NVLSP and Sidley Settle Class Action Lawsuit with U.S. Army Designating Burn Pits as “Instrumentalities of War” for Medical Retirement Combat-Related Findings
FOR IMMEDIATE RELEASE: March 10, 2026
ARLINGTON, VA—The National Veterans Legal Services Program (NVLSP) and Sidley Austin LLP reached a settlement in Smoke et al. v. Driscoll, a class action lawsuit in the United States District Court for the District of Columbia. The suit challenged the Army’s denial of a combat-related designation during the Disability Evaluation System process 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.
The suit was brought by Sergeant First Class (SFC) (Ret.) Kyle Smoke, Lieutenant Colonel (LTC) (Ret.) Jennifer McIntyre, Army veterans who were medically retired following sustained exposure to burn pits, on behalf of a class of current and future Army veterans who were wrongfully denied a combat-related tax-exemption on their medical retirement pay. SFC Smoke was medically retired for asthma, while LTC McIntyre was medically retired due to breast cancer—both conditions that are known to be (and under the PACT Act, presumed to be) caused by burn-pit exposure.
Under federal law, veterans who are medically retired due to “combat related” injuries—a category that includes conditions caused by “instrumentalities of war”—are entitled to tax-free retirement benefits. The Army Physical Evaluation Board (PEB), nonetheless, concluded that SFC Smoke, LTC McIntyre, and numerous other medically retired veterans did not suffer from combat-related injuries, based on a PEB policy that burn pits are not “instrumentalities of war” except when being used to burn things like spent ammunition, ordinance, or military vehicles. The PEB’s policy was contrary to the Army’s own policy for administering Combat-Related Special Compensation, under which burn pits are treated as “instrumentalities of war.”
In the settlement, the Army agreed to issue a new internal policy defining open-air burn pits located in combat zones as “instrumentalities of war” under 26 U.S.C. § 104(b)(3)(B) for purposes of Army disability determinations. The Army has posted the revised policy on its website.
The Army corrected the records of the named plaintiffs to reflect a combat-related designation that confers a tax-exemption on their medical retirement pay. The Army has also agreed as part of the settlement to review the records of all other veterans who were retired for disabilities presumed to be caused by burn pits under the PACT Act and determine whether their conditions merit combat-related determinations under its new policy. The Army will make reasonable efforts to complete this review of prior determinations for other veterans within six months.
“The Department of Defense estimates that 3.5 million service members were exposed to burn pits, and far too many have since faced serious, life-altering illnesses,” said Esther Leibfarth, Senior Managing Attorney at NVLSP. “This settlement ensures the Army will finally treat burn pits as what they are—instrumentalities of war—so Soldiers who are medically retired for burn-pit presumptive conditions are not unfairly denied the combat-related designation that makes their disability retirement pay tax-free. Importantly, the Army has committed to correcting past denials and applying this policy going forward.”
“This settlement represents a meaningful and well-deserved victory for SFC Smoke, LTC McIntyre, and the many veterans living with the lasting effects of burn-pit exposure,” said Sidley partner Daniel Hay. “Sidley has a long tradition of representing veterans, and our team was honored to have been able to help these veterans secure the full benefits they earned in service of our Nation.”
The Sidley team also includes Emily Wexler and Tim Cunningham, Jr. The NVLSP team also includes Director of Lawyers Serving Warriors® Rochelle Bobroff and Staff Attorney Amy Fulmer.
If you are a veteran from any of the branches who was denied combat-related findings for PACT Act conditions during the Disability Evaluation System process, NVLSP encourages you to email lsw.classaction@nvlsp.org to learn more about this case. See NVLSP’s Frequently Asked Questions (FAQs) about the Smoke litigation and settlement here.
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 $7.2 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 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, 202-621-5698, patty@nvlsp.org
For Sidley: Matt Messinger, 312-456-4009, mmessinger@sidley.com