VA Adds 9 Respiratory Cancers as Presumptive Conditions Related to Burn Pit & Toxic Exposure
As of April 25, 2022, nine respiratory cancers have been recognized by VA as presumptive conditions related to toxic exposure from burn pits that were used from the Gulf War on into the War in Afghanistan. This move will allow affected veterans to move more quickly through the disability claims process by presuming a service connection to their disability, as long as it is provable that they served near burn pits during a certain of window of time and in certain locations.
The new rule comes on the heels of recent push for federal legislation to assist veterans affected by toxic exposure and mental health problems associated with recent military conflicts. One such effort is the Honoring Our PACT Act of 2021, which has already passed the House, and, if enacted, would include 23 conditions presumed to be related to exposure to burn pits or airborne hazards.
Honoring Our PACT would also go so far as to add additional benefits for veterans affected by Agent Orange by presuming connection for hypertension and monoclonal gammopathy. Among its other provisions are expanded epidemiological research into conditions related to toxic exposure in certain theaters of war, and an expansion of the veterans allowed to claim presumption for exposure to toxins.
However, it is important to note that until this legislation passes, only the nine conditions listed below have been presumed to be linked to burn pit exposure. Honoring Or PACT is still in the works, and until it is passed, the most important details are as follows.
As of now, VA is processing new disability claims under this latest rule for any veterans who served “any amount of time in the Southwest Asia theater of operations beginning Aug. 2, 1990, to the present, or Afghanistan, Uzbekistan, Syria or Djibouti beginning Sept. 19, 2001, to the present.”
The nine new presumptive conditions, which have been added to VA’s regulations via an interim final rule to the Federal Register, are as follows:
- Squamous cell carcinoma of the larynx
- Squamous cell carcinoma of the trachea
- Adenocarcinoma of the trachea
- Salivary gland-type tumors of the trachea
- Adenosquamous carcinoma of the lung
- Large cell carcinoma of the lung
- Salivary gland-type tumors of the lung
- Sarcomatoid carcinoma of the lung
- Typical and atypical carcinoid of the lung
The decision to consider these conditions presumptive was sparked by what VA acknowledges are “unique circumstances,” given the rarity of the cancers and the plausibility of their having been caused by exposure to airborne hazards associated with burn pits. The “rarity and severeness” of the cancers meant that “it may not be possible to develop additional evidence,” so rather than waiting on additional evidence to pile up, VA determined to make the call now.
As reasoned by the VA, these conditions are rare, as well as more dangerous, with a lower five-year relative survival lower than common cancers, which helped push the decision to consider them presumptive. VA considers any cancer a rare cancer if it has a US incidence rate of 6 out of 100,000 Americans. This should give an idea as to how many veterans may be affected by this recent decision.
The number of veterans who have previously been denied claims for these conditions and may now seek compensation under the new rule is somewhere in the neighborhood of 100. The big question moving forward is, how many veterans making new claims will benefit from this rule?
Burn Pit Recap
A burn pit refers to an open air pit that was used by the military for burning waste. They were used extensively during the wars in Iraq and Afghanistan, as well as during Operations Desert Shield and Desert Storm. All sorts of waste were burned in these pits, including human, food, and medical waste, chemicals, paint, petroleum, lubrication products, munitions and unexploded ordinance, plastic, rubber, and wood. Exposure to smoke from the fires could have resulted in short-term problems like skin, eye, nose, and throat irritation and trouble breathing, as well as long-term problems like those listed above.
Burn pits expelled toxic chemicals, pollutants, and carcinogens, and have been linked to a number of conditions suffered by veterans at higher rates over the last 32 years. The recent legislation follows years of advocacy, and follows such actions as the creation of the voluntary Airborne Hazards and Open Burn Pit Registry and the presumption of service connection for asthma, rhinitis, and sinusitis.
What Can You Do?
For now, VA recommends two courses of action for veterans who is affected by the conditions listed above. First, if you are a veteran, survivor, or spouse who has previously made a claim and been denied compensation, you should make a supplemental claim. This kind of claim, instead of starting up a brand new one, instead adds more evidence to your existing (and previously denied) claim, putting it up for review under the umbrella of the new rule.
For veterans making a new claim, now that the claim has taken affect, the recommendation is more straightforward. Simply file a new claim understanding that these conditions are now considered presumptive of exposure to burn pits or other toxins.
As for a brief reminder on what presumption of service connection means, VA will basically assume based on your service records and current diagnosis that your exposure to burn pits or toxins is what caused your condition to occur. This means the burden has been lessened on the veteran to establish a medical nexus, or proof, showing that your service history is linked to your condition. However, even though VA has instituted this rule to “ease the evidentiary burden” for affected veterans, we recommend collecting as many service records, a professional medical opinion, and buddy statements to help strengthen your claim in any case.
Assistance with your claim
Burn pits represent an evolving area of VA disability compensation policy, and more legislation is sure to be on its way to assist veterans affected by exposure. For veterans suffering from any of the presumptive conditions associated with burn pits, the process to receive disability is that much easier, but veterans suffering from other conditions must still file normal claims. In any case, you need the best representation you can get to file a strong claim and receive the disability compensation that you deserve.
For assistance with your burn pit-related disability claim, contact VA Disability Group PLLC online or at 844-VET-LAWS right away.
