Section 1 Short title
This Act may be cited as the “Protection for Veterans’ Burn Pit Exposure Act of 2018”.
Protection for Veterans’ Burn Pit Exposure Act of 2018
A BILL
To amend title 38, United States Code, to establish presumptions of service connection for illnesses associated with open burn pits, to direct the Comptroller of the United States to establish the Open Burn Pit Advisory Commission, and for other purposes.
Sec. 2 Presumptions of service connection for illnesses associated with open burn pits
In general— Subchapter II of chapter 11 of title 38, United States Code, is amended by adding after section 1118 the following new section:
“1119. Presumptions of service connection for illnesses associated with exposure to open burn pits
“(a) Establishment
“(1) For purposes of section 1110 of this title, and subject to section 1113 of this title, each illness described in paragraph (2) becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated by covered service, notwithstanding that there is no record of evidence of such illness in the covered veteran during the period of covered service.
“(2) An illness described in this paragraph is any diagnosed or undiagnosed illness that—
“(A) the Secretary determines in regulations prescribed under this section to warrant a presumption of service connection by reason of having a positive association with exposure to toxic airborne chemicals and fumes caused by open burn pits; and
“(B) becomes manifest within the period, if any, prescribed in such regulations in a covered veteran.
“(3) For purposes of this subsection, a covered veteran who has an illness described in paragraph (2) shall be presumed to have been exposed to toxic airborne chemicals and fumes caused by open burn pits unless there is conclusive evidence to establish that the covered veteran was not exposed to toxic airborne chemicals and fumes caused by open burn pits in the course of covered service.
“(b) Determinations
“(1) The Secretary shall determine whether a positive association exists between—
“(A) the exposure of humans or animals to a burn pit; and
“(B) the occurrence of a diagnosed or undiagnosed illness in humans or animals.
“(2) In making determinations under this subsection, the Secretary shall take into account any report from the Open Burn Pit Advisory Commission.
“(3) In evaluating a report for the purpose of making a determination under this subsection, the Secretary shall take into consideration whether the results—
“(A) are statistically significant;
“(B) are capable of replication; and
“(C) withstand peer review.
“(4) An association between the occurrence of an illness in humans or animals and exposure to toxic airborne chemicals and fumes caused by open burn pits shall be considered to be positive for purposes of this subsection if the credible evidence for the association is equal to or outweighs the credible evidence against the association.
“(5) Not later than 60 days after receiving a report from the Open Burn Pit Advisory Commission regarding an illness, the Secretary shall make a determination under this subsection regarding that illness.
“(c) Regulations
“(1) If the Secretary determines under subsection (b) that a presumption of service connection is warranted for an illness, the Secretary shall issue proposed regulations setting forth the determination not later than 60 days after making the determination.
“(2)
“(A) If the Secretary determines under subsection (b) that a presumption of service connection is not warranted for an illness described in subsection (a)(2), the Secretary shall publish in the Federal Register a notice of that determination not later than 60 days after making the determination. The notice shall include an explanation of the evidence and scientific basis for that determination.
“(B) If an illness already presumed to be service connected under this section is subject to a determination under subparagraph (A), the Secretary shall issue proposed regulations removing the presumption for the illness not later than 60 days after publication of the notice of a determination that the presumption is not warranted. The notice shall include an explanation of the evidence and scientific basis for that determination.
“(3) Not later than 90 days after the date on which the Secretary issues any proposed regulations under this subsection, the Secretary shall issue final regulations. Such regulations shall be effective on the date of issuance.
“(4) Whenever the presumption of service connection for an illness under this section is removed under this subsection—
“(A) a veteran who was awarded compensation for the illness on the basis of the presumption before the effective date of the removal of the presumption shall continue to be entitled to receive compensation on that basis; and
“(B) a survivor of a veteran who was awarded dependency and indemnity compensation for the death of a veteran resulting from the illness on the basis of the presumption before that date shall continue to be entitled to receive dependency and indemnity compensation on that basis.
“(d) Definitions—In this section:
“(1) The term “covered veteran” means a veteran who, on or after September 11, 2001—
“(A) was deployed in support of a contingency operation while serving in the Armed Forces; and
“(B) during such deployment, was based or stationed at a location where an open burn pit was used.
“(2) The term “open burn pit” means an area of land that—
“(A) is designated by the Secretary of Defense to be used for disposing of solid waste by burning in the outdoor air; and
“(B) does not contain a commercially manufactured incinerator or other equipment specifically designed and manufactured for the burning of solid waste.”
Clerical amendment— The table of sections at the beginning of such chapter is amended by inserting after the item relating to item 1118 the following new item:
Sec. 3 Open Burn Pit Advisory Commission
Establishment— Not later than 90 days after the date of the enactment of this Act, the Comptroller General of the United States shall establish a commission to be known as the “Open Burn Pit Advisory Commission” (in this section referred to as the “Commission”).
Duties of Commission— The Commission shall make recommendations to the Secretary of Veterans Affairs regarding what illnesses have positive associations with exposure to toxic airborne chemicals and fumes caused by open burn pits. In making such recommendations, the Commission shall consider the following:
Whether each illness specified in section 1112 of title 38, United States Code, has a positive association with exposure to toxic airborne chemicals and fumes caused by open burn pits.
The letter issued by the Director of the Compensation and Pension Service of the Department of Veterans Affairs, dated April 26, 2010, titled “Training Letter 10–03 Environmental Hazards in Iraq, Afghanistan, and Other Military Installations”.
The report issued by the National Academies of Sciences, Engineering, and Medicine on October 31, 2011, titled “Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan”.
The report issued by the National Academies of Sciences, Engineering, and Medicine on February 28, 2017, titled “Assessment of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry”.
Information submitted by a veterans service organization.
Sound medical and scientific information, reports, or analyses available to the Commission that—
are statistically significant;
are capable of replication; and
withstand peer review.
Membership—
Number and appointment— The Commission shall be composed of 15 members appointed by the Comptroller of the United States.
Qualifications—
Research— The Comptroller shall select members from the medical community who have distinguished backgrounds in biomedical, scientific, or epidemiological research.
Experience with veterans or members of the Armed Forces— A majority of the members shall be veterans, members of the Armed Forces, or have experience providing health care to veterans or members of the Armed Forces.
Prohibition on eligibility for benefits related to exposure to open burn pits— No member may be eligible for any benefit under section 1110 of title 38, United States Code, pursuant to regulations prescribed by the Secretary of Veterans Affairs under section 1119 of such title.
Terms—
In general— Each member shall be appointed for renewable three-year terms.
Vacancies— A vacancy in the Commission shall be filled in the manner in which the original appointment was made. Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member's term until a successor has taken office.
Basic pay—
Rates of pay— Members shall be paid at a rate equal to level IV of the Executive Schedule under section 5315 of title 5, United States Code.
Prohibition of compensation of Federal employees— No member of the Commission who is a full-time officer or employee of the United States may receive additional pay, allowances, or benefits by reason of service on the Commission.
Travel expenses— Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter 1 of chapter 57 of title 5, United States Code.
Quorum— A majority of members of the Commission shall constitute a quorum but a lesser number may hold hearings.
Chairperson— The Comptroller shall designate a member of the Commission as the Chairperson of the Commission at the time of appointment, for the initial term of that member.
Meetings— The Commission shall meet at the call of the Chairperson.
Powers of Commission—
In general— Subject to such review as the Comptroller General deems necessary to assure the efficient administration of the Commission, the Commission may—
employ and fix the compensation of an Executive Director (subject to the approval of the Comptroller General) and such other personnel as may be necessary to carry out its duties;
seek such assistance and support as may be required in the performance of its duties from appropriate Federal departments and agencies;
enter into contracts or make other arrangements, as may be necessary for the conduct of the work of the Commission;
make advance, progress, and other payments that relate to the work of the Commission;
provide transportation and subsistence to persons serving the Commission without compensation; and
prescribe such rules and regulations as it determines necessary with respect to the internal organization and operation of the Commission.
Hearings and sessions— The Commission may administer oaths or affirmations to witnesses appearing before it. Any such hearing shall be open to the public.
Powers of Members and agents—
In general— Any member or agent of the Commission may, if authorized by the Commission, take any action which the Commission is authorized to take by this section.
Obtaining official data—
The Commission may secure directly from any department or agency of the United States information necessary to enable it to carry out this section. Upon request of the Chairperson of the Commission, the head of that department or agency shall furnish that information to the Commission.
In order to carry out its functions, the Commission shall—
utilize existing information, both published and unpublished, when possible, collected and assessed either by its own staff or under other arrangements;
carry out, or award grants or contracts for, original research and experimentation, when existing information is inadequate; and
adopt procedures allowing any interested party to submit information for the Commission's use in making reports and recommendations.
Direction to the National Academy of Medicine— The Commission may direct the President of the National Academy of Medicine to conduct studies of illnesses described in subsection (b).
Expenditures— The Commission may make such expenditures for services and materials for the purpose of carrying out this section as the Commission considers advisable from funds appropriated for that purpose.
Oversight—
Access to records— The Comptroller General shall have unrestricted access to all deliberations, records, and data of the Commission, immediately upon request.
Audit— The Commission shall be subject to periodic audit by the Comptroller General.
Reports—
Reports on recommendations— The Commission shall submit to the Secretary of Veterans Affairs and to Congress a report regarding each recommendation under subsection (b) not later than 90 days after making such recommendation. In any such report that includes a recommendation that the Secretary determine that an illness does not have positive association with exposure to toxic airborne chemicals and fumes caused by open burn pits, the Commission shall include an explanation of the evidence and scientific basis for such recommendation.
Annual report— The Commission shall submit to the Secretary of Veterans Affairs and to Congress a report not later than one year after the date of the enactment of this Act and annually thereafter. Each annual report shall include the following with regards to the preceding year:
Recommendations made by the Commission under subsection (b).
A review of information described in paragraphs (1) through (6) of subsection (b) that the Commission has reviewed relating to illnesses for which the Commission has not yet made a recommendation under that subsection.
Quinquennial report— The Commission shall submit to the Secretary of Veterans Affairs and to Congress a report during the fifth year after the date of the enactment of this Act and every five years thereafter. Each such report shall include the following:
A summary of the information specified in subparagraphs (A) and (B) of paragraph (2) with regards to the preceding five years.
An estimate of when the Commission will make a recommendation regarding each illness described in subparagraph (B) of paragraph (2).