Burn Pits 101: Service Members are Fighting Back

This is the second installment in the series on Burn Pits in Iraq & Afghanistan. For the first installment, see this blog post.

Service Members are Fighting Back

In 2010, over 60 lawsuits across the country were brought against the government contractor KBR relating to its operation of the burn pits in Iraq and Afghanistan. They were consolidated in In re KBR Inc. BurnPit Litigation, alleging that KBR exposed service members and civilian contract workers to harmful fumes from its unauthorized use of open-air burn pits, thereby causing various serious injuries. However, in June 2018, the 4th U.S. Circuit Court of Appeals ruled that the case could not move forward. The ruling was based on a legal doctrine that courts cannot decide political questions, that is,questions that are better decided by Congress and the president. This was because the panel of judges deciding the case found that the United States military had control over KBR so that KBR’s decisions regarding the burn pits were “de facto military decisions.”

However, in a Worker’s Compensation case filed in the U.S. Department of Labor, an administrative law judge found exposure to burn pits was linked to lung disease.[1]This case concerned a federal contractor, not a service member, and was not connected to the KBR litigation. Thus, it is not clear what effect, if any,this decision may have on the ongoing burn pit crisis.

In May of this year,Representatives Tulsi Gabbard (D-Hawaii) and Brian Mast (R-Florida), both post-9/11 combat veterans, introduced the Burn Pits Accountability Act. The Act would require the Department of Defense to evaluate whether service members have been exposed to burn pits or other toxic airborne chemicals. Service members who have been exposed will be enrolled in the Department of Veterans Affairs Burn Pit Registry unless they opt out. The Act is still pending a vote.

In June, the House of Representatives held a hearing to determine what is known about the health effects of burn pits. Members of various veterans’ organizations testified at the hearing, though no representative from the Department of Defense attended. In August 2018, General Patraeus sent a letter to all Congressional offices urging them to support the Burn Pits Accountability Act.

Many Veterans Service Organizations and non-profits support efforts aimed at increasing our knowledge of the effects of burn pits, as well as providing supports to veterans living with the consequences of exposure to burn pits. However, there is still much more the VA can and needs to do to support our veterans. So what can veterans do now?

What Can Service Members or Veterans Exposed to Burn Pits Do?

Any veterans or service members who are experiencing health conditions that may be related to their exposure to burn pits can file for VA Disability Compensation. However, these claims are considered on a case-by-case basis, meaning service members will not get any special treatment if they claim their conditions are connected to their exposure to burn pits. However, VA regional offices have been instructed to review all claims for disability compensation for potential exposure to burn pits, even if it is not alleged.[2]

They should also consider registering with the VA’s Burn Pits Registry, and/or the Burn Pits 360’s registry. Individuals who register with the VA can receive a free health evaluation.


[1] https://taskandpurpose.com/burn-pits-court-ruling-va/

[2] Id. at 11.

Why Should I Pay For An Attorney When I Can Work With A VSO For Free?

I hear a lot of veterans question why attorneys should charge money to do something a VSO will do for free, and I get it. No one wants to give money to someone if someone else can get the job done for free. This is why many veterans choose to get help from a Veterans Service Organization (VSO) rather than hire an attorney to handle their VA Disability Compensation claim. But as Warren Buffett said, “Price is what you pay. Value is what you get.” Sometimes the cheapest route is not the most valuable. Continue reading “Why Should I Pay For An Attorney When I Can Work With A VSO For Free?”

Do I Need a Lawyer for my VA Disability Compensation Claim?

Let’s talk about the elephant in the room, first: Yes, I am a lawyer. Yes, this post is about whether you need a lawyer. Yes, this could be seen as a self-serving post. But there is something else you should know: I don’t want your case if you don’t want a lawyer, and even if you do, I personally may not even be the right lawyer for you. I do, however, want to help you figure out if you should spend your time and resources to hire a lawyer, because not every person should, or can. Whether you hire a lawyer to help with your VA Disability Compensation claim is a decision you should give a lot of thought to. Here are the two main questions to get you started.  Continue reading “Do I Need a Lawyer for my VA Disability Compensation Claim?”

What additional benefits are available to veterans who use orthopedic or assistive devices?

Though my firm handles VA Disability Compensation benefits, I also try to lead my clients in the right direction for other resources for which they may be eligible. Veterans who use orthopedic or assistive devices, such as prosthetic limbs, wheelchairs, and home medical equipment, have a number of resources they can tap to get the most out of their VA benefits. Continue reading “What additional benefits are available to veterans who use orthopedic or assistive devices?”

Why Was my Claim for VA Disability Compensation Benefits Denied?

In every denial letter, the VA must explain why they have denied the claim. Though each claim is different, here are 6 common reasons why a VA Disability Compensation claim may be denied. Continue reading “Why Was my Claim for VA Disability Compensation Benefits Denied?”

How to Return to Work and Keep Your Disability Benefits

If you are receiving VA Disability Compensation, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or all three, you may be able to work and still keep your benefits. Each program has its own requirements, however, so you may be able to receive one type of benefit but not the others. It all depends on what type of benefit you receive, and how your benefit rate was calculated.

If you receive VA Disability Compensation benefits and…

Your rating is based on the VA Ratings Table

If you are receiving a rating that was calculated based on the Ratings Table, even if it is 100% (called a schedular rating), you can still work and receive your VA benefits.

Your rating is based on TDIU (total disability rating based on individual unemployability)

In order to get approved for TDIU, you must prove to the VA that you are unable to perform substantial gainful employment as a result of your condition(s). Substantial gainful employment for VA purposes is “other than marginal work,” meaning you could work in a sheltered or protected environment such as a family business so long as your earned annual income is less than the federal poverty guideline. In 2018, the federal poverty guideline for a single person household is $12,140/year. If you then go back to work, the VA can decrease your rating to what it was before you were approved for TDIU. See my prior post on TDIU for more information.

If you receive Social Security benefits (SSI and SSDI)…

Each program has its own rules regarding whether and how much recipients can work. If you are receiving Social Security disability benefits, SSI and/or SSDI, you can work within certain limitations.

SSI

If you are receiving SSI, you can work so long as your earned income does not exceed substantial gainful activity[1] ($1,180/month), and your monthly income is under the SSI income requirements for eligibility ($750/month for an individual in 2018).[2] If your income is above the monthly limit of $750, your benefit will terminate. Additionally, if you start to earn more income than you were earning when you were first approved, even if that income is below the $750/month limit, SSA will decrease your monthly SSI benefit to account for your increased income.

SSDI

SSDI recipients on the other hand do not have a monthly income limitation other than substantial gainful activity. So long as you earn below SGA, $1,180/month, you can still receive the SSDI benefit.

Trial Work Period for SSDI Recipients

Additionally, when you want to return to work, you can do so during a Trial Work Period (TWP) without immediately losing your benefit. Read this post for more information on TWP.

If you receive both VA Disability Compensation and Social Security benefits…

For individuals who receive both VA and SSI/SSDI, they must consider both program’s limitations if they want to keep both types of benefits. Each program is run independently of each other, so you will have to report separately to each agency. It is possible to keep all of your benefits while working, but depending on the type and amount of work you are engaged in, one or both of your benefits might terminate.

Bottom Line: If you are thinking about returning to work and you receive VA or Social Security disability benefits, you should carefully consider how your work will affect your benefits, especially if you are unsure if you will be able to maintain employment for an extended period of time.


[1] Though the VA and SSA both use the phrase “substantial gainful activity,” it is defined differently by each agency. See above.

[2] Because of how SSA calculates beneficiary’s income for eligibility purposes, it could be possible for someone to earn more than $750/month and still qualify for SSI.

Individual Unemployability – What is it, and which veterans are eligible?

I’m a disabled veteran and cannot work, but the VA won’t give me a 100% rating. What can I do? Individual Unemployability, short for Total Disability based on Individual Unemployability (TDIU), is a part of VA’s disability compensation program that allows the VA to pay certain Veterans disability compensation at the 100% rate, even though the VA has not rated their service-connected disabilities at the total level. Only certain disabled veterans are eligible for TDIU, however. Simply being unable to work is not enough. Continue reading “Individual Unemployability – What is it, and which veterans are eligible?”