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Burn Pits: The 21st Century’s Agent Orange

By Jessica M. Friedman of Friedman Law Firm, P.C.

Thursday, June 2, 2022

Burn Pits: The 21st Century’s Agent Orange

If you served in Operation Desert Storm or Operation Iraqi Freedom, then you’ll need no introduction to burn pits. 

But for those asking, "What are burn pits?"

Burn pits are excavations filled with any and all waste from a deployment and set aflame with jet fuel or diesel. Waste products commonly disposed of in open burn pits include:

  • Chemicals, paint, medical and human waste

  • Metal and aluminum cans

  • Munitions and unexploded ordnance

  • Petroleum and lubricant products

  • Plastics, rubber, wood, and food waste

The Department of Defense estimates 3.5 million exposed service members. One of those victims, President Biden believes, could be his son Beau. 

-- Edward Helmore, the Guardian

In his State of the Union address, President Biden talked about burn pits, saying exposure could have led to the death of Beau, who served a year-long tour of duty in Iraq and later died of brain cancer. Biden’s son Beau was a major deployed to Iraq in 2008. He was later named Delaware’s attorney general before being diagnosed with brain cancer in 2013. He died two years later at 46 years old. 

During the Iraq and Afghanistan wars starting in 2001, military bases throughout the Middle East relied on burn pits for waste disposal. While this practice long predates the recent conflicts, the conflict in Afghanistan, at its peak, saw burn pits used for over 400 tons of waste daily. 

“The fumes from a burn pit may be a nuisance but it’s not the most dangerous thing, front of mind, when you’re over there. It’s only years later that we’ve come to realize how damaging this stuff might have been.”

-- Alex Morowsky, Wounded Warrior Project

VA Denial

Veterans returning from the Middle East conflict came to face a plight not unlike that of Vietnam veterans who, after being exposed to the toxic herbicide mixture known as Agent Orange, returned home and began reporting symptoms including various types of cancer. In fact, one of the most dangerous and harmful pollutants produced by burn pits is hexachlorodibenzo-p-dioxin, or simply dioxin, and is the same chemical found in Agent Orange. 

Yet the Department of Veterans Affairs has denied about 75% of veterans’ burn pit claims. In their original assessment, they concluded that “there is only limited evidence suggestive of an association between exposure to combustion products and reduced pulmonary function in these populations.” (IOM Report, 2011) Luckily, the last few years have seen a massive shift in their position.

“I served with honor so it was frustrating to be told, in effect, you’re old and broken and we don’t need you. You have to prove you were exposed and that exposure caused what you have.”

-- Andrew Myatt, Wounded Warrior Project

Burn Pits & You

Who does this apply to? Anyone who served in the Middle East or Southeast Asia and experienced exposure to burn pits. 

Factors that may indicate you have a greater or lesser risk of short or long-term health effects include:

  • Types of waste burned

  • Proximity, amount of time, and frequency of exposure

  • Wind direction and other weather-related factors

  • Presence of other airborne or environmental hazards in the area

Leadership

It’s important to consider the role that leadership plays when it comes to problems of this nature. When asked about burn pits, General David Petraeus, then-Commander, US Central Command and Multi-National Force-Iraq, stated commanders' concerns were about basic needs (food and water) of the soldiers under his command and not burn pits, at the time. In his report, the Special Inspector General for Afghanistan Reconstruction responded to such claims, stating:

"It is indefensible that U.S. military personnel, who are already at risk of serious injury and death when fighting the enemy, were put at further risk from the potentially harmful emissions from the use of open-air burn pits.”

-- John F. Sopko, Inspector General for Afghanistan Reconstruction

In 2020, the DoD sampled air from a major base in Iraq beside a burn pit,  found particulate matter, polycyclic aromatic hydrocarbons, volatile organic compounds (VOCs), and toxic organic halogenated dioxins and furans. These substances can have dire effects on the respiratory system, cardiovascular system, skin, and central nervous system. Many forms of cancer have also been linked to dioxins, partially due to the scientific research performed in the wake of the Vietnam War. Another main dioxin released by burn pits is TCDD, also one of the major toxins in Agent Orange.  TCDD has been linked to cancer and other serious illnesses.

“I would challenge any congressperson who says, ‘Well, we’re going to wait for the science to be settled,’ to dig a 100-yard pit in the middle of a town where your constituents live, and burn everything in that town with jet fuel. And then come and tell me that, ‘Yeah, they’re cool with it, because there’s a lot of confusion about whether or not the science is settled that this is harmful to your health.’” 

-- Jon Stewart, NBC News

Presumptive Service Connection

The veterans of the Vietnam war had to fight for over 20 years in order to get Congress to pass the 1991 Agent Orange Act. In 2021, the Veterans Agent Orange Exposure Equity Act was passed, shifting the burden from veterans having to prove exposure to the presumption of exposure to Agent Orange itself. Efforts like this take cooperation between veterans, attorneys familiar with these laws, and government representatives.

When it comes to VA disability today, there is no presumptive service connection for conditions linked to military burn pits. 

Non-presumptive service connection

Presumptive service connection

Veterans must prove a connection between the in-service event and their condition. Claims are judged on a case-by-case basis.

Veterans need only provide evidence they have a disability on the VA’s list of conditions associated with an in-service event.

Conclusion

Outcry from veterans, their families, and those who represent them saw major progress in the last two years. The Department of Defense has now closed out most burn pits and is planning to close those left. As of this writing, only 9 burn pits are still in use, and in far stricter conditions.

Last year, the VA established a presumption of service connection for asthma, sinusitis and rhinitis based on exposure to fine particulate matter for veterans who served any time after August 1990 in south-west Asia, Afghanistan, Syria, Djibouti or in Uzbekistan on or after 19 September 2001. Just last month, April 25, 2022, the VA announced that nine rare respiratory cancers are now presumed service-connected disabilities due to military environmental exposures to fine particulate matter. Because the harmful chemicals in burn pits are defined as “fine particulate matter,” this is the beginning of an important protection we extend to those who serve our nation. 

If you suffer from health issues following burn pit exposure while in the military, you could be eligible for VA disability compensation. Friedman Law Firm has extensive experience working with veterans and, specifically, veterans who suffered Agent Orange exposure. Contact us for a free consultation with one of our attorneys today. 

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