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Anyone who was assigned or volunteered for burn pit duty does not need an explanation. Even deployed service members who did not operate a burn pit are likely familiar with the concept. However, for those reading this who are unfamiliar, a definition will be helpful. A burn pit is a large, open area used to incinerate trash, human waste, and other materials. Rubber and plastics are only two of the many substances that fall under the other materials category.
Burn pits were a common disposal method when our service members were deployed in Afghanistan, Iraq, and other areas over the last thirty-two years. This type of open-air incineration creates a fair amount of smoke. It is now believed that smoke contained toxins that adversely affected the health of many service members. In an effort to aid veterans with certain illnesses, Congress is working on legislation that will make it easier for covered service members to obtain compensation from the Veterans Administration (VA).
The full name of the bill is the Sergeant First Class Heath Robinson Honoring our PACT Act. Heath Robinson served with the Ohio National Guard and was deployed to Kosovo and Iraq. He died in 2020 after being diagnosed with cancer. It is believed that his cancer was caused by burn pit exposure during his overseas service. On March 3, 2022 the United States House of Representatives passed, by a vote of 256-174, the Honoring our PACT Act. On June 16, 2022 the Senate, after amending the bill, passed it by a vote of 84-14. The amended version will now return to the House.
The Act addresses presumption of service connection for VA benefits related to certain disabilities. Service connection is a key component of claims filed for VA Benefits. Generally, a service member will have to prove service connection for any condition or illness that occurred during or is related to their time of service. This Act of Congress should aid veterans diagnosed with illnesses that can be tied to burn pit exposure. Many of the covered illnesses are cancers or similarly complex conditions. Proving service connection for the types of illnesses covered by the bill could be difficult, moreso for deployed personnel who did not directly operate a burn pit.
There are three requirements for service connection of a valid VA claim. (1) Competent evidence of a current disability, (2) evidence of an in-service precipitating disease, injury, or event, and (3) competent evidence of a nexus between the (1) current disability and (2) the precipitating disease, injury, or event that occurred during the period of military service. In simpler terms, service connection requires a current illness typically recognized by a medical diagnosis, something in service that could have caused that illness, and evidence of a connection between the current illness and service event that could have caused the illness. This Act of Congress will not alter the first requirement.
Veterans will still need to have competent evidence of a current disability. Exposure, without a current disability, will not lead to disability compensation. This concept is easier to understand after a brief explanation of the VA ratings schedule. Performing tasks assigned during service does not lead to compensation under the VA disability program. Veterans who operated burn pits, or parachuted out of airplanes, are not compensated because they completed tasks assigned to them. What they are compensated for is disabilities that can be tied to those service activities. The VA compensates for a diagnosed condition, not the activity that led to the diagnosis.
While a successful VA claim requires an in-service event, nexus, or injury, a current disability, and a nexus between the two, there is an exception to this rule. Certain conditions or disabilities may be presumptively connected to your service – thus removing the need to provide a nexus between your disability and service.
An example of this is Agent Orange exposure or Camp Lejeune Contaminated Water. If you were exposed to Agent Orange while in service and later develop diabetes, the VA will presume your diabetes was caused by agent orange. Similarly, if you were stationed on Camp Lejeune in the late 70s or early 80s and develop bladder or liver cancer, that would also be presumptively service connected.
In a nutshell, the presumption of service connection assists veterans in obtaining compensation for disabilities incurred through their service.
Congress is finalizing the presumption of service connection for burn pit exposure. There will be a presumption of toxic exposure for two groups of veterans.
The presumption can only be countered by affirmative evidence that the veteran was not exposed to substances, chemicals, or hazards. Congress has also provided a list of diseases that are covered for presumption of service connection purposes. As amended by the Senate the current list of recognized diseases is:
(1) Asthma that was diagnosed after service of the covered veteran as specified in subsection (c),
(2) The following types of cancer: (A) Head cancer of any type, (B) Neck cancer of any type, (C) Respiratory cancer of any type, (D) Gastrointestinal cancer of any type, (E) Reproductive cancer of any type, (F) Lymphoma cancer of any type, (G) Lymphomatic cancer of any type, (H) Kidney cancer, (I) Brain cancer, (J) Melanoma, and (K) Pancreatic cancer.
(3) Chronic bronchitis.
(4) Chronic obstructive pulmonary disease.
(5) Constrictive bronchiolitis or obliterative bronchiolitis.
(6) Emphysema.
(7) Granulomatous disease.
(8) Interstitial lung disease.
(9) Pleuritis.
(10) Pulmonary fibrosis.
(11) Sarcoidosis.
(12) Chronic sinusitis.
(13) Chronic rhinitis.
(14) Glioblastoma.
(15) Any other disease for which the Secretary determines, pursuant to regulations prescribed under subchapter VII that a presumption of service connection is warranted based on a positive association with a substance, chemical, or airborne hazard identified in the list under section 1119(b)(2) of this title.
It is important to note the current situation is fluid. Nobody can be certain if the House of Representatives will accept the Senate amendments and vote for the current version of the Honoring our PACT Act. Resolution of any potential issues will not occur until the President signs this bill into law.
If you have any questions, about burn pit exposure or any other VA claim, please contact the VA certified attorneys at Stone Rose Law Firm. The process may feel difficult to navigate, but the veterans’ benefits attorneys of Stone Rose Law have the knowledge and experience to help you file your claim. We’ll be with you every step of the way during your application process. Call us today at (480) 498-8998 or contact us online.