Veterans File Class-Action Lawsuit Over Combat-Related Status for Burn Pit-Related Illnesses
Two veterans are challenging the U.S. Army’s refusal to classify burn pit-related illnesses as combat-related in a class-action lawsuit. If successful, this case could grant tax-free status for medical retirement pay to thousands of veterans suffering from conditions attributed to toxic burn pit exposure.
Background on the Class-Action Lawsuit
Retired Sgt. 1st Class Kyle Smoke and retired Lt. Col. Jennifer McIntyre filed the lawsuit on October 15, 2024, in the U.S. District Court in Washington, D.C. Both Smoke and McIntyre developed serious health conditions linked to burn pit exposure during their deployments, and they are now advocating for these conditions to be classified as “combat-related,” which would make their medical retirement benefits tax-free.
Health Conditions and Army’s Evaluation Process
According to court filings, Smoke developed debilitating asthma after his deployment to Iraq, a condition that rendered him unfit for service. McIntyre, who served in both Iraq and Afghanistan, was diagnosed with metastatic breast cancer that has since spread to her liver and lymph nodes. Both conditions have been recognized by the Department of Veterans Affairs (VA) as connected to burn pit exposure. However, the Army’s Physical Evaluation Board (PEB) determined that their conditions were not combat-related, a decision that affects the tax status of their retirement pay.
Related: 2024 Veterans Day Free Meals, Deals, and Discounts for Military Personnel
The Physical Evaluation Board's Controversial Decisions
Smoke’s case involved an initial ruling from the Army’s informal PEB, which classified his asthma as non-combat-related. A subsequent formal board reversed this decision, acknowledging that the burn pits used in combat zones should be considered an “instrumentality of war.” However, a higher-level Army adjudicating body, the Physical Disability Agency (PDA), ultimately classified Smoke’s illness as non-combat-related, denying him the tax-free benefit. Despite an approval for Combat-Related Special Compensation for his asthma, Smoke still receives taxable retirement pay.
McIntyre’s case followed a similar trajectory. After 19 years of service, she was diagnosed with cancer and medically retired. Her PEB determined that her cancer was related to her service but not classified as a combat-related injury, a decision that was upheld by the PDA. Despite McIntyre’s argument that her condition developed in a combat zone and was directly linked to burn pit exposure, the Army maintained that burn pits do not qualify as instruments of war.
Argument for Combat-Related Classification Under the PACT Act
The plaintiffs argue that the Army’s refusal to classify burn pit-related conditions as combat-related contradicts the intent of the PACT Act. Signed into law in August 2022, the PACT Act expanded healthcare and benefits for post-9/11 veterans exposed to environmental hazards such as burn pits. It designated approximately two dozen illnesses, including cancers and respiratory diseases, as presumptively service-connected, streamlining benefits for veterans impacted by toxic exposure.
According to the lawsuit, the PACT Act establishes that conditions resulting from toxic exposure in combat zones should be considered combat-related. Attorneys for Smoke and McIntyre argue that the Army’s stance violates Department of Defense policies, which define combat-related injuries as those incurred “during any period of service as a result of … injury or sickness caused by fumes, gases, or explosions related to military materials.” By refusing to consider burn pits as instruments of war, the Army denies veterans the full benefits promised by the PACT Act.
Seeking Justice for Veterans with PACT Act Conditions
The lawsuit not only addresses Smoke and McIntyre’s individual cases but also seeks to overturn decisions for all soldiers with PACT Act-listed medical conditions who received medical retirement without a combat-related designation. If the plaintiffs succeed, affected veterans would receive reclassified, tax-free retirement compensation.
“The Army’s Physical Evaluation Board has a systemic practice of denying combat-related status for medical retirement in cases involving PACT Act conditions, based on the argument that military burn pits are not instruments of war,” said Esther Leibfarth, Senior Managing Attorney at the National Veterans Legal Services Program. She emphasized that burn pits were a wartime necessity, used widely in combat zones where other waste disposal options were unavailable.
Broader Implications of the Lawsuit
If the court rules in favor of the plaintiffs, this case could have significant implications for veterans’ benefits, potentially impacting thousands of soldiers who were exposed to burn pits in combat zones. Emily Wexler, pro bono counsel at Sidley Austin LLP, voiced her support, stating, “Veterans who risk their lives in service to our nation deserve to have their service-connected injuries fully recognized. This includes ensuring their retirement pay reflects the full scope of their sacrifice.”
The lawsuit seeks to grant veterans who suffer from PACT Act-designated conditions a combat-related status for tax-free retirement pay. This status would acknowledge the dangers faced by soldiers exposed to burn pits and provide more robust compensation for service-related injuries.
The Army's Response and Next Steps
As of publication, the Army has not commented on the ongoing litigation. Historically, the Department of Defense and military services do not comment on active cases. The plaintiffs hope this lawsuit will result in a ruling that recognizes burn pits as combat-related hazards, ensuring that all affected veterans receive the full retirement benefits they have earned through their service.
