Robert: Hi, this is Robert Chisholm from Chisholm Chisholm and Kilpatrick. With me is Kerry
Baker, also from Chisholm Chisholm and Kilpatrick. We're gonna talk today about burn pits.
Kerry in general terms can you tell me what a burn pit was and what it was used for?
Kerry: So post 9/11 and in the wars of Iraq and Afghanistan the military contracted with
various contractors for waste disposal. And so initially their decision was to dispose
of waste they produced whatever it may be in large burn pits so a burn pit is essentially
a very large pit if you will some weren't technically pits where all of the base's
waste would be disposed of through burning. It is not-- you may ask me this but it is
not a 55 gallon barrel burning things like human waste we're talking of a pit on a
much larger scale.
Robert: We're talking about an open fire...
Kerry: An open fire.
Robert: How large were these would you say?
Kerry: The largest one at it's peak was approximately 20 acres and that was the one in Balad. Most
reports have it at 10 acres but in actuality at its peak it was closer to 20 acres.
Robert: So you're saying 20 acres of land was used to burn the waste of that particular
location.
Kerry: That is correct. That doesn't mean 20 acres was on fire. The fire could be in
the center of it. But - you know - the fire could be the size of a city block when you're talking a
pit thats got trash covering 20 acres. There could be more than one fire location
within that 20 acres it could be three or four different smoke blooms coming up.
Robert: And were these burn pits co-located with the different sites where troops are
stationed?
Kerry: Yes there was a burn pit at generally every operating base in Iraq and Afghanistan.
Some were obviously smaller than others depending on the size of the base but generally there
were burn pits in every forward operating base in Iraq and Afghanistan.
Robert: So if you were stationed out at one of these sites were you exposed to the smoke
from them from the burn pits?
Kerry: You were most likely exposed to the smoke - the smoke - because of the size of some of these
and approximately to the bases many were on the bases within the wire because that's
how the wire was just - it was just too dangerous. Everyone was exposed to the smoke at varying
levels depending on atmospheric conditions your proximity your living quarters your
work areas to the burn pits but everyone was exposed.
Robert: And how long did the military use these contractors to dispose of waste through
these burn pits? From what period of time?
Kerry: All throughout the war in Iraq all the way through 2009 2010 in Afghanistan
there are some still being used but for the majority of all operations in Iraq and Afghanistan
burn pits were used throughout the wars.
Robert: So what kinds of disabilities diseases are you seeing are the veterans community
seeing as a result of being exposed to burn pits?
Kerry: It runs a large range of disabilities. A whole lot of pulmonary disabilities things
like constrictive bronchiolitis which is a rare fibrotic lung disease of the small
airways of the lungs. It's rare-- most of the people that have it they have it because
of inhalation exposures.
Robert: So respiratory breathing type problems?
Kerry: Respiratory problems autoimmune problems we've seen a whole rash of various types of cancers
in fact I don't believe we know the limit simply because of the synergistic
effects of various chemicals people are exposed to all at once. The sensitivity that some
people have more than others...
Robert: Can I stop you right there?
Kerry: Sure.
Robert: Because you said something important I think and that is the synergistic effects
I can't say that word well the synergistic effects of the different chemicals. Some of
those chemicals that were released into the air are similar if not the exact same exposure
that Agent Orange causes isn't that correct?
Kerry: That is correct.
Kerry: The actual herbicide Agent Orange was a 50 50 mixture of a herbicide called 2 4 D and 2 4 5 T.
The herbicide 2 4 5 T was contaminated with dioxin. Now there are
multiple dioxins some more potent than others but the dioxin that was contaminated in - that contaminated
Agent Orange that particular herbicide was 2 3 7 8 TCDD that's the short acronym for it it
actually stands for Tetrachlorodibenzo-P-dioxin. It is the most potent dioxin on the planet
in fact all other dioxins and similar chemicals are measured in their potency compared to
that one so that one is the base as the most toxic.
Robert: All right so if I can stop you right there you are now talking-- this dioxin that
you're talking about was clearly in Agent Orange?
Kerry: That's correct
Robert: How does that relate to the things that were released through the burn pits?
Kerry: Because that dioxin is a combustion bi-product as most dioxins are and it was
released or it was contained in Agent Orange because of a combustion problem in the making
of Agent Orange. So when you burn certain items that can produce dioxins and certain
mixtures can produce that particular dioxin. Items in the burn pits were a perfect mix
of chemicals that released TCDD into the air in Iraq and Afghanistan so yes to answer
your question in the short version the exact same dioxin that was in Agent Orange was released
by the burn pits but along with dozens if not hundreds of other chemicals as well.
Robert: That's really shocking Kerry because we knew at the time they were-- from Agent
Orange exposure that different cancers and things that the VA considers presumptive diseases
yet we're continuing to expose our troops our veterans to these chemicals in Iraq and
Afghanistan.
Kerry: It's absolutely shocking. Probably half to two thirds of the individual chemicals
that they measured from the burn pits are known human carcinogens class A human carcinogens
things like benzene. Benzenes as you know is known to produce various leukemias and
other disabilities and the list is long I can't name obviously all the list just sitting
here but you've got dozens of carcinogenic compounds released from those burn pits.
Robert: I want to switch gears for a moment here and talk about how these exposures to
the burn pits how veterans now are being treated by the VA when they make a claim for
a medical condition as a result from the burn pits. What are you seeing in those claims
and how is the VA adjudicating them?
Kerry: The VA is adjudicating them poorly is probably an understatement.
Robert: Are they doing it first of all a case by case basis right now?
Kerry: Correct they are doing it on a case by case basis. There's no presumptions in
place for any of these diseases that the veterans may be getting. That makes the situation worse
the fact that they're doing it on a case by case basis.
Robert: Similar to what they did in the Agent Orange in the early years where a veteran
would have to say "I was actually exposed to this much Agent Orange therefore I have
this condition." Does that mean a veteran coming in today has to say "I was next to
this burn pit I was constantly exposed and this is why I have the condition" whether
it's a cancer a diabetes a constrictive lung disease whatever it is?
Kerry: Correct. With any exposure related disease VA is gonna want to establish exposure
to whatever toxins you are claiming you were exposed to. Historically they're not going
to take somebody's word that they were exposed unless there is a legal presumption of exposure
here because there's no regulations or statues on this there's no legal presumption of exposure.
But VA does have policy document out there that basically tell VA adjudicators to concede
exposure if a veteran was in Iraq and Afghanistan and says they were near to some of these burn
pits because you're not going to have evidence in the claims file and in the personal service
records 99% of the time it says they were a hundred yards from a burn pit 50 yards
from a burn pit it's not going to happen. So that's the one thing VA does right in
this scenario. It's pretty easy to get VA to concede the exposure.
Robert: So how does a veteran prove the claim that they have the exposure conceded but how
do they prove their medical condition is related to the burn pits?
Kerry: Well I said that the one easy part is for VA to concede the exposure. In my opinion
the easy part stops there. The rest of it is extremely difficult next to impossible
in some cases. Once a veteran establishes that exposure and shows VA that he or she
may be suffering from a disease there has to be a relationship between that disease
and the exposure and that relationship has to be usually in the form of a medical opinion
a very good medical opinion there's reasons for that. And that may obviously that's going
to be the factor that's going to drive service connection for that veteran. Without that
medical link odds are the veterans never gonna get service connected for that disability.
Robert: Is the VA when they do a medical examination connecting disabilities to the
burn pit exposures?
Kerry: Very very rarely.
Robert: So what can a veteran do in that situation?
Kerry: In my opinion they have to get their physicians to understand what the exposures
were. So for example there's training letters and documents out there on the burn pits
their physician needs to be educated as to what the exposures were. Understand the diseases
that they have and be able to relate those two in a medical opinion. And I say understand
that the exposure is more than an examiner simply saying "I believe it is likely as
not that this person's leukemia or breathing problems or whatever it may be is related
to burn pits." Explain what the exposures were in the burn pits and how those particular
elements or toxins are a factor in the development of that specific disease. That's the best
way to go about doing it to really prevail in a claim.
Robert: So our law firm Chisholm Chisholm and Kilpatrick has a few experts that have
helped us out in this way correct?
Kerry: We do yes
Robert: We are actually winning claims before the VA that have initially been denied with
these expert reports?
Kerry: That is correct. In fact we haven't lost one yet. We haven't won them all because
some are obviously still in the appellate process. But we haven't come to a final decision
where we have lost any of them yet. So thus far our track record is very good on these
but it's still a difficult and still a very lengthy process.
Robert: Kerry why does the VA keep getting these cases wrong? These burn pit exposure
cases?
Kerry: In my opinion there's a range of reasons for that. So veteran comes in files a claim
says he was exposed. The first thing VA does is they have to develop these claims in certain
ways. They have training materials that tell them to obtain an examination from a physician
and explain to that physician what the exposures were. First of all they rarely do that. A
lot of times the adjudicator will get the development instructions mixed up with other
periods of war or other types of claims such as Gulf War related claims which are not
the same as burn pit related claims. There is some overlap there but they are two distinct
types of claims. When they don't do that the claim get damaged detrimentally it's
very damaging to the claim right from the get go. Other times when they do the correct
development they are sending these claims to an examiner who has no training whatsoever
as to what these burn pits are. They may know a little about Gulf War type claims but not
burn pit related claims. Not claims specific to operations in Iraq Iraqi Freedom or Enduring
Freedom in Afghanistan.
Robert: So Kerry are the raters given any flexibility in how they decide these claims
and the raters are the people that work at the VA and make sort of the initial decisions.
What kind of flexibility are they given when it comes to burn pit cases?
Kerry: That's a very interesting question. The law gives them flexibility to evaluate
evidence and decide cases the law gives them that flexibility but for years now the structure
of VA and it's claims process has taken away a lot of that flexibility. So one of the
problems as we discussed in the various training problems with the examiners and the raters
same thing here. Raters do not evaluate evidence much anymore they don't evaluate the exposure
they don't evaluate the medical evidence. They rely on being told that it's okay to
grant this benefit or told that it's not and if they are not told that it's okay to
grant a lot of times they deny that benefit. Because they'll provide reason such as VA
has not established the relationship between this exposure and this disease. What they
are looking for there is a presumption. The whole community is up in arms because there
are no presumptions VA raters won't grant a lot of these things because there's no presumptions
but what they're missing there is they're not evaluating the evidence and applying the
law they're not thinking. They want other people to do their thinking for them and that
ends up hurting the claim and ending up in a denial.
Robert: Are there any other thoughts that you would like to share with our audience
about burn pits?
Kerry: I would say that if you're a veteran from Iraq or Afghanistan and you know something
is wrong physically you don't know what it is or maybe you do know what it is don't
assume. Maybe you've been out of the military for a while don't assume that you're just
having bad luck. Like I said we don't know what all of these exposures are going to lead
to five years from now or 10 years from now, 30 years from now. The face of VA law changes
it's changed with Agent Orange it's changed with Gulf War issues changes all the time.
If you think you are sick because you're exposures to these elements you need to file a claim
and you need to pursue it and you need to appeal it if they deny it. Even if you don't
prevail the first try we don't know what's going to change in the future that could end
up helping that veteran or potentially that veteran's surroundings down the road. So
file the claim appeal the claim if denied seek help from people like us or somebody
else you trust that knows how to work these claims. So that would be my advice to everybody.
Robert: Thank you very much. This is Robert Chisholm from Chisholm Chisholm and Kilpatrick
and Kerry Baker from Chisholm Chisholm and Kilpatrick.