Posted on Jul 13, 2023
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From May 2011 to May 2012 I was with the Army 1st Cav Division at Bagram, AFghanistan. While there my voice changed and later diagnosed as cancer in my larynx. With the VAs burn pit policy, do I have any recourse? I know precedent exists from a WWII case where civilians in support of Army Air Corps were awarded VA benefits despite having never been in service.
Burn Pits
Cancer
Afghanistan
Veteran Benefits Advisor
Posted >1 y ago
Responses: 2
As you pointed out, civilians and contractors could be eligible for VA benefits, but there has to be a determination by the Secretary of Defense. However, that determination has only been made for some civilians and contractors involved in World War I and World War II.
Contractors that were injured or became ill while supporting DoD overseas would have a workman's compensation disability claim under the War Hazards Compensation Act* (most likely, under the Defense Base Act* from your description).
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* War Hazards Compensation Act - https://www.ecfr.gov/current/title-20/chapter-I/subchapter-F/part-61
* Defense Base Act overview - https://www.dol.gov/agencies/owcp/dlhwc/lsdba
Contractors that were injured or became ill while supporting DoD overseas would have a workman's compensation disability claim under the War Hazards Compensation Act* (most likely, under the Defense Base Act* from your description).
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* War Hazards Compensation Act - https://www.ecfr.gov/current/title-20/chapter-I/subchapter-F/part-61
* Defense Base Act overview - https://www.dol.gov/agencies/owcp/dlhwc/lsdba
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SPC (Join to see)
CPT Cal Sieg - Yes, you have to battle with the B.V.A. The V.A. likes to tell us that it cares about us and implies that getting compensation is an easy thing to do. It most certainly is not! It is adversarial warfare. It is not a cooperative process. In my case, I'd become depressed every time that I got one of their absurd denials. After three of four days, my depression and tears would turn into downright RAGE! Then, I'd be in a frame of mind to appeal. In my situation, I got a call from a rater who told me that he was going to be rating my PTSD and MDD as service-connected. He apologized and said it should have been done "years earlier." I was shocked to get his phone call. . . .
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COL Randall C.
SPC (Join to see) - His situation has nothing to do with the VA as his exposure what as a military contractor, not as a service member.
As he and I mentioned, there are some situations where civilians and contractors have been included by the Department of Defense as being eligible for a VA claim, but the only ones that have been approved so far happened during WWI and WWII.
It is possible if enough pressure is put on politicians that some future legislation or decision by DoD will include contractors and DoD civilians to be eligible for Gulf War claims, but there doesn't appear to be anything in the works right now.
CPT Cal Sieg - When was the last time you looked into doing a workman's comp claim under the DBA?
While do a bit more searching, I came across a mention of a case that was brought before a DOL workman's compensation judge in 2018 by a KBR contractor who was previously denied her claim. The judge gave a finding that "open-air burn pits are directly connected to lung disease and a host of other illnesses such as cancer, respiratory problems and blood disorders", so you now have a prima facie link (i.e., in VA terms a presumptive cause) between the burn-pits and your throat cancer.
Additionally, I came across many recent cases that were approved for claims going back to 2001. Section 13 of the DBA address the timeliness of a claim, but it hinges on "awareness" and in multiple cases the DOL's Benefit Review Board has for the claimant regarding when it was reasonable for the awareness to start.
Finally, it appears that legal fees under the DBA are different from others situations as it is specifically written into the DBA*. From what I saw on a few of the DBA attorneys sites, if they file a claim on your behalf and it is accepted within 30 days, you pay them for legal expenses with the filing (pure guess, but probably would be a couple hundred dollars for a few hours of work). If they reject your claim or don't act on it within 30 days, then the responsibility for all fees shifts to the DBA insurer (all government contractors operating overseas are required as part of the contract to carry DBA insurance).
If I were in your situation, I would absolutely discuss you case with a DBA attorney and get their evaluation ... ESPECIALLY in light of the DOL judge's ruling in 2018.
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* DBA fees - https://www.law.cornell.edu/cfr/text/20/61.104
* https://www.barneslawfirm.com/who-pays-defense-base-act-attorney-fees/ (Note: just as an example of one of the firm's comments about DBA fees. Obviously not an endorsement)
As he and I mentioned, there are some situations where civilians and contractors have been included by the Department of Defense as being eligible for a VA claim, but the only ones that have been approved so far happened during WWI and WWII.
It is possible if enough pressure is put on politicians that some future legislation or decision by DoD will include contractors and DoD civilians to be eligible for Gulf War claims, but there doesn't appear to be anything in the works right now.
CPT Cal Sieg - When was the last time you looked into doing a workman's comp claim under the DBA?
While do a bit more searching, I came across a mention of a case that was brought before a DOL workman's compensation judge in 2018 by a KBR contractor who was previously denied her claim. The judge gave a finding that "open-air burn pits are directly connected to lung disease and a host of other illnesses such as cancer, respiratory problems and blood disorders", so you now have a prima facie link (i.e., in VA terms a presumptive cause) between the burn-pits and your throat cancer.
Additionally, I came across many recent cases that were approved for claims going back to 2001. Section 13 of the DBA address the timeliness of a claim, but it hinges on "awareness" and in multiple cases the DOL's Benefit Review Board has for the claimant regarding when it was reasonable for the awareness to start.
Finally, it appears that legal fees under the DBA are different from others situations as it is specifically written into the DBA*. From what I saw on a few of the DBA attorneys sites, if they file a claim on your behalf and it is accepted within 30 days, you pay them for legal expenses with the filing (pure guess, but probably would be a couple hundred dollars for a few hours of work). If they reject your claim or don't act on it within 30 days, then the responsibility for all fees shifts to the DBA insurer (all government contractors operating overseas are required as part of the contract to carry DBA insurance).
If I were in your situation, I would absolutely discuss you case with a DBA attorney and get their evaluation ... ESPECIALLY in light of the DOL judge's ruling in 2018.
-----------------------------------------------
* DBA fees - https://www.law.cornell.edu/cfr/text/20/61.104
* https://www.barneslawfirm.com/who-pays-defense-base-act-attorney-fees/ (Note: just as an example of one of the firm's comments about DBA fees. Obviously not an endorsement)
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SPC (Join to see)
Randall, Cal begins his question with, "What rights or benefits, if any, do I have as a veteran. . . ."
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COL Randall C.
SPC (Join to see) - *chuckle* - yes he did, but the answer to that is "none" because the rest of his question, "... while there as a civilian contractor?" gave it the proper context.
There is likely no doubt that the cancer has a causal connection to the burn-pits, but because his exposure was as a civilian contractor, he has no basis for a claim with the VA.
There is likely no doubt that the cancer has a causal connection to the burn-pits, but because his exposure was as a civilian contractor, he has no basis for a claim with the VA.
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As a veteran, you can apply for compensation. Part of that application needs to include a doctor's statement that you have cancer in your larynx and that the cause is your exposure to burn pits. Also, include any parts of your military medical record that speaks to problems with your change in voice and that you were exposed to burn pits. Put as many items as you can think of in developing a "nexus" (the V.A. LOVES the word "nexus" so be sure to include this word in your application for compensation!). And please be aware that the V.B.A. will deny your application; you have to appeal its decision. Don't become despondent over a denial. Every time you receive a subsequent denial, APPEAL! And make sure that your appeals are within the V.B.A.'s mandated time frames. It doesn't have to follow its own time frames, but YOU must! If needed, get an attorney involved. Good luck. It took 15 1/2 years for the V.B.A. to finally rate me appropriately for the PTSD and MDD that was the result of my service in the U.S. Army. So, be patient. . . .
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