Two veterans filed a class action lawsuit against him Army for refusing to classify burn pit exposure illnesses as combat-related, a designation that would make them medically retired payment tax free.

Sgt. retiring. 1st Class Kyle Smoke and retired Lt. Col. Jennifer McIntyre filed suit October 15 in the US District Court in Washington, DC, for the pensions they were awarded after being exposed to burn pits during their time. implementations in Iraq and Afghanistan in McIntyre’s case.

According to court documents, Smoke has debilitating asthma that has made him unfit for duty, while McIntyre has been diagnosed with metastatic breast cancer, which has spread to her liver and lymph nodes.

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Both conditions are taken into account by Department of Veterans Affairs be caused by exposure to burn pits.

In Smoke’s case, the Army’s Informal Physical Evaluation Board, or PEB, ruled that the soldier should be medically retired for his condition, but that the illness was not the result of a combat-related injury.

An official board disagreed, saying the disability was combat-related, caused by an “instrument of war” – burn pits that were used in wartime locations where proper waste disposal was a challenge. A board member disagreed with that assessment, and a higher adjudicating body, known as the Army Physical Disabilities Agency, or PDA, ruled that Smoke’s illness warranted medical retirement but was not related of battle.

The Army later approved Smoke’s asthma claim for special combat-related compensation, saying the disease was a “combat-verified disability related to an instrument of war,” according to the documents.

However, Smoke receives a regular medical retirement payment and must pay taxes on it.

McIntyre retired from the military after 19 years, her informal PEB concluding that her illness was service-related but not combat-related. The official PEB supported this conclusion, despite her argument that her cancer was diagnosed while serving in a combat zone.

The PDA upheld this decision, concluding that burn pits do not automatically constitute an instrument of war.

Soldiers argue that incinerators should be considered necessities of war, given that there were few other options for disposing of waste in combat zones. And I claim that those medically retired from passing PACT Act — 10,000 military personnel in fiscal year 2022 alone — would not have to pay taxes on their benefits.

“The Army (Physical Assessment Board) has a systemic practice and policy of rejecting combat-related findings for medical retirement purposes for PACT Act unfit conditions on the basis that military burn pits do not qualify as (instruments of war) “, their lawyers wrote. in the court files.

The Army’s practice of medically withdrawing soldiers for PACT Act conditions is against the law, they added.

“The Army’s refusal to classify burn pits as instruments of war during the Disability Evaluation System process ignores the fact that Department of Defense guidelines define military burn pits only in the context of combat, which is unique to the military,” senior al. Veterans Legal Services Program. Attorney General Esther Leibfarth said in an Oct. 30 statement.

Incineration pits have been used in Iraq, Afghanistan and elsewhere to incinerate trash generated at military installations overseas, including plastics, medical waste and industrial waste.

The PACT Act, signed into law in August 2022, expanded health care and benefits for post-9/11 veterans exposed to sinkholes and other environmental hazards at those facilities. It designated about two dozen illnesses and related illnesses as presumed to be related to military service, clearing the way for affected veterans to receive prompt medical care and disability compensation.

Advocates cited the PACT Act in support of their argument that the conditions are combat-related, and that Defense Department guidance says that if a disability occurred “during any period of service as a result of … injury or disease caused by smoke, gases . , or explosion of munitions, vehicles, or military material,” the criteria for combat are met.

The lawsuit seeks to overturn decisions by soldiers with a medical condition listed in the PACT Act who received medical retirement compensation by granting them tax-exempt combat-related designations.

“Soldiers who bravely serve our nation should know that injuries sustained in the line of duty are fully covered by the benefits to which they are entitled,” said Emily Wexler, pro bono counsel at Sidley Austin, a Chicago law firm, in – a statement.

The Army did not respond to a request for comment by publication. Historically, the Department of Defense and the military services do not comment on ongoing litigation.

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