Released 10/30/24 | Tags:
NVLSP and Sidley File Class Action Lawsuit Challenging U.S. Army’s Medical Retirement
Policy of Denying Combat-Related Findings for Disabilities Caused by Gulf War Burn Pits
Army Veterans Wrongfully Denied
Tax-Free Military Medical Retirement Pay
FOR IMMEDIATE RELEASE: October 30, 2024
WASHINGTON—The National Veterans Legal Services Program (NVLSP) and Sidley Austin LLP recently filed a class action complaint in the United States District Court for the District of Columbia, on behalf of Sergeant First Class (SFC) (Ret.) Kyle Smoke, Lieutenant Colonel (LTC) (Ret.) Jennifer McIntyre, and a class of current and future Army veterans who have been, or will be, wrongfully denied combat-related tax-exempt disability retirement pay.
The lawsuit challenges the Army’s policy that denies a “combat-related” designation for disabilities presumed to be caused by exposure to military burn pits under the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (“PACT”) Act, 38 U.S.C. § 1120—a designation that would make these Army veterans’ disability retirement pay tax-free. Whether a disability is “combat-related” can be established by proving that an “instrumentality of war” caused the disability. Despite the Department of Defense’s own instruction that confirms that the decision to utilize a burn pit is a command decision and Department of Defense regulations governing the design of burn pits, the Army argues during the Disability Evaluation System process that burn pits themselves do not qualify as instrumentalities of war, forcing combat-injured veterans to meet a near-impossible burden of proving that a specific item burned in the pit during their deployment was an instrumentality of war and the cause of their disability. As a result, SFC Smoke, LTC McIntyre, and an ever-growing class of veterans are paying taxes on their disability retired pay for their combat-incurred disabilities, depriving them of the full benefit of the disability retirement they earned in service to their country.
SFC Smoke was medically retired for asthma, while LTC McIntyre was medically retired due to breast cancer. Following their retirements, both received Combat-Related Special Compensation for these conditions, with the Army explicitly acknowledging—contrary to the findings of the Army Physical Evaluation Board—that their PACT Act unfitting disabilities were due to an instrumentality of war.
SFC Smoke was stationed in Patrol Base Summers in Iraq between November 2008 and October 2009 living and working just a few hundred feet from a burn pit. He was required to take physical fitness tests near the burn pits, running through their smoke. The Army initially acknowledged that his asthma resulted from an instrumentality of war based on his testimony that “while on Patrol Base Summers he lived, slept, exercised, and worked approximately within 150 - 200 feet from the centrally located burn pit” and “frequently experienced burning sensation in his eyes, nose, throat, and chest and was treated by medical personnel for respiratory infections while in theatre.” Yet, this preliminary finding was overturned by the Army with a final statement that “[a]ccording to current policies and regulations, burn pits . . . do not rise to the level of being . . . an instrumentality of war.”
LTC McIntyre deployed to Iraq and Afghanistan four times from 2004 to 2021 where she was exposed to burn pits. After her last deployment, LTC McIntyre was diagnosed with incurable breast cancer that required her referral into the Disability Evaluation System process. Eventually, LTC McIntyre was found unfit for duty due to her breast cancer. However, her breast cancer was not determined to be caused by an instrumentality of war despite her testimony that during her four deployments she lived and worked within 1.5-2.0 miles from burn pits, and possibly even closer, resulting in near-constant exposure to fumes from a burn pit. In particular, she testified that she “was able to smell the fumes from the burn pits and see smoke as well,” and that “she and her soldiers exercised and took Army physical training tests outside.” The Army conceded that PACT Act disabilities, such as LTC McIntyre’s cancer, are presumed incurred or aggravated from service in a combat zone. But the Army denied combat-related findings, insisting that burn pits are not instrumentalities of war.
A disability can be considered combat-related if it was caused by an instrumentality of war. An instrumentality of war is defined by the Department of Defense as “a vehicle, vessel, or device designed primarily for military service and in use by a military service at the time of the occurrence or injury.” Moreover, a disability is considered incurred due to an instrumentality of war whenever it is “incurred . . . as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.”
The lawsuit explains that military burn pits, unlike those used in a civilian context, are distinctly classified as a "device primarily designed for military service." According to Department of Defense instruction, these military burn pits are specifically constructed for waste disposal in secured military environments where there is a military presence of 100 or more personnel for over 90 days. Moreover, their use is permitted only where a Combatant Commander responsible for operational planning and execution determines that no alternative disposal method is feasible. Designed to adhere to strict military protocols, burn pits are built within fenced military bases, ensuring the safe management of waste in locations from which soldiers cannot freely leave. This military-specific function solidifies burn pits as instrumentalities of war.
The lawsuit claims that the Army’s practice or policy of refusing to designate unfitting PACT Act disabilities as due to an instrumentality of war violates the legal obligations of the Army, under statutory law and Department of Defense instructions, to confer combat-related findings for conditions caused by instrumentalities of war.
In the lawsuit, NVLSP and Sidley represent SFC Smoke, LTC McIntyre, and a putative class of potentially thousands of other veterans, who, like them, were illegally denied combat-related findings for their unfitting PACT Act conditions in the medical retirement process. They ask the Court to declare unlawful the Army’s policy of concluding military burn pits are not instrumentalities of war. The lawsuit asks the court to award a combat-related designation for the unfitting PACT Act Conditions of the named plaintiffs and class members.
“The conflicting findings by different components of the Army utilizing the same definition of an instrumentality of war is the epitome of arbitrary and capricious action. Moreover, the Army’s refusal to classify burn pits as instrumentalities of war during the Disability Evaluation System process ignores that the Department of Defense instruction only defines military burn pits in context of combat, which is uniquely particular to the military. Class action relief is needed to remedy this systemic practice that will impact significant numbers of soldiers granted a medical retirement back to August 2022 and into the future. The denial of combat-related findings to veterans rendered disabled by exposure to burn pits is unjust. We hope the Court acts swiftly to correct this injustice,” said National Veterans Legal Services Program Senior Managing Attorney Esther Leibfarth.
“Soldiers who valiantly serve our nation should know the injuries sustained while serving are covered fully by the benefits to which they’re entitled,” said Emily Wexler, Pro Bono Counsel at Sidley. “We are fighting on behalf of those that fought for us to make sure they receive all the benefits they deserve.”
The Sidley team also includes Partner Beth Chiarello and associates Kevin Park, Mark Priebe, and Susan Whaley. The NVLSP team also includes Director of Lawyers Serving Warriors® Rochelle Bobroff and Staff Attorney Amy Fulmer.
If you are an Army veteran who was denied combat-related findings for PACT Act conditions during the DES process, NVLSP encourages you to email Smokelawsuit@nvlsp.org to learn more about this case.
About The National Veterans Legal Services Program (NVLSP)
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 18 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.4 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information, go to www.nvlsp.org.
About Sidley
Sidley is an elite global law firm. With 2,300 lawyers, annual revenue of US$3.2 billion, and experience that spans 158 years, we have established a reputation using Built to Win℠ legal strategies in successfully representing clients in more than 70 countries on complex transactional, restructuring, investigation, regulatory, and litigation matters.
Sidley’s Veterans Advocacy Project provides legal assistance to disabled veterans seeking fair and timely benefits earned through their service. Sidley assists veterans with claims for service-connected disability compensation from the Department of Veterans Affairs; claims for medical retirement benefits and discharge upgrades from the armed forces; and applications for combat-related special compensation from the armed forces.
Media contacts:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org
For Sidley: Matt Messinger, 312-456-4009, mmessinger@sidley.com.