Thomas J. Kenney III’s deployment to Afghanistan in 2012 was the last before he retired from the U.S. Army.

The job was important — leading the Provincial Reconstruction Team out of Forward Operating Base Gardez, in the Paktya province of Afghanistan. From Kenney’s first day there, an open burn pit a few hundred yards from his team’s living quarters incinerated the base’s trash, its smoke permeating the atmosphere.

Now, more than five years after closing down the base — which was in the mountains and could be reached safely only by helicopter — the retired 69th Air Defense Artillery Brigade operations sergeant major is fighting the Department of Veterans Affairs. He is seeking care for follicular lymphoma grade 3b cancer (non-Hodgkin lymphoma), a condition he believes is directly related to his exposure to the toxic smoke emanating from the open burn pit.

“It was so caustic; the smoke, you would wake up in the morning, and it would just choke you,” said Kenney, who is now 53 and lives in the Killeen area.

Yet the VA refuses to admit his cancer could be related to exposure, consistently stating in his exams that his illness is “not related to a specific exposure event/environmental hazard experienced during actuve (sic) service in Southwest Asia.” While he was still in the Army, Kenney had suspicious masses on his lymph nodes removed. Biopsies on the masses led the VA later to link their type to the cancer that was detected two years after he retired.

VA POSITION

The VA does not have the authority to automatically presume a sick veteran’s illness could be linked to exposure, said Dr. Ralph Erickson, the VA’s chief consultant on post-deployment health. He spoke during a hearing by the Congressional VA Subcommittee on Health on June 7 in Washington, D.C.

Another VA official, however, gave authority for claims examiners to consider exposure, in a training letter accompanied by an environmental report of hazards provided to the Herald by Kenney.

“Veteran’s lay statement of burn pit exposure generally will be sufficient to establish the occurrence of such exposure if the Veteran served in Iraq, Afghanistan or Djibouti,” according to VA Training Letter 10-03 dated April 26, 2010.

VA claims examiners are supposed to include a statement of exposure when requesting additional exams or opinions and they must actively review cases for potential exposure during the claims process, according to the 2010 letter that was addressed to all VA regional offices. 

The training letter was rescinded in 2016, said a VA spokeswoman Friday.

Some of the information contained in the letter was incorporated into Veterans Benefits Administration’s Compensation Service Procedures Manual, according to Grace S. Lee, VA spokeswoman, who researched answers to Herald questions. At the time, the letter was intended for claims processors, not disability medical examiners.

The VA originally issued the training letter to inform claims processors about specific environmental hazard incidents the VA had learned about primarily from the U.S. Army Center for Health Promotion and Preventive Medicine. The letter provided guidance on how to handle the increasing number of claims related to environmental hazard exposures being received in VA Regional Benefits Offices.

KENNEY'S DOCUMENTATION

Kenney had that documentation, however, and said he sought treatment for respiratory ailments before he left FOB Gardez and mentioned exposure when he was later diagnosed with cancer.

“When I was over there, I went to the (Military Treatment Facility) because I was just having a hard time sleeping. I was given a CPAP for my cough, sinus issues and inability to sleep,” Kenney said. “I was coughing up black stuff, and that continued for me throughout the whole deployment with respiratory issues.”

Kenney said the VA should have followed the guidelines from that training letter in his case, he said. In addition to being treated for respiratory ailments while deployed, he listed burn pit exposure as a major health concern for him during his post-deployment health assessment when he returned in April 2013 to Fort Hood.

“The VA is supposed to do certain things when a veteran says they were exposed to certain things like burn pits while they were in Afghanistan or Iraq; they have certain steps they are supposed to follow,” Kenney said. “Those steps, in my case, they didn’t even try to follow. In fact, it’s so grievous how they treated (my case), it seems they went out of their way to not associate my cancer or any of my respiratory issues with burn pits.”

The Herald asked the VA why examiners don’t follow the letter’s recommendations regarding exposure.

A VA spokeswoman said examiners neither “err on the side of caution” nor “err on the side of the veteran.” They simply report their findings and provide an opinion when requested.

“In claims for disability and death compensation benefits, there are three necessary elements for a successful claim. There must be evidence of a disability or disease; evidence of an event such as an injury, disease or exposure to a potentially harmful substance in service; and a medical connection between the event in service and the disability or disease,” said Jessica Jacobsen, VA Dallas Office of Public Affairs, in response to a Herald request. “Examiners review all available medical and scientific evidence with respect to a claim; examine the veteran when requested; and provide an informed opinion based on their review.”

U.S. Rep. Neal Dunn of Florida, chairman of the congressional subcommittee and a physician, shared that opinion:

“Per Department guidelines, while the training letter states a veteran’s lay statement will be sufficient to establish the veteran was exposed to burn pits, the letter does not explicitly state this would qualify the veteran for a presumption as the event is only one of the three criteria that is required to establish entitlement to service connection for the purposes of disability compensation. Those criteria are: 1) incident or event in service; 2) a current diagnosis for the claimed condition; and 3) a nexus between the first two criteria.”

Lee, who collected responses from VA officials, said there is no presumption of service connection for conditions related to burn pit exposures at this time. A “presumption” is a legal term intended to relieve a veteran or claimant of a higher evidentiary burden in a claim for disability compensation. Although a claim may be made that a particular disability may be due to burn pit exposure, there must be medical and scientific evidence linking the current disability to that exposure, VA officials said through her.

That evidence likely won’t come in time to help affected veterans.

During the congressional hearing, Erickson said the research linking medical/scientific evidence to disabilities from exposure could take decades.

Kenney said that along with his medical records showing visits for treatment while in Afghanistan, he sent in a sworn statement to the VA documenting his exposure and a copy of the environmental report of FOB Gardez conducted by the Department of Defense from 2003 to 2010.

“When I signed this sworn statement that I was in Afghanistan on these dates and told them there was an open burn pit, and I had symptoms related to the exposure, that I have lymphoma I believe is associated with burn pits, then that meets this requirement for the VA to assume exposure,” he said. “This should be more than sufficient for the veteran. But the VA didn’t do it. I don’t know if the VA doctors even look at these letters and reports.”

The environmental report, called the Military Deployment Periodic Occupational and Environmental Monitoring Summary, is conducted for every military installation, including temporary posts in combat zones, and covers all environmental hazards and possible health risks. The FOB Gardez report listed possible health effects from the burn pit as eye, nose, throat and lung irritation and stated personnel who experienced unique exposures and sought medical care needed to have that specific exposure documented in a Standard Form 600 — a chronological record of medical care.

Kenney retired from the Army in 2014. Two years later, he saw his primary care physician at Carl R. Darnall Army Medical Center for severe pain. After a few tests, his doctor urgently requested he get more tests done at Darnall’s emergency center, fearing he was in imminent danger of a heart attack.

The scans came back showing an 8-by-5-by-2-inch mass next to his heart — cancer.

“The type of cancer I have doesn’t run in families. They really don’t know how I got it — it’s something where just a strange cancer popped up,” Kenney said.

His days now are consumed with periodic chemotherapy treatments, exams and fighting the VA for continued disability compensation.

“Oct. 5 will be my last maintenance treatment. Six months after that, the VA will examine me, and if I have no active cancer at the time, they will reduce my 100 percent disability rating down to residuals,” Kenney said, referring to a small percentage the VA pays for residual effects from associated treatments, such as painful scars.

According to his rating, Kenney would receive no compensation at all because his scars are rated at 0 percent.

“My life expectancy is 15 to 20 years,” he said. “When the cancer does come back, I have to go through the claim process all over again; they have to re-examine me to see that the cancer has come back and then I wait however long it takes the VA to approve the claim and reinstate my benefits.”

Kenney currently receives disability pay for his cancer because it is linked to the masses removed from his lymph nodes before he retired. However, if his health problems had been linked to burn pit exposure, his benefits would be permanent and could include the respiratory issues that keep him from mowing his lawn and golfing with his wife.

Kenney suggests other veterans with suspected burn pit exposure health problems make sure all required documents are readily available.

“Know what the regulations say, and do your research. I wish that I had started my VA claims that way,” he said. “But even after doing a claim and getting it adjudicated, you have to do even more research to find out how to get that nexus to get everything service-connected.”

dbryant@kdhnews.com | 254-501-7554

dbryant@kdhnews.com | 254-501-7554

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