CRSC for Burn Pits-related Health Issues – Burn Pits Designated as “Instrumentalities of War”
On March 6, 2026, the U.S. Army settled Smoke et al. v. Driscoll, a class action lawsuit filed on behalf of Army veterans who were denied a combat related designation by the Physical Evaluation Board (PEB) for unfit disabilities presumed to be caused by exposure to military burn pits. As a result, the Army must now acknowledge that unfit disabilities caused by exposure to military burn pits are combat related. This is a hard-fought victory for numerous Army veterans who were wrongfully denied combat related tax exemptions for disabilities presumed to be caused by exposure to burn pits under the PACT Act.
What is the PACT Act?
The PACT Act was enacted on August 10, 2022 and expanded VA benefits for eligible veterans by establishing a “presumption of service connection for certain diseases associated with exposure to burn pits and other toxins.” The PACT Act requires the VA to presume that certain diseases associated with exposure to burn pits were “incurred in or aggravated during military service even if there is no record of evidence of the disease during the period of service.”
What is an “Instrumentality of War”?
An “instrumentality of war” is defined as a vehicle, vessel, or device designed primarily for military service and in use by a military service at the time of the occurrence or injury. During the Disability Evaluation System (DES) process, the Army is required to determine whether a Servicemember’s unfit injuries or diseases were caused by an instrumentality of war. The “instrumentality of war” criteria is met if the unfit injury or disease was incurred during service.
How did Smoke et al v. Driscoll change the Army’s definition of “Instrumentalities of War”?
The Army published a new policy following the Smoke et al v. Driscoll settlement. The new policy determines that open-air burn pits which are located in combat zones, are considered instrumentalities of war for purposes of combat-related findings. The policy defines a combat zone to include (1) a qualified hazardous duty area designated by Congress where Soldiers earn hostile fire pay or imminent danger pay, and (2) an area outside the combat zone or qualified hazardous duty area when the DoD certifies that such service is in direct support of military operations in a combat zone or qualified hazardous duty area, and where Soldiers receive hostile fire pay or imminent danger pay.
Will the Army retroactively apply combat-related designations to cases?
The Army agreed to review their records and issue revised determinations consistent with the settlement agreement. The Army’s review will identify Army Servicemembers who were medically discharged on or after August 10, 2022, for a condition qualifying under the PACT Act, but who were not assigned a combat-related designation. The Army agreed to make reasonable efforts to complete their review and any revisions within six months of the settlement date, which was March 6, 2026. For current and future DES cases, the Army will apply the new policy to evaluate unfit disabilities caused by burn pit exposure.
What is the benefit of having a combat-related designation from the PEB?
The PEB’s designation of combat related status may allow Reserve Component Servicemembers to retain military technician (dual status) employment, subject to additional requirements set out in the relevant law. Finally, the PEB’s designation of combat-related status eliminates federal income taxes from disability severance pay.
Is a combat-related designation from the PEB the same as Combat Related Special Compensation (CRSC)?
No, the PEB’s determination of combat-related status is awarded within the Army DES process. The PEB is required to evaluate each unfit injury or illness for combat-related status. CRSC is a separate benefit that retirees can apply for through their military branch. Military retirees, including medical retirees, may apply for CRSC for any VA service-connected disability believed to be combat related, even if the condition is not unfit or determined combat related by the PEB. The PEB’s determination that combat-related designation applies does not guarantee that CRSC will be awarded.
Conclusion
The Smoke et al v. Driscoll settlement is an important decision for Servicemembers who incurred illnesses or injuries as a result of exposure to military burn pits. If you were medically retired from the Army after August 10, 2022 for a PACT Act condition but were not granted combat-related status, your case should be reviewed according to the updated Army policy.
Need Assistance? Contact Our Firm.
Citizen Soldier Law is ready to assist Servicemembers throughout all stages of the Army’s DES process and with CRSC claims. Our experienced legal team understands the intricacies of military disability law and is committed to ensuring that your rights are protected. Contact our firm for expert guidance and support in managing your medical board process and retirement CRSC claims.
Contact us and speak to experienced IDES lawyers who worked in both the Navy and Army’s IDES system. If you are eligible, we’ll make sure that your application includes what you need to achieve the right outcome in your case.
What we have written is not legal advice. We hope that you have found this helpful.
