Army Veterans Class Action Lawsuit: Burn Pit Illnesses Denied Combat-Related Designation

Case Overview: Two Army veterans have filed a class action lawsuit alleging the Army failed to properly classify their burn pit-related illnesses as combat-related, affecting the tax status of their medical retirement pay.

Consumers Affected: U.S. Army veterans with illnesses recognized by the VA as linked to burn pit exposure.

Court: U.S. District Court for the District of Columbia

Two U.S. Army veterans have filed a class action lawsuit against the Army, alleging it has failed to properly classify illnesses related to burn pit exposure as combat-related, which affects the tax status of their medical retirement pay. 

Filed on October 15 in the U.S. District Court in Washington, D.C., the lawsuit seeks to secure tax-free retirement benefits for veterans with burn pit-related illnesses, which the plaintiffs argue should be considered combat-related due to the unique conditions of military service.

Burn Pits and Health Risks for Veterans

Burn pits were widely used by the U.S. military in Iraq, Afghanistan, and other locations to dispose of waste on military installations. In these areas, garbage—ranging from plastics and medical waste to industrial materials—was incinerated due to limited disposal options. 

The open burning created dense smoke, releasing potentially harmful chemicals and toxins into the air. Veterans who served near these burn pits often reported health issues that they believe were caused by prolonged exposure to the toxic fumes.

The Department of Veterans Affairs (VA) has recognized several health conditions as likely linked to burn pit exposure. In August 2022, the PACT Act was signed into law, expanding health care and benefits for post-9/11 veterans exposed to burn pits and other hazardous environmental conditions. 

This law created a list of presumptive conditions, simplifying the claims process for veterans who served near burn pits and ensuring faster access to health care and disability compensation for these conditions.

Veterans Sue Army Over Disability Classification

The lawsuit was brought forward by retired Sgt. 1st Class Kyle Smoke and retired Lt. Col. Jennifer McIntyre, both of whom served in Iraq and, in McIntyre’s case, Afghanistan. 

Smoke suffers from severe asthma that rendered him unfit for duty, while McIntyre was diagnosed with metastatic breast cancer that has spread to her liver and lymph nodes. Both conditions have been recognized by the VA as linked to burn pit exposure under the PACT Act, Military.com reports.

Smoke and McIntyre allege that the Army’s refusal to classify their illnesses as combat-related has resulted in their medical retirement pay being subject to taxes, reducing their income. They argue that these conditions are a direct result of their deployments to combat zones, where exposure to burn pits was a common risk due to a lack of waste disposal alternatives.

Army Denies Combat-Related Designation for Burn Pit Illnesses

According to the lawsuit, Smoke’s and McIntyre’s medical evaluations went through the Army’s Physical Evaluation Board (PEB), which determines whether a service member’s disability is service-connected and if it qualifies as combat-related. A combat-related designation would make their retirement pay tax-free.

In Smoke’s case, the PEB initially ruled that his asthma was a service-connected condition but not combat-related. This decision was later challenged, and a formal PEB deemed his illness combat-related, citing the burn pits as an “instrumentality of war.” 

However, a higher adjudicating body, the Army Physical Disability Agency (PDA), upheld the original decision, classifying his asthma as service-connected but not combat-related, which meant his medical retirement pay would still be taxed.

For McIntyre, the PEB ruled that her cancer was service-connected but did not classify it as combat-related, despite her arguments that the diagnosis came from her time in a combat zone. The PDA upheld this decision, concluding that burn pits do not automatically qualify as combat-related.

Lawsuit Challenges Army's Interpretation of Regulations

The lawsuit argues that burn pits should be considered combat-related necessities due to the unique challenges faced in combat zones, where other waste disposal methods were not feasible. The plaintiffs maintain that burn pits were “instruments of war” used to sustain military operations, making the illnesses associated with exposure to their toxins a combat-related risk. This designation would make veterans’ medical retirement pay for PACT Act-recognized conditions tax-free.

The lawsuit claims that the Army’s refusal to classify burn pit exposure as combat-related conflicts with Defense Department instructions. According to these guidelines, if a disability was caused by exposure to “fumes, gases, or explosions” from military equipment, ordnance, or material, it can qualify as combat-related. The plaintiffs argue that the Army’s approach to burn pit-related conditions is at odds with this directive, affecting thousands of veterans who should be receiving tax-free benefits.

Veterans Seek Reclassification of Burn Pit Illnesses

Smoke and McIntyre seek to represent a class of veterans whose burn pit-related illnesses were not designated as combat-related, despite occurring in service under the conditions recognized by the PACT Act. Their lawsuit aims to overturn the decisions for veterans with PACT Act-recognized conditions who received medical retirement but did not receive a combat-related designation. 

By reclassifying these cases, the plaintiffs hope to secure tax-free status for the retirement benefits of veterans whose disabilities were linked to burn pit exposure.

Case Details

• Lawsuit: Smoke et al v. Christine Wormuth, in her official capacity as U.S. Secretary of the Army
• Case Number:  1:24-cv-02919
• Court: U.S. District Court for the District of Columbia

Plaintiffs' Attorneys

• Daniel J. Hay, Susan K. Whaley, Elizabeth Chiarello, Emily W. Wexler, and Mark C. Priebe (Sidley Austin LLP)
• Rochelle Bobroff and Ester Leibfarth (National Veterans Legal Services Program)

Are you a veteran experiencing health issues related to burn pit exposure? Share your thoughts on this lawsuit in the comments below.