Under many state laws, most firefighter cancer diagnoses related to a carcinogenic substance are presumed to be employment-related. Does the same logic apply to burn pit injuries in Iraq or Afghanistan?
Over 3.7 million War on Terrorism veterans were exposed to burn pits. Many of these individuals developed serious lung diseases and even cancer. Yet the Veterans Administration refuses to acknowledge a causal link. Some advocates believe research into firefighter injuries may change that outcome.
To study these effects, technicians at the Illinois Fire Service Institute sometimes set a “house” on fire and measure the toxins in the smoke. Some of the substances they have registered include volatile organic compounds (VOCs), polychlorinated biphenyls (PCBs), dioxins, plasticizers, flame retardants, polycyclic aromatic hydrocarbons (PAHs), carbon monoxide (CO), hydrogen fluoride, nitrogen oxides, sulfur dioxide, hydrogen cyanide (HCN), hydrogen chloride, heavy metals, and asbestos. Most of these substances are illegal to burn in the United States and most other countries.
Despite the mounting evidence of health hazards, Taji, Iraq still has an operational burn pit. There is also at least one burn pit in Afghanistan, according to the DoD.
The Story Behind Iraq Burn Pits
The Middle East climate is very hard on those who are not used to it. The intense heat along with the blowing sand is enough to cause many breathing problems. For several decades, going back to the “Gulf War Syndrome” of the 1990s, the government has insisted that environmental factors alone caused veterans’ respiratory distress.
There are other factors at play, as well. In the 1990s, Iraqi strongman Saddam Hussein set fire to many of his country’s oil wells, blanketing much of the region with a thick toxic smoke. Roughly the same thing happened during the War on Terror in Iraq and Afghanistan, albeit on a more localized scale.
During the U.S. invasions in the early 2000s, thousands of servicemembers and contractors flooded these two countries. Aside from a few small bases in Saudi Arabia and some other quasi-friendly countries, these soldiers had almost no permanent facilities. Sanitation and trash disposal were especially a problem. Early on, several Iraqi bases ewere almost as big as some mid-sized U.S. cities. To dispose of trash, the DoD instructed contractors to dig huge open-air holes, throw every kind of trash into the hole, douse the contents with jet fuel, and light a match.
Army policy allows the use of such burn pits on a temporary basis when no other waste disposal method is available. In this case, “temporary” turned out to be several years. These pits remained operational well after 2006. That was the year Air Force Chief Medical Officer Lt. Col. James R. Elliott said the burn pits at Balad Air Base posed an “acute health hazard” to the contractors and servicemembers forced to breathe air laced with heavy metals, dangerous chemicals, and other hazardous materials.
The Connection Between Burn Pits and Serious Injuries
Dust and particulate matter often cause asthma and other relatively mild breathing problems. They most certainly do not cause cancer and some of the other serious injuries which relate to burn pits.
Beau Biden is perhaps the poster boy for this problem. The son of the then-Vice President served a tour in Iraq. When he returned, he developed a rare form of cancer, even though he had no family history of this disease. Doctors are fairly certain his cancer was environmental-related, and they point to open-air burn pits as the most likely cause. The inferno-like fires in many of these pits consumed paper waste, Styrofoam cups, medical waste, discarded tires, and pretty much anything else which, for some reason, no one wanted.
Based on evidence like this, the Department of Labor recently concluded that environmental factors alone could not account for the serious lung diseases that infected many returning contractors. That is especially true in many parts of Iraq and Afghanistan that are mountainous and rocky but not particularly dusty.
In addition to cancer, many returning veterans develop constrictive bronchiolitis (CB). CB is an extremely rare lung disease that is almost never found in young and healthy people. Essentially, tiny fibers constrict the airways inside the victim’s lungs. Because it is so rare, CB is easy to misdiagnose. Often, by the time doctors narrow down a cause for the person’s symptoms, the disease has already reached an advanced stage.
Even if climate or other issues partially caused the victim’s lung disease, the Defense Base Act may still provide benefits. If a pre-existing condition, such as asthma or chronic bronchitis, was aggravated or accelerated by the living and working conditions in Iraq or Afghanistan, benefits may be available under the DBA. The opinions of treating physicians will extremely important in establishing the causal connection between any symptoms or conditions and the work environment. Physicians have to be extremely specific in their opinions, whether a condition was caused or aggravated by solely environmental factors (heat, sandstorms), or whether other external factors were responsible, such as burn pits, toxic particulates in the air, etc.
DBA benefits are available to contractors who are injured overseas. They do not necessarily need to be U.S. citizens. For example, intelligence officers or translators may be foreign nationals. These individuals may be eligible for compensation.
Furthermore, the United States Supreme Court explicitly ruled that the injury does not need to take place while the victims are at their posts and during their shifts. Being a truck driver in Baghdad bears little resemblance to being a truck driver in Boston. In the United States, workers go home at the end of the day and essentially face no safety threats, but that is not the case in many overseas locations. A suicide bomber could attack a shopping mall just as easily as a supply convoy. Therefore, courts extended DBA coverage to almost all injuries that arise in-country.
There is an additional requirement. There must be a nexus between the injury and the contractor’s service. The connection need not be direct and unambiguous. For example, if a contractor is swimming partially for recreation and partially to prepare for a physical fitness exam, the DBA may apply to any swimming-related injuries.
To learn more about the kinds of compensation available, contact Barnett, Lerner, Karsen & Frankel, P.A.