The PACT Act: It Is About More Than Burn Pits
The PACT Act: It Is About More Than Burn Pits
The PACT Act of 2022, more fully known as PL 117-168 Sergeant First Class Heath Robinson, Honoring Our Promise to Address Comprehensive Toxics Act of 2022, represents the biggest expansion of VA benefits in history. The Act expanded the list of presumptive conditions available to veterans, and also greatly increased the concept of toxic exposure, risk, and activity associated with military service on both foreign and domestic bases. This article will provide a summary of the basic elements of a compensation claim, and the basic elements of the PACT Act.
BASIC ELEMENTS OF A VA COMPENSATION CLAIM
In order to understand how the VA processes PACT Act claims one must be familiar with how VA processes claims for compensation, or more commonly referred to as service-connected claims. A number of elements must be established including active-duty service; the veteran must not be dishonorably discharged; an injury or event in service while on active duty; a current diagnosis; and a nexus or connection between the in-service active-duty injury or event, and the current diagnosis.
With regards to elements of claims, the VA has created a number of presumptions. These presumptions remove the need for evidence relative to the elements of nexus and/or injury/event. The PACT Act added presumptions for Persian Gulf War veterans and Post 9/11 veterans.
In addition to presumptive conditions, the VA also uses the concept of secondary service-connection. A secondary condition is one that is related to and/or caused by the primary service-connected condition.
Another method VA uses in analyzing claims for compensation is the concept of aggravation. An example of this might be a veteran has a non-symptomatic asthma that is extraordinarily mild on admission to the military forces. That veteran, however, as a result of service develops asthma that requires inhalers, and perhaps a breathing machine. In that case, the VA would consider the concept of aggravation as a non-symptomatic condition worsened in severity as a result of service presumptive.
The VA also uses a framework for making decisions that may be unfamiliar to those who practice in either workers’ compensation, or other civil litigation. The burden of proof, of course, is always upon the claimant to go forward with evidence in a claim. However, statutorily, the VA has an obligation to consider the benefit of the doubt. The benefit of the doubt statute requires where there is an approximate balance of positive and negative evidence, the benefit of the doubt is given to the veteran. This applies to any issue, not just the ultimate decision or claim.
THE PACT ACT
The PACT Act was signed in honor of Sergeant First Class Heath Robinson, who died of lung cancer at the age of 39. It became effective August 10, 2022. The Act added more than 20 plus presumptive conditions for Persian Gulf War, and post 9/11 veterans. The Act also added two more conditions for Vietnam era veterans exposed to herbicides, and greatly expanded the conceded locations for herbicide exposure. The Act also expanded locations where veterans had been exposed to ionizing radiation.
The main presumptions relative to the PACT Act are contained in 38 U.S.C. § 1119. These presumptions are toxic exposure for Gulf War, and post 9/11 veterans; veterans exposed to Agent Orange, otherwise known as herbicide agents; and veterans who were exposed to radiation activity. It also greatly expands the concept of Toxic Exposure Risk Activity (TERA), based upon an Individual Longitudinal Exposure Record (ILER).
The TERA expands upon the notion of an injury, or event in service. The Act requires an examination when there is a notation the veteran had a TERA. This examination, however, in screening, might be very gross. The veteran may only be asked questions related to Agent Orange exposure, Burn Pit exposure, particulate matter, radiation exposure, and whether or not the veteran believes they were exposed to any other toxins. While expanding upon the notion of injury or event in service, the screening will not be highly detailed.vi The list of EPA Superfund cleanup sites that are Military Bases or former Military Bases on the EPA website contains more than 100 locations. A veteran may or may not be aware of any exposure to toxins as a result of their service. Thus, the conclusion of this author is that the examinations will be very gross, and not highly specific to the veteran, unless the veteran is more than informed.
The TERA will also consider the Individual Longitudinal Exposure Record (ILER), that is currently maintained by the Department of Defense, or its successor system of records. The Department of Defense began keeping records of potential exposure to toxic material and hazardous material around the year 2000.
For those practitioners representing veterans, caution needs to be exercised in taking at face value the information contained in this record, and in the information or factual predicates for any VA decision related to this. The Department of Defense has been very slow to admit where they utilized Agent Orange. As part of the PACT Act, there is a great expansion of geography that is now considered presumptive. Further, the VA has not fully explored, nor has the Department of Defense fully explained exactly what toxins and hazardous material veterans have been exposed to on Military Bases. The history of the Agent Orange Act, and a Court decision as recent as January 2023 from the Court of Appeals for Veterans Claims, reasonably leads to a conclusion there are other toxins the Department of Defense has not admitted were utilized on Bases. Therefore, caution needs to be exercised in investigation. Multiple sources should be utilized regarding exposure to toxins and hazardous materials while representing veterans and families.
Persian Gulf War and Post 9/11 Veterans
One of the ways to look at the PACT Act is based upon geography. For veterans who served on or after August 2, 1990, and who served in, around, or in the airspace above Iran; Iraq; Kuwait; Oman; Qatar; Saudi Arabia; Somalia; United Arab Emirates (UAE); or after 9/11, performed military service in, above or around Afghanistan; Djibouti; Egypt; Jordan; Lebanon; Syria; Yemen; Pakistan; or any country determined by the Secretary of the VA, is potentially entitled to VA service-connected compensation under the Act.
The presumptive conditions covered currently include asthma, diagnosed after service; brain cancer; chronic bronchitis; chronic obstructive pulmonary disease (COPD); chronic rhinitis; chronic sinusitis; constrictive bronchiolitis; emphysema; gastrointestinal cancer of any type; glioblastoma; head cancer of any type; granulomatous disease; interstitial lung disease; kidney cancer; lymphatic cancer of any type; lymphoma of any type; melanoma; neck cancer; pancreatic cancer; pleuritis; pulmonary fibrosis; reproductive cancer of any type; respiratory cancer of any type; and sarcoidosis.
These conditions, if a veteran served in the geography listed, and has a current diagnosis, are presumptive conditions; and thus, no nexus opinion is required to find that they are service-connected, and thus, the veteran is entitled to compensation
In, Around, and in the Airspace
The PACT Act also greatly expanded geography in terms of in, around, and the airspace above the listed areas. The Bluewater Navy veterans had to fight for decades to be recognized as being exposed to Agent Orange based upon the Statute’s definition of territorial waters of Vietnam. The PACT Act builds upon that experience, and specifies the Secretary is to consider service in, around, and the airspace above the listed areas as inclusive of exposure to hazards on active duty.
Veterans Exposed to Herbicides (Agent Orange)
Vietnam Era veterans eligibility expansion include the new presumptive conditions of high blood pressure (hypertension), and monoclonal myopathy of undetermined significance (blood cell disorder). The list of geography that one must have served in now includes Republic of Vietnam between January 9, 1962 through May 7, 1975; Thailand at any US or Royal Air Force Base between January 9, 1962 and June 30, 1976; Laos between December 1, 1965 and September 30, 1969; certain provinces in Cambodia between April 16, 1969 to April 30, 1969; Guam or American Samoa, or their territorially waters, between January 9, 1962 and July 31, 1980; and the Johnson Atoll or a ship that called there between January 1, 1972 and September 30, 1977.
The Act added Guam; and American Samoa or their territorial waters; Johnson Atoll; certain provinces in Cambodia and Laos; and any U.S. or Royal Thai Airbase. This represents an expansion of the concessions that the DOD had made earlier relative to Agent Orange exposure. The prior list only included the Republic of Vietnam, and the waters offshore, to include Bluewater Navy veterans, the Korean DMZ, and certain Thai Royal Air Force Bases. In addition, the geography includes domestic bases for the first time: Lockbourne/Rickenbacker Air Force Base, OH between 1969 and 1986; Westover Air Force Base, MA between 1972 and 1982; and Pittsburgh International Airport, PA between 1972 and 1982.
Radiation Exposed Veterans
The Act also expanded entitlement due to exposure to ionizing radiation, adding the Enewetak Atoll until January 1, 1977, through December 31, 1980; cleanup of the Air Force B-52 bomber carrying nuclear weapons off the coast of Palomares, Spain from January 17, 1966, through March 31, 1967; and the response to a fire on board an Air Force B-52 bomber carrying nuclear weapons near Thule Air Force Base in Greenland from January 21, 1968 to September 25, 1968.
TOXIC EXPOSURE RISK ACTIVITY (TERA) EXPANSION OF INJURY/EVENT
The PACT Act, however, went beyond just the presumptive conditions, and indicated an expansion of eligibility recognizing Toxic Exposure Risk Activities in all geography’s where a veteran may have served.xii The Toxic Exposure Risk Activity (TERA) is an assessment of the veterans compensation claims. The Toxic Exposure Risk Activity, if provided, now requires the VA to develop evidence in the claim for a medical examination for TERA claims. 38 U.S.C. § 1168(a) requires VA to obtain an examination or opinion if a veteran submits to the Secretary claims for compensation. The VA hired approximately 10,000 new employees to process the PACT Act claims. The Toxic Exposure Risk Memorandum and Exam is designed to screen veterans who claimed they engaged in a Toxic Exposure Risk Activity, and their disabilities are as a result of exposure to toxins. In the past, VA may have not examined the veterans, because there was insufficient evidence of a connection between the exposure to the toxins in service-connected claims.
The presumptive conditions and geography does not limit the applicability of the Act. As indicated above, the basic elements of a service-connected claim requires an injury or event in service while on active duty, a current diagnosis, and a nexus. The PACT Act expanded the concept of injury or event while in service to include toxic exposures.
This is an important key to understanding why Congress appropriated over $280 billion for the PACT Act, and its implementation initially; and why the VA calls it the biggest expansion of eligibility in the history of VA. Potentially, this Act applies to millions of servicemembers who were exposed to toxic chemicals and other agents while on active duty at bases foreign and domestic, or on-board ship.
There are exceptions contained in 38 U.S.C. § 1168(b) to conditions where VA is not required to provide examinations. They include conditions based upon physical trauma, mental disorders, or conditions that have no positive association with toxic exposure. The inquiry does not end there. The elements of basic direct compensation still apply. The difference is that a presumption no longer exists; and thus, the veteran should submit positive evidence of a medical connection/nexus between the in-service exposure, and the claimed condition.
This direct service connection pathway was recently highlighted in a Court of Appeals for Veterans Claims case involving Agent Orange on a domestic base. While not precedential, this case provides an outline for claimants for direct service connection compensation claims. Gust v. McDonough, No. 21-1317 (January 26, 2023, Court of Appeals for Veterans Claims) In the Gust case the veteran, who served at Ft. McClennan, submitted evidence of environmental studies that had been reviewed by Congress. Those studies demonstrated Agent Orange use, and documented toxic chemicals at elevated levels on the ground. The veteran provided third-party lay evidence from “buddies”, documenting being in the dirt as part of training at Ft. McClellan. The VA provided no contradictory evidence. The Court ruled favorably for the veteran, and remanded the claim for a calculation of benefits, as the veteran had established exposure to the herbicide agent.
The PACT Act could be expanded based on medical science and developing research, such that additional conditions could be added by the Secretary.
Thus, the potential toxins a veteran might have been exposed to include:
Air pollutants: burn pits and oil well fires during the Gulf War; sulfur fire in Iraq; Atsugi, Japan waste incinerator; sand, dust, and very small particulate matter or liquid droplets.
Chemicals: herbicides (Agent Orange) used during Vietnam era; burn pits for waste disposal; sulfur fire in Iraq; Camp Lejeune water supplies; pesticides used during Gulf War; depleted uranium; industrial solvents
Occupational hazards: asbestos; industrial solvents; lead; radiation; vibration; noise; fuels; polychlorinated biphenyls (PCBs); special paint used on military vehicles.
Radiation: nuclear weapons and testing; x-rays; depleted uranium.
Warfare agents: chemical and biological weapons; mustard gas; nerve agents; project 112/Project SHAD; herbicide tests and storage; chemical experiments.
Thus, the PACT Act brings the VA, and the DOD, somewhat into the 21st Century with EPA oversight. The PACT Act recognizes toxic exposures did, and will continue to occur, as a result of active-duty military service; and that diseases or illnesses related to those exposures will be compensated as a service-connected disability, if supported by the presumptions or medical science.
SURVIVORS
Survivors of veterans also have an option. Dependency and Indemnity Compensation is a VA benefit for widows(ers). Re-evaluation of claims, based on a change in the law, is mandated.xiii Thus, if a prior claim for DIC benefits was denied, VA is supposed to evaluate if the change in the law or presumption would result in a different decision. Generally, survivors must file claims within 1 year of death. The VA notes neither accrued benefitsxiv, nor the substitute statutexv were modified by the PACT Act.
CONCLUSION
The PACT Act represents the biggest expansion of veteran’s benefits in VA history. Short of the creation of the Court of Appeals for Veteran’s claims in 1987, where attorneys were allowed to again be involved in processing the veteran’s claims and to be paid a reasonable fee, the PACT Act is the biggest VA law in over 30 years. The PACT Act expands on the concept of presumptive, herbicide exposure, radiation exposure, exposure to burn pits and particulate matter exposures, and other industrial toxics, and directs the VA to continue to search for, and develop claims.
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