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    December 14, 2020

    Soldiers First: Proposed Burn Pit Legislation Would Remove Barrier to Veterans' Care

    By Carina L. Roselli, JD, MEM, CLR Law, PLLC, Woodbridge, VA

    Introduction

    In 2009, in a press conference on proposed burn pit legislation, public health consulting firm Epidemiology International stated that burning solid waste such as plastic, metal, oil, fuel, and human waste “generates some of the most harmful chemicals known to man, and represents an unacceptable health risk.”1 Its official statement referenced chemicals such as dioxins, polycyclic aromatic hydrocarbons, and volatile organic compounds such as benzene and vinyl chloride.2 The firm noted that burn pit smoke contains particulate matter (PM) that absorbs these chemicals, making them capable of deep inhalation into the lungs and transport to other body tissues.3 Epidemiology International concluded its remarks by declaring, “[t]here is irrefutable evidence that there are serious and dangerous health risks associated with exposure to the by-products of waste burning, particularly if the wastes are burned in open burn pits with no emissions controls.”4  

    In a 2020 survey conducted by Iraq and Afghanistan Veterans of America, 86 percent of respondents reported exposure to burn pits or other toxins, 88 percent believe they are experiencing symptoms from exposure to burn pits or other toxins, and of those who report exposure, only 53 percent say they have registered with the Department of Veterans Affairs (VA) Airborne Hazards and Open Burn Pit Registry.5

    On September 23, 2020, the military newspaper, Stars and Stripes, reported that the VA has denied about 78 percent of burn-pit related disability claims.6 Laurine Carson, deputy director of policy and procedures for the VA, explained that the agency is still in the process of studying the issue.7 The federal government has been in the process of study, in one way or another, since the Millennium Cohort Study began in 2001 to examine exposure outcomes from the 1991 Gulf War.8 More targeted burn-pit related studies began in 2010 when the Department of Defense’s (DoD) Armed Forces Health Surveillance Center (AFHCS) conducted Epidemiological Studies of Health Outcomes Among Troops Deployed to Burn Pit Sites to determine the potential long-term health effects of exposure to burn pit smoke.9

    In complete contradiction with DoD burn pit regulations, the AFHSC epidemiological study concluded that the health of personnel deployed to burn pit locations appeared to be “better or about the same” as soldiers who had deployed to an area without a burn pit or who had never deployed.10 Although the DoD’s 2009 burn pit regulation states that “burn pits inherently create health issues and should be terminated as soon as practical in order to protect the life, health, and safety of USCENTCOM and coalition personnel,” the AFHCS study found “no evidence” of increased risk for most of the negative health effects researched.11

    The most recent study, Respiratory Health Effects of Airborne Hazards Exposures in the Southwest Asia Theater of Military Operations (2020), conducted by the National Academies of Sciences, Engineering, and Medicine, found the jury is still out a decade later. The National Academies’ study determined that there was insufficient evidence to link any of the 27 health outcomes researched to any kind of exposure in the Southwest Asia theater of operations, let alone to burn pits specifically.12

    It is unclear how much more research the VA needs to do before it can make a concrete policy on burn-pit care and compensation. But meanwhile, members of Congress are getting impatient as their veteran constituents battle 43 types of cancer.13 Congressman Raul Ruiz (D-CA), who is a Harvard-trained emergency room doctor, told CBS News in 2019:

    There is enough! There is enough to act on. When people are exposed to an illness, and they come in dying on a gurney in the emergency department, you don't have to wait for that pristine science to determine that this patient is sick, and they're dying, and you need to act on it and take care of the veteran—the patient. That should be our commonsense approach when you put veterans in the center of the VA system.14

    Similarly, Congressman Mike Bost (IL-R), ranking Republican on the House VA subpanel, went on record with Stars and Stripes saying:

    The scientific evidence everywhere is clear―these [burn pits] cause health hazards. Why is it so difficult for us to get the VA to understand? We have the evidence over and over and I feel we’re beating a dead horse . . . We’re continuing down this rat hole when we should already be in the situation of taking care of veterans. The VA says they aren’t sure. Everybody else in the world is sure.15

    Congressman Ruiz sees a parallel in American history with the use of Agent Orange in the Vietnam War. Some veterans who were exposed to the powerful herbicide, which was sprayed widely to kill jungle foliage, got sick years later and their fight for VA benefits took decades to win.16 Dr. Patricia Hastings, deputy chief consultant of post-deployment health services for the VA, said veterans won’t have to “wait 40 years” for the VA to address burn pit exposure like Vietnam veterans did with exposure to Agent Orange.17 Former VA Secretary David Shulkin says the VA should make it easier for veterans right now. On September 29, 2020, he told Fox News:

    We put the burden of proof back on the people who need our help, and who are sick. And, we make them show us the scientific evidence and the documentation about how they were injured. . . .We have a system today that's adversarial, where the veteran has to fight, sometimes for years, and appeal over and over again, just to get what's due to them.18

    It appears Congress is done waiting for the VA’s research to catch up. Mr. Shulkin’s remarks came days after three pieces of burn pit legislation were introduced in both houses of Congress,19 and another burn pit-focused bill was introduced in the Senate back in July.20 The proposed bills call for the creation of toxic exposure review commissions, mandatory reporting by both the DoD and the VA, burn pit-specific training for VA staff and medical personnel, and most significantly, the presumption of service connection for certain medical conditions suffered by veterans who served overseas in a specific place at a specific time when burn pits were known to be present. This presumption of service connection would accomplish Mr. Shulkin’s recommendation to take the burden of proof off the veteran and turn burn pit-related disability claims into a relatively quick records review instead of a decades’ long battle with bureaucracy.

    This article reviews the U.S. government’s past failures to protect America’s men and women in uniform from the literal dark cloud of burn pit-related illnesses and demonstrates how the recently proposed legislation could begin to right that wrong. It first explains what the presumption of service connection is.   It describes burn pits to provide context for the term’s usage throughout this article. The article then provides a chronological review of past government action on burn pits, including a short primer on DoD regulations and past congressional activities.  Finally, it reviews proposed government action and the legislation currently before Congress and explains how it would function to greatly support veterans currently unable to prove service connection for their burn pit-related illness(es) by removing that burden of proof.

    Presumption of Service Connection Defined

    Presumption of service connection exists when the VA presumes that certain disabilities were caused by military service. If a presumed condition is diagnosed in a veteran, the veteran can be granted lifelong medical care and disability compensation for that condition without having to prove the illness or injury is a direct result of active duty service; the veteran’s records must simply show he/she was in a certain place at a certain time. If the condition is not presumed service connected, then the veteran must prove the illness or injury occurred while in service to his/her country. To prove service connection, a veteran must show three things: (1) a current, chronic, diagnosed disability; (2) an in-service event, injury, or illness; and (3) a medical nexus between the disability and the in-service event, injury, or illness.21

    Burn pit disability claims are primarily filed by Gulf War veterans22 presenting with random, unrelated, but debilitating symptoms like fatigue, headaches, neurological, and respiratory symptoms that do not point to an identifiable medical condition.23 Because of this, the term “Gulf War Syndrome” was coined to represent this condition. Gulf War Syndrome is “any undiagnosed illness that warrants a presumption of service connection, as determined by the Secretary of Veterans Affairs,” which is determined on a case-by-case basis.24 Gulf War Syndrome is presumed service connected, but only applies to undiagnosed illnesses. Many veterans claiming burn pit-related ill health effects are diagnosed with specific illnesses like pancreatic cancer and emphysema, so they do not fall under Gulf War Syndrome and are therefore not presumed service connected. The sick veteran has the burden to prove his/her condition was caused by burn pit exposure, sometimes while dying. This is the “adversarial” system the proposed legislation seeks to eliminate.

    Burn Pits in Context

    Since hostilities began in Afghanistan and Iraq in 2001 and 2003 respectively, the U.S. military relied heavily on open-air burn pits to dispose of the solid waste generated by years of conflict.25 At its height, between 2009 and 2010, the DoD operated more than 300 burn pits in Iraq and Afghanistan.26 A 2011 study conducted by the Institute of Medicine (now National Academies of Sciences, Engineering, and Medicine) estimated that bases averaging more than 1,000 personnel created 30-42 tons of solid waste per day. Some bases housed as many as 10,000 to 25,000 personnel and burned an estimated 100-200 tons of solid waste per day.27 A 2010 Army Institute of Public Health study reported that large bases burn waste consisting of five to six percent plastics, six to seven percent wood, three to four percent miscellaneous noncombustible materials, one to two percent metals, and 81–84 percent combustible materials.28 Soldiers’ personal accounts indicate that they burned solid waste consisting of human body parts, plastics, hazardous medical material, lithium batteries, tires, hydraulic fluid, and vehicles.29 They also dowsed the pits with kerosene-based jet fuel to keep them burning 24 hours a day, seven days a week.30

    Back in 2006, Lieutenant Colonel Darrin Curtis, the Air Force Bioenvironmental Flight Commander at Joint Base Balad (JBB) in central Iraq, attempted to sound the alarm. He stated in an official memorandum, “[b]urn pits may have been an acceptable practice in the past, however, today’s solid waste contains materials that were not present in the past that can create hazardous compounds.”31 The purpose of Curtis’s memo was to inform his superiors that JBB’s burn pits created an “operational health risk to those that have been, are now, and will be deployed to [JBB].”32 JBB’s Air Force Chief of Aeromedical Services seconded the Commander’s memo, stating, “[i]n my professional opinion, the known carcinogens and respiratory sensitizers released into the atmosphere by the burn pit present both an acute and chronic health hazard to our troops and the local population.”33

    For context, JBB’s burn pit occupied approximately 10 acres of land and processed 250 tons of solid waste per day since 2003.34 It generated enormous plumes of black and green smoke that carried into service members’ living quarters.35 According to Lt. Col. Curtis, this smoke contained 21 possible contaminants including arsenic, benzene, and formaldehyde.36 Nevertheless, JBB’s burn pit smoldered on for three more years until it was permanently closed in October 2009. Later, a 2011 Institute of Medicine study detected 47 pollutants in at least five percent of JBB’s air monitoring samples.37

    A Review of Past Government Action on Burn Pits

    Department of Defense Actions 2006 to 2009

    A review of DoD regulations suggests that officials were aware of the health risk posed by open-air burn pits and instructed that they be short term or avoided entirely. Technical Bulletin 593, published in 2006, states that soldiers should only use open burn pits in “emergency situations” because they can lead to “significant environmental exposures.” 38 Shortly thereafter, U.S. Central Command (CENTCOM) issued more developed environmental policies in the form of fragmentary orders (FRAGOs) to U.S. forces in Iraq.39  These FRAGOs included limited guidance on burn pit operations, other than to discourage their use.40 In April 2009, Multi-National Corp Iraq (MNC-I) revised CENTCOM’s guidance into an Environmental Standard Operating Procedure (SOP) with operating instructions for soldiers to follow.41 In September 2009, U.S. Forces-Afghanistan (USFOR-A) also issued specific instructions for burn pit operations.42 These instructions stated that open burn pits are the “least desirable method” of solid waste disposal and should be used only until more suitable methods can be developed.43 In fact, USFOR-A’s guidance explicitly declares, “open burning will not be the regular method of solid waste disposal.”44

    Also in September 2009, CENTCOM published Regulation 200-2 as a comprehensive solid waste management guide for all base commanders. This regulation applies to all service members, DoD civilians, and DoD contractors operating within CENTCOM’s geographic area (Iraq and Afghanistan), but does not apply to the entire DoD.45 Regulation 200-2 acknowledges that “burn pits inherently create health issues and should be terminated as soon as practical in order to protect the life, health and safety of USCENTCOM and coalition personnel.”46 Nevertheless, this regulation permits the use of burn pits for solid waste disposal in contingency operations, but warns that “[b]urning waste (burn pits) gives off toxic fumes that can affect the life, health and safety of USCENTCOM and coalition forces.”47  Given the acknowledged risk of these operations, CENTCOM requires that “[i]f a burn pit is used, [the commander must] develop a plan to transition to an incinerator as the camp matures and population increases.”48

    Congressional Actions 2009 to 2012

    Emerging law at the time suggests concern over burn pits was growing on Capitol Hill. Earlier in 2009, eight members of Congress voiced their concern over burn pit-related environmental health hazards. They sent a letter to the Director of the Directorate of Clinical Sciences for the Armed Forces Institute of Pathology seeking cancer data from the DoD tumor registry to compare with burn pit exposure data.49 The letter announced:

    It has come to our attention that a growing number of troops who served in Iraq and Afghanistan are becoming sick and dying from what appears to be overexposure to dangerous toxins produced by burn pits used to destroy waste. It has further been reported that scores of returning veterans who were exposed to burn pits display similar symptoms: chronic bronchitis, asthma, sleep apnea, chronic coughs and allergy-like symptoms.  Several also have cited heart problems, lymphoma and leukemia.50

    Shortly thereafter, the National Defense Authorization Act (NDAA) for Fiscal Year 2010 addressed the military’s piecemeal burn pit regulations and CENTCOM 200-2.51 Section 317 of the 2010 NDAA required the DoD to promulgate regulations prohibiting the disposal of hazardous and medical waste in open-air burn pits during contingency operations, “except in circumstances where the Secretary of Defense determines that no alternative disposal method is feasible.”52

    In 2011, several members of Congress raised their voices by introducing a bipartisan bill, the Open Burn Pit Registry Act, in the Senate.53 Both the Senate and the House passed the bill in December 2012.  President Obama then signed the bill in January 2013, requiring the establishment of an open burn pit registry as part of a larger veterans package outlined in the “Dignified Burial and Veterans' Benefits Improvement Act of 2012.”54 The bill mandates that the VA create a registry similar to the Agent Orange and Gulf War registries to help patients, doctors, and the VA itself determine to what extent burn pit-related air pollution has led to medical diseases in veterans. In 2014, the VA brought the Airborne Hazards and Open Burn Pit Registry online as a secure database to allow eligible veterans and service members to voluntarily document their exposures and report health concerns via a questionnaire.55 Eligible veterans and service members currently include those who served in Operations Desert Shield and Desert Storm; Operations Enduring Freedom (Afghanistan), Iraqi Freedom, and New Dawn (Iraq); and those who served in Southwest Asia after August 2, 1990 and Djibouti, Africa after September 11, 2001.56 As of August 20, 2020, a total of 212, 829 veterans had registered with the VA’s Airborne Hazards and Burn Pit Registry.57

    Also in 2012, Section 316 of that year’s NDAA amended Section 317 of the 2010 NDAA to require health assessment reports on each open-air burn pit operating at a location where 100-plus personnel have lived for 90 consecutive days or more.58

    Government Oversight Actions 2012 - 2015

    For checks and balances, from 2012 to 2014 the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR) assessed the DoD’s use of incinerators and open-air burn pits on four bases. SIGAR determined that Forward Operating Bases (FOB) Salerno and Sharana continued using their burn pits despite the installation of incinerators because inadequate planning, construction, and operational considerations caused the incinerators to be impractical or unusable.59

    FOB Salerno’s incinerators gave off too much light during the night for the “black-out base”60 to operate it safely, so it ran only in daylight hours, which limited its processing to only 57 percent of the base’s daily solid waste.61 The base continued using open-air burn pits to make up the difference.62 At FOB Sharana, SIGAR discovered that two 40-ton capacity incinerators were installed even though the contract only called for an incinerator capable of processing 24 tons of solid waste per day.63 Despite construction costs amounting to $5 million, the oversized incinerators were improperly installed.64 Loading areas built too narrow to fit the equipment necessary to move the solid waste and ejected ash resulted in FOB Sharana’s incinerators only being able to process an average of 80 percent of its daily solid waste, and at personal risk to the soldiers who had to move waste and ash via wheelbarrow.65 When it was estimated that it would cost more than $1 million to make the necessary repairs, base officials decided not to operate the incinerators and reverted back to using open-air burn pits.66

    Other examples included two out of four incinerators sitting idle at Camp Leatherneck because no contract was awarded to operate and maintain them, and incinerators being delivered to bases with already existing faults like rusted motors, leaking hydraulic lines, and electrical wiring not up to code.67 The U.S. Army Corps of Engineers stated that the incinerators may be transferred to the customer with minor deficiencies. In multiple cases, however, deficiencies were estimated to cost more than $1 million to repair and base officials determined that was too expensive, so they were never corrected and the incinerators were never used.68

    Finally, SIGAR reported that U.S. bases in Afghanistan did not always adhere to CENTCOM Regulation 200-2 or the DoD’s Instruction 4715.19 (DoDI 4715.19) regarding burn pits (discussed below). In fact, CENTCOM officials told SIGAR that “no U.S. installation in Afghanistan has ever complied with CENTCOM 200-2” because the regulation clearly states that, when an installation exceeds 100 personnel or operates for more than 90 days, it must develop a plan for installing waste disposal technology so that open-air burn pits may cease.69 Furthermore, SIGAR reported that multiple bases continued to burn hazardous materials long after regulations prohibited doing so.

    Congressional Actions 2019

    Four years later, after no significant DoD or Congressional actions in the interim, Section 355 of the 2019 NDAA required the Secretary of Defense to report to Congress the details of any ongoing use of open burn pits and the feasibility of phasing them out by using incinerators.70 In its April 2019 report, the DoD explained that it “minimizes solid waste generation and disposal during contingency operations to protect the health and safety of our men and women in uniform” and strictly prohibits the use of open-air burn pits to short-term contingency operations “where no feasible alternative exists.”71 The DoD pointed to its latest regulation on the matter, DoDI 4715.19 Use of Open-Air Burn Pits in Contingency Operations, which states: “The DoD [u]ses an open-air burn pit as a short-term solution during contingency operations where no alternative is feasible. For the longer term, incinerators, engineered landfills, or other accepted solid waste management practices must be used whenever feasible.”72 Given that this has been the DoD’s stance all along, yet open burn pits persisted anyway, it begs the question, what is the DoD’s standard of feasibility? No law, regulation, or FRAGO ever defines a standard, but on JBB in Iraq ― where newly built infrastructure included indoor and outdoor swimming pools ― burn pit operations lasted for six years. On December 20, 2019, President Trump signed the National Defense Authorization Act (NDAA 2020) into law. It included four sections relevant to open burn pits. Section 333, Plan to Phase Out Use of Burn Pits, requires that the Secretary of Defense submit a plan to phase out the use of burn pits to congressional defense committees within one year of the enactment of the NDAA.73 Specifically, the Secretary must phase out the use of the nine active burn pits the DoD reported to Congress in 2019.74

    Section 334, Information Relating to Locations of Burn Pit Use, requires the Secretary of Defense to submit a list of all locations where open-air burn pits have been used to the Secretary of the VA.75 The list of locations is directed for the purposes of augmenting research, healthcare delivery, disability compensation, and other activities of the VA.76

    Section 704, Exposure to Open Burn Pits and Toxic Airborne Chemicals of Other Airborne Contaminants As Part of Periodic Health Assessments and Other Physical Examinations, requires, among other things, that the DoD include determining whether a soldier was based at a location where a burn pit was present in all annual, post-deployment, and separation/retirement physicals.77

    Section 705, Enhancement of Recordkeeping With Respect to Exposure By Members of the Armed Forces to Certain Occupational and Environmental Hazards While Deployed Overseas, requires that the DoD have access to the information contained in the VA’s Airborne Hazard and Open Burn Pit Registry created under Section 201 of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012 (Public Law 112–260; 38 U.S.C. 527 note).78

    Although the 2020 NDAA imposes several requirements on the DoD, the April 2019 Open Burn Pit Report to Congress (discussed above) remains the most recent report submitted as of this writing. Additionally, the 2020 NDAA hides within it an outmoded flaw: in Section 704, “open burn pit” is defined as having the meaning given the term in Section 201(c)(2) of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012.79 This definition is problematic because that 2012 Act defines “open burn pit” as an area of land located in Afghanistan or Iraq that is designated by the Secretary of Defense to be used for disposing of solid waste by burning it in the open air, and where there is no incinerator or other commercial equipment designed for the task.80 By this definition, open burn pits only exist in Iraq and Afghanistan and not the several other countries recognized by the VA as being part of the Gulf War, which is not the case.81 By this definition, physical exams will only capture data on veterans who served in Iraq and/or Afghanistan, which would create an inaccurate picture of burn pit-related health effects by omitting the ill veterans who served in many other locations around the world. 

    A Review of Proposed Government Action on Burn Pits

    On July 30, 2020, Senator Thom Tillis (R-NC) introduced the Toxic Exposure in the American Military Act of 2020 (“TEAM Act of 2020” S. 4393) intended “[t]o improve the provision of health care and other benefits from the Department of Veterans Affairs for veterans who were exposed to toxic substances, and for other purposes.”82 The proposed bill would expand healthcare and benefits for veterans exposed to toxic substances, require research to analyze veteran exposure to toxic substances and reporting to a review commission, and improve resources for veterans regarding exposure to toxic substances.83

    Section 101 of S. 4393 seeks to amend Subchapter II of chapter 17 of Title 38, United States Code by adding Section 1720J for greater consultation, testing, and treatment of “covered veterans.” In this case, a “covered veteran” is a veteran who, during military service inside or outside the United States, (1) received hazardous duty pay and (2) was identified by the Secretary of Defense as having possibly been exposed to (A) an open burn pit; (B) a toxic substance; or (C) toxic substances at a specific site previously identified by the DoD and the VA as having toxic substances present.84

    Section 101 also defines “open burn pit” as having the meaning given the term in Section 201(c)(2) of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012.85 Again, that 2012 Act defines “open burn pit” as being an area of land in Afghanistan or Iraq.86 By this definition, covered veterans would include only those who were exposed to a burn pit in Iraq or Afghanistan.

    The big-ticket item of S. 4393 is Section 103, “Presumptions of service connection for diseases associated with exposure to toxic substances.”87 Section 103 is the first legislation calling for a presumption of service connection for veterans suffering burn pit-related diseases. Specifically, Section 103 would permit a presumption of service connection for diseases that have a positive association with a toxic substance that became manifest within a specified period of time, regardless of whether there is a record or evidence to prove such exposure occurred.88 The passing of this bill would therefore mean that veterans no longer had the burden of proof to show that their medical condition was caused by their service in the military. Veterans would simply need to provide official records showing that they were in the right place at the right time (or the wrong place at the wrong time, depending on one’s perspective). S. 4393 currently rests with the Senate Committee on Veterans’ Affairs.

    On September 15, 2020, Senator Dan Sullivan (R-AK) introduced a bill (S. 2950) to amend Title 38, United States Code, “to concede exposure to airborne hazards and toxins from burn pits under certain circumstances, and for other purposes.”89 He and the 28 co-sponsors to this bill, entitled the Veterans Burn Pit Exposure Recognition Act of 2020, assert that some members of the military who served in certain locations may now be suffering ill health effects due to their service near burn pits.90 The bill goes on to acknowledge that the locations of all current and past burn pits, and the scope of health effects associated with exposure, is a topic of much debate and ongoing investigation, and that the full scope of those health effects may never be known.91

    The bill proposes that, in the interim, the VA disability claims of those veterans already adversely affected by their exposure to burn pits can be reviewed on a case-by-case basis.92 The sense of Congress is that, “if it is determined that a veteran was deployed to a covered location during a certain period, the Secretary of Veterans Affairs should ’concede’ that the member or veteran was exposed to certain toxic substances, chemicals, and hazards.”93 Covered locations and corresponding time periods would include the following:

    (A)    Iraq and the following periods:

    i.   The period beginning on August 2, 1990 and ending on February 28, 1991.

    ii.   The period beginning on March 19, 2003 and ending on such date as the Secretary determines burn pits are no longer used in Iraq.

    (B)    The Southwest Asia Theater of operations, other than Iraq, and the period beginning on August 2, 1990, and ending on such date as the Secretary determines burn pits are no longer used in such location, including the following:

    i.   Kuwait.

    ii.   Saudi Arabia.

    iii.   Oman.

    iv.   Qatar.

    (C)    Afghanistan and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Afghanistan.

    (D)   Djibouti and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Djibouti.

    (E)    Syria and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Syria.

    (F)    Jordan and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Jordan.

    (G)   Egypt and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Egypt.

    (H)   Lebanon and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Lebanon.

    (I)      Yemen and the period beginning on September 11, 2001 and ending on such date as the Secretary determines burn pits are no longer used in Yemen.

    (J)     Such other locations as are set forth by the Airborne Hazards and Open Burn Pit Registry established under Section 201 of the Dignified Burial and Other Veterans' Benefits Improvement Act of 2012 (Public Law 112–260; 38 U.S.C. 527 note) and corresponding periods set forth in such registry.

    (K)    Such other locations and corresponding periods as the Secretary, in collaboration with the Secretary of Defense, may determine appropriate in a report the Secretary of Veterans Affairs shall submit to Congress not later than two years after the date of the enactment of the Veterans Burn Pits Exposure Recognition Act of 2020 and not less frequently than once every two years thereafter.94

    To make this list work, S. 2950 includes its own definition of burn pit: “an area of land that is used for disposal of solid waste by burning in the outdoor air,” which was necessary to overcome the location limitations of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012.95

    Although the bill does not list any specific illnesses, it does list 50 toxic substances, chemicals, and airborne hazards that veterans “shall be considered to have been exposed to” if they served in those locations during those time periods.96 Essentially, S. 2950 would create a presumption of service connection without stating it outright.

    S. 2950 hasn’t progressed through Congress since it was referred to the Committee on Veterans Affairs and placed on the Senate Legislative Calendar on September 15, 2020. Furthermore, the bipartisan bills discussed below contain and expand on S. 2950’s mandates to create an outright presumption of service connection that, if passed, would likely supplant S. 2950 entirely.

    Also on September 15, 2020, both houses of Congress introduced their versions of the Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020. Congressman Raul Ruiz (D- CA) introduced H.R. 8261 and Senator Kirsten Gillibrand (D-NY) introduced S. 4572, “to amend title 38, United States Code, to provide for a presumption of service connection for certain diseases associated with exposure to toxins, including emissions from open burn pits, and for other purposes.”97 These bills would provide real relief for veterans suffering the ill health effects of burn pit exposure that have so far been unable to prove service connection.

    Both bills seek to add Section 1119 to create a presumption of service connection for certain diseases believed to be associated with exposure to open burn pits and other toxins.98 Those diseases include: cancer of any type, asthma, chronic bronchitis, chronic obstructive pulmonary disease, constrictive bronchiolitis or obliterative bronchiolitis, emphysema, granulomatous disease, interstitial lung disease, lymphoma, pleuritis, pulmonary fibrosis, and sarcoidosis diagnosed after 15 or more cumulative days of service in a country or territory listed under paragraph (4)(B).99

    Paragraph (4)(B) of H.R. 8261 lists the following locations: Afghanistan, Bahrain, Burkina Faso, Cameroon, Chad, Diego Garcia, Djibouti, Egypt, Ethiopia, Gabon, Ghana, Iraq, Jordan, Kenya, Kuwait, Kyrgyzstan, Libya, Mali, Niger, Nigeria, Oman, Pakistan, Philippines, Saudi Arabia, Somalia, South Sudan, Sudan, Syria, Tajikistan, Tunisia, United Arab Emirates, Uzbekistan, and Yemen.100 Paragraph (4)(B) of S. 4572 adds Turkey to that list.101 Notably, this lengthy list of potential burn pit locations far exceeds Iraq and Afghanistan and the VA’s definition of Gulf War service locations; it even surpasses the list of “covered locations” listed in S. 2950 above.

    Interestingly, outside of its use in the main title and the title of added Section 1119, S. 4572 makes no other reference to burn pits. In contrast, H.R. 8261, though nearly identical, includes the term “burn pit” five more times than S. 4572. This may explain why S. 4572 does not bother to define “burn pit” at all. Conversely, H.R. 8261 defines “open burn pit” with a modified version of the meaning set forth in Section 201(c)(2) of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012 by deleting its reference to Iraq or Afghanistan.102 It appears the House recognized that direct adoption of that definition is no longer appropriate (yet it persists in the 2020 NDAA103 and the TEAM Act of 2020104).

    Definitions potentially of great importance, however, are at play in Section 4 of the proposed bills. The House’s terms for information sharing in H.R. 8261 Section 4, Access of the National Academies of Sciences, Engineering, and Medicine to Information from the Department of Defense, specifically requires information sharing between the DoD and the National Academies.105 In contrast, the Senate’s almost identical bill broadens the terms of information sharing to include all “federal agencies.”106

    At first blush, this broader provision seems like a good thing because all hands on deck could be helpful to getting veterans the care they need. But, Section 4 of S. 4572 defines “federal agency” as having the same meaning of the term defined in Section 551 of title 5, United States Code.107 Section 551 of title 5, United States Code, defines federal agency as “each authority of the government of the United States, whether or not it is within or subject to review by another agency, but does not include . . . (G) Military authority exercised in the field in a time of war or in an occupied territory.”108 This creates a significant loophole through which the DoD can withhold any information it wants to on burn pits used in a time of war or in an occupied territory, which is nearly all of them.  Therefore, the only way to ensure complete information access, and therefore accurate data analysis by the National Academies, is to use H.R. 8261’s specificity requiring DoD to share all burn pit-related information regardless of whether it is borne from the exercise of wartime or occupation decision-making.

    Each bill was introduced on September 15, 2020, and both were referred to the respective Committee on Veterans Affairs on that same day. H.R. 8261, however, was also referred to the Committees on Armed Services and Education and Labor.

    Conclusion

    In August of 1998, the Executive Office of President Bill Clinton published Presidential Review Directive 5, which said:

    We have a national obligation to protect to the extent possible the health of our military, veterans, and their families. Those we place in harm’s way to protect the national interest deserve the best. The 1991 Gulf War highlighted both our successes and failures. Even though the number of casualties, in the traditional sense, was low, Federal agencies responsible for the health of our troops were not prepared to deal with the health issues that followed the War’s completion.109

    A decade later, the VA was still unprepared, this time to the detriment of the post-9/11 era veteran. Another decade later, veterans sick from burn pit exposure are still fighting for care and benefits, with a 78 percent failure rate. When it comes to burn pit-related illnesses, the VA seeks concrete proof that “A” definitively caused “B,” which may never be known. But the health risks of burn pit exposure seem not even to be in question. A review of DoD regulations illustrates that officials were aware of the risks. A review of congressional activities and reports from the Inspector General demonstrates that they were aware of both the risks and DoD’s knowledge of the risks.110 At this point, no one seems to doubt that burn pit exposure is hazardous to human health, but multiple studies, costing millions of taxpayer dollars, have all resulted in a need for more research to specifically connect “A” to “B”. Meanwhile, veterans are battling both the VA and disease at the same time ― and losing.

    The legislation proposed by both houses of Congress, S. 4572 and H.R. 8261, would create a presumption of service connection for burn pit-related illnesses, but only H.R. 8261 appropriately modernizes its definition of “burn pit” and ensures that its information sharing directive specifically requires the DoD to provide the National Academies with any information they determine useful in conducting their burn pit research and reviews.

    By creating a presumption of service connection, H.R. 8261 means veterans would simply need to show they served in a certain place at a certain time and now suffer from a certain otherwise unexplained illness, rather than prove “A” definitively caused “B”. Eliminating that burden of proof removes a mountainous barrier to care that suffering veterans shouldn’t have to climb. In a statement to The Army Times in 2008, Lt. Col. Curtis said, “[t]he proof is in the pudding. All the environmental sampling in the world is a secondary standard to . . . the primary standard: Are people getting sick?”111 The answer is yes, and that should be enough. 

    1. Shira Kramer, Ph.D., Epidemiology International, Statement for Press Conference on Proposed Burn Pit Legislation (June 11, 2009).
    2. Id.
    3. Id.
    4. Id.
    5. Iraq and Afghanistan Veterans of America, 2020 10th annual Member Survey (Oct. 12, 2020), https://iava.org/survey2020/. The VA Airborne Hazards and Open Burn Pit Registry will be discussed in further detail below.
    6. Beynon, S., VA denied about 78 percent of disability claims from burn pits, Stars and Stripes, Sept. 23, 2020,  https://www.stripes.com/news/veterans/va-has-denied-about-78-of-disability-claims-from-burn-pits-1.646181.
    7. Id.
    8. In response to concerns about the health effects of deployments following the 1991 Gulf War, Congress and the Institute of Medicine recommended that DoD conduct prospective epidemiological research to evaluate the impact of military exposures, including deployment, on long-term health outcomes. The Millennium Cohort study began in 2001 and includes more than 200,000 veteran participants. More information is available at https://www.millenniumcohort.org.
    9. Department of Defense Armed Forces Health Surveillance Center, Epidemiological Studies of Health Outcomes among Troops Deployed to Burn Pit Sites (May 2010).
    10. VA/DoD Joint Executive Council Annual Report Fiscal Year 2010, at 10 (Sept. 30, 2010).
    11. CENTCOM Regulation 200-2, Environmental Quality, CENTCOM Contingency Environmental Guidance Sec. 13-2(a) Environmental Responsibilities (2009) [hereinafter CENTCOM 200-2]; Department of Defense Armed Forces Health Surveillance Center, Epidemiological Studies of Health Outcomes among Troops Deployed to Burn Pit Sites, at 4 (May 2010).
    12. National Academies of Sciences, Engineering, and Medicine, Respiratory Health Effects of Airborne Hazards Exposures in the Southwest Asia Theater of Military Operations (2020), Washington, DC: The National Academies Press, https://doi.org/10.17226/25837. The National Academy of Sciences, National Academy of Engineering, and National Academy of Medicine (formerly the Institute of Medicine) collectively form the National Academies of Science, Engineering, and Medicine, which is an organization of private, nonprofit, independent experts who research the nation’s challenges and provide objective advice to the federal government to inform policy for government action. More information is available at https://www.nationalacademies.org.
    13. Burn Pits 360 Veterans Organization, Burn Pits 360 Registry Self-Reported Symptoms & Illnesses (2020).
    14. CBS News, Thousands of veterans fear “burn pits” exposed them to lethal disease (Aug. 17, 2019), https://www.cbsnews.com/news/burn-pit-military-lung-disease-thousands-of-veterans-fear-burn-pits-exposed-them-to-lethal-disease-2019-08-17/.
    15. Beynon, supra n. 6.
    16. CBS News, supra n. 14.
    17. Beynon, supra n. 6.
    18. Chiaramonte, P., Fox News, David Shulkin: VA needs to secure relief for burn pit veterans (Sept. 29, 2020), https://www.foxnews.com/politics/david-shulkin-veterans-burn-pits-va-relief.
    19. Veterans Burn Pit Exposure Recognition Act of 2020, S. 2950, 116th Cong. (Sept. 15, 2020); Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, H.R. 8261, 116th Cong. (Sept. 15, 2020); Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, S. 4572, 116th Cong. (Sept. 15, 2020).
    20. Toxic Exposure in the American Military Act of 2020 (TEAM Act of 2020), S. 4393, 116th Cong. (July 30, 2020).
    21. Military Disability Made Easy, VA Presumptive List (Oct. 14, 2020 12:16PM), https://militarydisabilitymadeeasy.com/vapresumptivelist.html.
    22. U.S. Department of Veterans Affairs, “Presumptive Disability Benefits” (Nov. 2018); the VA defines Gulf War veterans as veterans who served on active duty in the Southwest Asia theater of military operations any time from August 2, 1990 to the present; U.S. Department of Veterans Affairs, Public Health, Gulf War Service (Oct. 14, 2020 12:46PM), https://www.publichealth.va.gov/exposures/gulfwar/military-service.asp.
    23. Military Disability Made Easy, supra n. 21 .
    24. U.S. Department of Veterans Affairs, supra n. 22.
    25. U.S. Gov’t Accountability Office, GAO-11-63, Afghanistan and Iraq: DOD Should Improve Adherence to Its Guidance on Open Pit Burning and Solid Waste Management 8 (Oct. 2010).
    26. Id. at 9.
    27. Institute of Medicine, Long-term health consequences of exposure to burn pits in Iraq and Afghanistan, Summary Report (2011). Statistical data collected at the height of occupation in 2007.
    28. Id.
    29. NPR, The ‘Burn Pits’ of Iraq and Afghanistan (aired Jan. 31, 2010); Toxic Trash: The Burn Pits of Iraq and Afghanistan, Oxford American Magazine, (Aug. 24, 2011).
    30. Id.
    31. Memorandum from Darrin L. Curtis, Lt. Col., USAF, BSC, Bioenvironmental Engineering Flight Command to 332 EAMDS/SGP (20 December 2006).
    32. Id.
    33. Memorandum from James R. Elliot, Lt. Col., USAF, MC, SFS, Chief, Aeromedical Services to 332 EAMDS/SGP (20 December 2006).
    34. Kennedy, K., Study: Health effects from military burn pits inconclusive, USA Today (Oct. 31, 2011). USA Today reported that JBB burned solid waste containing unexploded ordinance, medical waste, Styrofoam, petroleum products, plastic water bottles, rubber, diesel engines, paint, solvents, and computer parts.
    35. Id.; Training Letter 10-03 from the Department of Veterans Affairs (reference No. 211A) to All VA Regional Offices (Apr. 26, 2010).
    36. Curtis, supra n. 31. Lt. Col. Curtis indicated in his letter that “[a] list of possible contaminants includes: acetaldehyde, acrolein, arsenic, benzene, carbon dioxide, carbon monoxide, dichlorofluoromethane, ethylbenzene, formaldehyde, hydrogen cyanide, hydrogen chloride, hydrogen fluoride, metals, nitrogen dioxide, phosgene, sulfuric acid, sulfur dioxide, toluene, trichloroethane, trichloropropane, and xylene.”
    37. Institute of Medicine, supra n. 27.
    38. U.S. Army Technical Bulletin, TB MED 593, “Guidelines for Field Waste Management,” (September 2006); GAO Report, supra n. 25, at 10.
    39. GAO Report, supra n. 25, at 10. U.S. Central Command (CENTCOM) is one of the 11 unified combatant commands of the DoD. Combatant commands are major joint military command groups that direct activities with U.S. and allied forces to enable operations in specific regions, or “areas of responsibility” (AOR). CENTCOM’s AOR is primarily the Middle East and Southwest Asia.
    40. Id.
    41. Id. at 11.
    42. Id.
    43. Id. at 11.
    44. Id.
    45. Id. at 12.
    46. CENTCOM Regulation 200-2, supra n. 11.
    47. Id. at Sec. 3-2(g) (4)(d) Environmental Compliance.
    48. Id.
    49. Congress members: Tim Bishop, Raul Grijalva, John Hall, Maurice Hinchey, Dennis Kucinich, James McGovern, Chellie Pingree, and Carol Shea-Porter. Letter from Congressman Tom Bishop, et al. to Christopher R. Owner, Ph.D., Director, Directorate of Clinical Sciences, Armed Forces Institute of Pathology requesting tumor pathology reports (Mar. 3, 2009).
    50. Id.
    51. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 317, 123 Stat. 2190, 2249 (Oct. 28, 2009); See also GAO Report, supra n. 25, at 12.
    52. Id.; See also GAO Report, supra note 25, at 12-13. Since 1961, the National Defense Authorization Act (NDAA) is the name for each of a series of United States federal laws specifying the annual budget and expenditures of the U.S. Department of Defense.
    53. Open Burn Pit Registry Act of 2011, S. 1798, 112th Cong. (2011).
    54. Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012, Pub. L. No. 112-260, § 201, 126 Stat 2417, 2422 (Jan. 10, 2013).
    55. VA’s Airborne Hazards and Open Burn Pit Registry (Nov. 10, 2020), https://www.publichealth.va.gov/exposures/burnpits/registry.asp.
    56. Id.
    57. Id.
    58. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 316, 125 Stat. 1298, 1358-1359 (Dec. 31, 2011).
    59. Special Inspector General for Afghanistan Reconstruction (SIGAR) 15-33-AL, Final Assessment: Incinerators and burn pits in Afghanistan (2015).
    60. A “black-out base” is one in which the base limits all light emissions to avoid creating targets for insurgent rocket fire.
    61. SIGAR, supra n. 59, at 3.
    62. Id.
    63. Id. at 4.
    64. Id.
    65. Id.
    66. Id.
    67. Id. at 3, 6.
    68. Id.at 7.
    69. Id. at 9.
    70. National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, § 355 (Jan. 3, 2018).
    71. Under Secretary of Defense for Acquisition and Sustainment, Department of Defense Open Burn Pit Report to Congress 1 (April 2019).
    72. DoDI 4715.19, § 1.2(a) (issued on February 15, 2011; changed March 27, 2014; amended November 13, 2018).
    73. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 333, 133 Stat. 1198, 1315 (Dec. 20, 2019).
    74. Id. In its most recent report to Congress, in April 2019, the DoD listed nine active burn pits: seven in Syria, one in Afghanistan, and one in Egypt.
    75. Id.
    76. Id.
    77. Id. at 1438.
    78. Id. at 1440.
    79. Id. at 1438.
    80. Dignified Burial and Other Veterans’ Benefits Improvement Act, supra n. 54, at 2423.
    81. According to the VA, Gulf War service includes service in Iraq, Kuwait, Saudi Arabia (and the neutral zone between Saudi Arabia and Iraq), Bahrain, Qatar, The United Arab Emirates, Oman, Gulf of Aden, Gulf of Oman, the waters of the Persian Gulf, Arabian Sea, and the Red Sea, as well as the airspace above these locations; U.S. Department of Veterans Affairs, Public Health, Gulf War Service (Oct. 14, 2020), https://www.publichealth.va.gov/exposures/gulfwar/military-service.asp.
    82. TEAM Act of 2020, supra n. 20.
    83. Id.
    84. Id. at Sec. 101(c).
    85. Id. referencing the Dignified Burial and Other Veterans’ Benefits Improvement Act, supra n. 54, at 2423.
    86. Dignified Burial and Other Veterans’ Benefits Improvement Act, supra note 54, at 2423.
    87. SIGAR, supra n. 59.
    88. TEAM Act, supra n. 20  at Sec. 103(a).
    89. Veterans Burn Pit Exposure Recognition Act of 2020, S. 2950, 116th Cong. (Sept. 15, 2020).
    90. Id. at Sec. 2(a)(1).
    91. Id. at Sec. 2(a)(3).
    92. Id. at Sec. 2(a)(4).
    93. Id. at Sec. 2(b)(1).
    94. Id. at Secs. 3(b)(1)(A)-(K).
    95. Id. at Sec. 3(e).
    96. Id. at Sec. 3(a), 3(c).
    97. Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, H.R. 8261, 116th Cong. (Sept. 15, 2020); Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, S. 4572, 116th Cong. (Sept. 15, 2020).
    98. Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, H.R. 8261, 116th Cong. (Sept. 2020) at Sec. 2(a).
    99. Id.
    100.   Id. referring to § 1119(4)(B) of amended Subchapter II of chapter 11 of title 38, United States Code.
    101.  Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2020, S. 4572, 116th Cong. (Sept. 15, 2020) at Sec (4)(B)(xxxi); the bill’s one-page pamphlet published by both offices also includes Turkey.
    102.   H.R. 8261, supra n. 98, at Sec 2(e).
    103.   Dignified Burial and Other Veterans’ Benefits Improvement Act, supra n. 54, at 2423.
    104.   TEAM Act of 2020, supra n. 20, at Sec. 101(c).
    105.   H.R. 8261, supra n. 98, at Sec 4(a).
    106.   S. 4572, supra n. 97, at Sec 4(a).
    107.   Id. at Sec 4(b).
    108.   Definitions, 5 U.S.C. § 551 (1)(G) [emphasis added].
    109.   Executive Office of the President, Presidential Review Directive 5 to the National Science and Technology Council (Aug. 1998).
    110.   SIGAR, supra n. 59. In SIGAR’s 2015 report, it remarked, “Given the fact that DoD has been aware for many years of the significant health risks associated with open-air burn pits, it is indefensible that U.S. military personnel, who are already at risk of serious injury and death . . . were put at further risk from potentially harmful emissions.”[emphasis added].
    111. Kennedy, supra n. 34, (quoting Darrin L. Curtis, Lt. Col, USAF, BSC, Bioenvironmental Engineering Flight Command  to 332 EAMDS/SGP Joint Base Balad).

    About the Author

    Carina L. Roselli is a medically retired Army Captain who served 17 years as a helicopter pilot and JAG. She now owns her own solo firm, CLR Law, PLLC, based out of Northern Virginia where she practices legacy planning, land use and equine law. Educated by her own experience, Ms. Roselli also offers pro bono assistance to service members and veterans going through military medical boards and the DoD/VA Integrated Disability Evaluation System (IDES).  She may be reached at [email protected].