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Class action lawsuit Alleges Army Improperly Classified Burn-Pit Illnesses

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Two army veterans in their class action lawsuit claim the army improperly classified their burn pit-related illnesses as combat-related, and affected the tax status of their medical retirement pay.

Washington, DCTwo army veterans filed a class action lawsuit late last year alleging that the U.S. army improperly classified their burn pit-related illnesses as combat-related, which affects the tax status of their medical retirement pay. They argue that veterans with burn pit-related illnesses – which should be considered combat-related – should be entitled to tax-free retirement benefits as befits the conditions of military service. 

Plaintiffs Sgt. 1st Class Kyle Smoke and Lt. Col. Jennifer McIntyre, both of whom are retired and served in Iraq (McIntyre also served in Afghanistan and retired after 19 years in the Army), filed their lawsuit late last year in the U.S. District Court in Washington, D.C. on behalf of U.S. Army veterans with illnesses recognized by the VA as linked to burn pit exposure.

Despite Smoke’s severe asthma and McIntyre’s diagnosis of metastatic breast cancer that has spread to her liver and lymph nodes—both conditions recognized by the VA as linked to burn pit exposure under the PACT Act—the Army refused to recognise and classify their illnesses as combat-related. They claim that their illnesses were caused by exposure to burn pits, which was a common risk due to a lack of waste disposal alternatives in areas where they were deployed. According to Military.com, the Army's informal Physical Evaluation Board (PEB) ruled that Smoke should be medically retired for his condition but his illness was not the result of a combat-related injury. However, a formal PEB said his disability was indeed combat-related and caused by an "instrumentality of war" -- the burn pits that were used in wartime locations where proper refuse disposal was a challenge. And another back and forth: this time the Army Physical Disability Agency (PDA) a higher adjudicating body, ruled that Smoke's illness rated medical retirement but that it was not combat-related.

Smoke’s asthma claim for Combat-Related Special Compensation was finally approved by the Army, determining he had a “verified disability as combat related due to an Instrumentality of War”, but he still pays taxes on his medical retirement pay.

As for McIntyre, her informal PEB determined that her disease was service-connected but not combat-related. The formal PEB concurred, even though her cancer was diagnosed in the line of duty in a combat zone, as per court documents. And the PDA concluded that burn pits don't automatically constitute an instrument of war.


PACT Act


Their lawsuit argues that the burn pits were as wartime necessities, because there were few other options for waste disposal in the combat zones. And those medically retired since the PACT Act , which affects 10,000 Army soldiers in 2022 alone -- should not be paying taxes on their benefits.

In August 2022, the PACT Act expanded health care and benefits for post-9/11 veterans exposed to the pits and other environmental hazards on those installations. About two dozen diseases and associated illnesses were designated as presumed to be connected to military service, allowing affected veterans to potentially receive expedited health care and disability compensation.

The bill signed into law bipartisan legislation to help veterans exposed to toxic burn pits in Iraq and Afghanistan, calling it a long-overdue step toward fulfilling the country’s “truly sacred obligation” of caring for its veterans, reported the Washington Post.

President Biden said, “This is the most significant law our nation has ever passed to help millions of veterans who are exposed to toxic substances during their military services…I was going to get this done, come hell or high water.” The bill dramatically expands the benefits and services for veterans exposed to such toxins, who may develop injuries and illnesses that take years to manifest themselves. Those realities often made it difficult for veterans to establish a direct connection between their service and disabilities, preventing them from getting the care they needed, said the White House and reported by the WP.

However, the plaintiffs’ attorneys argue that the Army’s PEB has a systemic practice and policy of denying combat-related findings for medical retirement purposes for unfitting PACT Act Conditions on the basis that military burn pits do not qualify as [instruments of war]," and that the Army's practice of medically retiring soldiers for PACT Act conditions is contrary to the law. "The Army's refusal to classify burn pits as instrumentalities of war during the Disability Evaluation System process ignores that the Department of Defense instruction only defines military burn pits in context of combat, which is uniquely particular to the military," National Veterans Legal Services Program Senior Managing Attorney Esther Leibfarth said last October.

The attorneys claim the PACT Act supports their argument that the conditions are combat-related and that Defense Department instructions say that if a disability was incurred "during any period of service as a result of ... injury or sickness caused by fumes, gasses, or explosion of military ordnance, vehicles or material," the criteria for combat-related is met.


Burn Pit Exposure


Almost three and half million members of the US military have been exposed to smoke and fumes from open burn pits. A study published in 2023 titled "Military burn pit exposure and airway disease: implications for our Veteran population", found that millions of veterans have been exposed to burn pit smoke during combat deployments throughout the last three decades. Toxic compounds present in burn pit fumes that may cause or exacerbate upper and lower airway disease include dioxins, polyaromatic hydrocarbons particulate matter, and more.

“A study of over four hundred thousand Veterans deployed during 2001 – 2014 across 109 US bases across the world found that 85 percent of personnel were deployed to bases with burn pits and a median duration of days deployed was over one year. As the health hazards of such exposures became evident, the US Department of Defense released regulations on burn pits in 2009 that required segregation of hazardous and medical waste and established limitations on items that could be disposed in burn pits. However, despite these regulations, forty percent of bases still had burn pits in use in 2014. It is unclear whether these regulations have had any impact on health, as comparative studies on health outcomes before and after these changes were made, or on air sampling for emissions, have not been done.”


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