The Department of Veterans Affairs (VA) is urging former service members whose illnesses may be linked to contamination at Camp Lejeune in North Carolina to seek disability benefits — even if doing so might complicate future quests for legal recourse.
As of the end of last month, the VA said that it had received 102,265 disability claims related to exposure to cancer-linked compounds at Marine Corps Base Camp Lejeune since it began tracking such submissions more than a decade ago.
But for veterans who were exposed and have yet to submit claims, landmark legislation passed last year could complicate their decision.
The Honoring Our PACT Act, an expansive bill signed into law in August, seeks to make significant improvements to health care for veterans who were exposed to toxins during their service. Within it is a measure permitting lawsuits for those who suffered from contamination at Camp Lejeune.
While this long-sought provision was celebrated as a victory by veterans and their families, it comes with a catch: Any legal compensation awarded in court must be “offset” by disability claims related to Camp Lejeune exposures that the individual is already receiving.
These instructions apply to any program administered by the secretary of Veterans Affairs, Medicare or Medicaid, according to the provision.
Regardless of this caveat, however, VA officials urge veterans to move forward with their disability claims.
“VA wants to make sure that no one is dissuaded from pursuing their VA remedies,” David Barrans, a lawyer in the VA’s Office of the General Counsel, told The Hill.
“We just want to make sure that people understand that VA is not going to reduce or deny your benefits because you pursued your other remedies under the PACT Act,” Barrans added.
The Marine Corps first discovered volatile organic compounds in the drinking water generated by Camp Lejeune treatment plants in 1982, according to the Centers for Disease Control and Prevention’s Agency for Toxic Substances and Disease Registry.
The agency has since determined that exposure to contaminants such as trichloroethylene, tetrachloroethylene and vinyl chloride likely raised the risk of developing certain illnesses.
Veterans who were on active duty in Camp Lejeune for 30 days or more between Aug. 1, 1953, and Dec. 31, 1987, became eligible for free health care services if they suffered from any of 15 specific cancers and conditions, following the passage of key legislation in 2012.
The VA expanded these benefits in 2017 to include veterans, reservists and National Guard members who developed any of eight illnesses presumed to be connected to their service.
“None of that’s changed,” Jessica Pierce, a management analyst for the VA, told The Hill.
“Veterans can continue to submit claims for those presumptions of service connection or for hospital and medical care based on those other specified conditions,” Pierce added.
Camp Lejeune-related disability claims are distinct from the more than 213,000 submissions received by the VA thus far related to the broader PACT Act.
While the PACT Act does not affect Camp Lejeune disability claims, it does provide an option for legal recourse — outside the VA’s jurisdiction — to veterans and their families who spent time at the base.
“There’s essentially two remedies here, the VA benefits remedy and the tort claim or the damage claim remedy,” Barrans said, “The VA remedy has not changed.”
The Camp Lejeune Justice Act, folded into the PACT Act, allows those harmed by the toxins on base to file a lawsuit in the U.S. District Court for the Eastern District of Northern Carolina.
This measure overrides North Carolina’s restrictive “statute of repose,” which prohibits lawsuits if more than 10 years have passed since the contaminating event.
“Congress has allowed people who were injured by the Camp Lejeune water to bring an action in court, through the administrative and then judicial process,” Barrans said.
Plaintiffs must first file an administrative claim with the Navy’s Office of the Judge Advocate General and await a settlement or denial prior to filing a lawsuit.
VA benefits and health care services are distinct from this process and “will not be impacted” if an individual files a lawsuit, according to a fact sheet issued to veterans.
The same may not true in the opposite direction, however.
If a veteran is already receiving VA benefits related to Camp Lejeune, then the court award “will be offset by the amount of any disability award,” the fact sheet warns.
“The law says you have to reduce that award by the amount of any VA benefits that the VA is paying for the same condition,” Barrans confirmed.
The role of the VA in that process is minimal — limited to providing information that the courts or the Justice Department request about the payments a plaintiff has been receiving for injuries related to Camp Lejeune, according to Barrans.
“How the courts will actually apply that to determine the offset is something that the courts will have to decide,” he said.
“I don’t think we have clear information at this point that we could provide on how that will work because VA doesn’t control that process,” Barrans added.
Quantifying how such an offset might occur is currently impossible due to all the complex factors that would contribute to such a calculation, according to Barrans.
Some such factors could involve accounting for the value of future disability payments or assessing health care services received for multiple conditions — but only some of which are related to Camp Lejeune, he explained.
“There would be some work that would have to go into determining how much of that VA benefit payment is attributable to the Camp Lejeune injury,” Barrans said.
The Department of Justice declined to comment when asked if further details are available as to how the offsetting process will occur.
Acknowledging that “there’s potential for confusion in the law,” Barrans said that the VA is encouraging veterans to apply for their disability benefits nonetheless.
“VA’s primary message is always we want veterans to apply for the VA benefits they’ve earned and the VA health care that they’ve earned,” he said.
“And at the same time, we don’t want to dissuade anyone from pursuing any other remedies.”