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.