For the first time, a federal agency recognized that exposure to burn pits used at a US military forward operating base may cause lung disease. This January an administrative law judge (“ALJ”) in the Department of Labor (“DOL”) found that burn pit exposure caused lung disease in a government contractor working in Iraq. Ever since, social media platforms have been abuzz with hopeful chatter that the DOL decision will spark the Department of Veterans Affairs (“VA”) to follow suit and acknowledge the connection between burn pits and negative health conditions. While DOL’s decision evidences a hopeful crack, the dyke has not yet fully burst. Although the ALJ found that a government contractor presented enough evidence to show that exposure to the burn pits caused her lung disease, the DOL decision does not control decisions made by the VA. Veterans with claims pending before VA for that relate to burn pit exposure must continue to gather medical evidence to bring a successful benefits claim — a daunting task when it comes to proving causation.
Factual Background: Veronica Landry Diagnosed with Lung Disease After Deployment
Veronica Landry worked as a government contractor at two forward operating bases in northern Iraq from March 2004 through February 2005. While in Iraq, Ms. Landry lived and worked within a mile of the burn pit at each base. Ms. Landry worked outdoors about a third of the time and testified that she was exposed to smoke from the burn pits every day during her deployment. As has become well known, the military used such burn pits to dispose of a variety of items containing various toxins, such as tires, vehicle parts, hazardous medical materials, plastic water bottles, and ammunition.
After returning to the U.S., Ms. Landry began to develop respiratory problems. These problems included several respiratory “episodes” and an overall decrease in lung function. Ms. Landry was eventually diagnosed with mild lung disease after her doctor conducted testing and a lung biopsy. Ms. Landry’s doctor offered a medical opinion that her mild lung disease was related to her exposure to burn pits, dust, and working outdoors in northern Iraq. However, the doctor did not believe that her lung disease contributed to her respiratory episodes after returning home.
Judge Determines that Burn Pits Contributed to Ms. Landry’s Lung Disease
After reviewing the facts, the ALJ determined that Ms. Landry presented sufficient evidence to show that she her lung disease arose from deployment-related conditions, specifically, exposure to burn pits. This decision marked the first time a federal agency recognized that exposure to a burn pit used at a US military base contributed to deployment-related lung disease.
While the DOL decision found that Ms. Landry presented sufficient evidence to show that she suffered from deployment-related lung disease, the ALJ did not find that her deployment-related lung disease prevented her from maintaining employment under the standard applicable in the DOL’s proceeding. Specifically, the tribunal did not find that her lung condition prevented her from returning to her regular or usual employment. This standard is notably different from those applicable in the context of VA disability claims. The ALJ based his decision, at least in part, on Ms. Landry’s testimony and the opinion of her doctor that the respiratory episodes she suffered after returning to the U.S. were unrelated to her lung disease. Further, the ALJ determined that the medical opinions favorable to Ms. Landry’s employment claim were entitled to little, if any, weight.
Impact of the Landry Case
The Landry case is notable, and in some respects has earned the buzz it created among veterans and their advocates, because it represents the first time the tribunal has concluded that a claimant for government benefits has incurred an illness caused by exposure to military burn pits. However, that enthusiasm must be tempered for a number of reasons. First, the Landry case was decided by the DOL in the context of a claim for Workers’ Compensation benefits. This type of claim involves a different set of laws and regulations from those at play in Veterans’ disability claims. Notably, the ALJ’s decision is not binding in any manner upon the VA or Veterans Law Judges that adjudicate VA claims and appeals. Second, the Landry decision does not announce a new standard of law, or a new way in which the government in general, or DOL in particular, is required to assess burn pit claims. Rather, the ALJ reached its conclusion by applying existing law to the facts provided by the parties. It is telling that the decision does not reference any medical opinion from which DOL argued that Ms. Landry’s respiratory conditions are not caused by burn pit exposure. This makes it different from most VA cases, where VA will generally rely upon opinions provided by Compensation and Pension Examiners. As relevant to veterans, the VA has thus far maintained its position that any irritation caused by burn pit exposure is temporary and resolves after exposure ends.
While veterans hope that the Landry case signals a general change in how federal agencies view claims based on exposure to burn pits and other hazardous air conditions overseas, there is still a long row to hoe. Notwithstanding the medical research relied upon by the VA, the Landry case reinforces that the VA’s position is not universally accepted as fact by the medical community as a whole. Veterans who are able to afford the assistance of private physicians may, much like Ms. Landry, be able to present sufficient evidence to overcome the adverse opinions relied upon by VA and its Compensation & Pension examiners. The case also indicates the continued need for VA and others to increase research efforts regarding the health effects of both short and long-term exposure to burn pits. Without devoting adequate resources to such research, burn pit claims run the risk of becoming the VA’s failure to this generation of service members much in the way it failed Vietnam-era veterans with respect to health conditions caused by exposure to herbicides such as Agent Orange.
Featured Image Courtesy of Senior Airman Julianne Showalte [Public Domain]
This article is authored through the collaborative efforts of Jonathan Heiden, Travis James West, and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting the veterans.