is our solution. It established that something associated with aviation is causing significantly greater risk of cancers, with worrisome percentages cited above. Now Reservists can claim an exposure injury and have the study (and their physician’s letter citing the study) as strong supporting proof. An exposure injury makes a Reservist a veteran per VA regulations. The same with active duty – if you flew, the study gives a link between flying/maintaining and the cancers. Being a Department of Defense report, the VA finds it damn hard to dispute, particularly because they contributed to it!

There are four claim packets in our Pentagon report. For each named cancer, we’ve writing a brief introduction, discussed the VA Form 526EZ disability claim form, the VA physical exam form for each specific cancer, and a VA Form 21-10210 statement of support. The 21-10210 explains to the VA claims agent why the Pentagon report constitutes powerful evidence supporting your claim. In fact, other veterans have already won claims and appeals by citing the report – it works! Share it with your VSO!

Here are individual claims packets:

Melanoma

Breast Cancer

Thyroid Cancer

Prostate Cancer

Good luck with your claim and let us know how you did.

Wes Carter, 74AES, C-123 Veterans Association.  

rustysilverwings@gmail.com

c123kcancer.blogspot.com

CLICK TO DOWNLOAD: Claims packets for flight crews and aviation ground support veterans: Melanoma, thyroid cancer, breast cancer and prostate cancer. All four are in one file to simplify distribution. Each has an intro, info about VA Form 526EZ to initiate a claim, a cancer-specific VA veterans benefit questionnaire" for a physical exam, and a VA statement form with an explanation about the Pentagon study's importance to aviation-related disability claims.

Here is information on the Pentagon study.

Here's the Vietnam Veterans of American excellent claims guide, although it focus on Agent Orange issues rather than aviation-related illnesses.

VA makes all toxic-exposure conditions presumptive immediately following signing of PACT Act! Great News - no further waiting!

By 

SARA SAMORA

STARS AND STRIPES • August 31,

WASHINGTON — The Veterans Affairs Department has declared all 23 health conditions outlined in the recently enacted PACT Act “presumptive” from the date the bill was signed, reducing the burden on veterans or their survivors to prove that certain diseases were caused by service-related exposure to toxins and burn pits.

The VA had planned to phase in the system, under which specific health conditions likely resulting from exposure to toxins are recognized as service-related, over the next few years. Those conditions include brain cancer, gastrointestinal cancer, kidney cancer, lymphoma and melanoma, among others. President Joe Biden signed the legislation Aug. 10.

"Veterans have waited too long for this care and these benefits already and we're not going to make them wait any longer," VA Secretary Denis McDonough told the American Legion National Convention in Milwaukee on Wednesday. “So instead of phasing in the conditions over the coming years, we're making all conditions outlined in the PACT Act presumptive August 10."

The law will provide an easier path to health care and benefits for veterans who served near open-air burn pits, which were widely used by the military throughout the 1990s and the post-9/11 wars to dispose of garbage, jet fuel and other materials. Veterans diagnosed with cancer, respiratory issues and lung disease at early ages have blamed exposure on the toxic fumes from these pits, but the VA contended for years that there wasn't sufficient evidence to support their claims.

The new law will also expand the list of presumptive diseases related to Agent Orange to include exposure in Thailand, Cambodia, Laos, Guam, American Samoa and Johnston Atoll. It also strengthens federal research on toxic exposure, and boosts the VA's resources and training to help cope with new claims.

McDonough also said the VA will begin processing PACT Act claims on Jan. 1, describing it as the earliest possible date. He also said that implementing and executing "one of the biggest expansions of VA benefits in history" won't be easy.

"We will really need your help communicating because we want every veteran, every single veteran to get the care they need and the benefits they deserve, the benefits they have earned, and we will not rest until they do," McDonough said.

The bill was named after Sgt. 1st Class Heath Robinson, who was diagnosed with a rare autoimmune disorder and lung cancer after serving with the Army National Guard in Kosovo and Iraq, where he experienced prolonged exposure to burn pits. He died in 2020.