Navy Veteran Mesothelioma Claims: VA Benefits, Trust Funds, and Civil Litigation

The Three Paths at a Glance

If the Veteran Served Aboard Ship or in a Shipyard, That History May Shape Every Path

The National Cancer Institute's asbestos fact sheet states that "the shipbuilding industry has used asbestos to insulate boilers, steam pipes, and hot water pipes." It says asbestos use "increased greatly during World War II," and that health hazards from asbestos fibers "have been recognized in workers exposed in the shipbuilding trades."

Mesothelioma is the disease at the center of these claims. NCI describes it as "a relatively rare cancer of the thin membranes that line the chest and abdomen." According to the International Agency for Research on Cancer, as NCI reports it, there is sufficient evidence that asbestos causes mesothelioma, and "it is thought that most mesotheliomas are due to asbestos exposure." Disease in the lining of the lungs is called pleural; in the lining of the abdomen, peritoneal. The site covers each on its pages about pleural mesothelioma claims and peritoneal mesothelioma claims.

The VA's public health page on asbestos lists work in which veterans may have been exposed, including "mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacturing and installation of products such as flooring and roofing."

The gap in time is one reason this history matters. NCI says "it can take from 10 to 40 years or more for symptoms of an asbestos-related condition to appear." The VA page gives a range of "20 to 50 years." Records from long ago may therefore carry as much weight as anything recent. Every path starts from two facts, a diagnosis and a history of exposure, and neither one alone decides any claim.

For a family, a natural starting point is often recalling where the veteran served, which ships or yards were involved, and what the job was. Sorting out which parts of that history connect to which path is something a conversation with an attorney can help with.

If the Illness Is Tied to Service, a VA Disability Claim May Be Available

The VA's asbestos disability page says a veteran "may be eligible" for disability compensation based on asbestos exposure if "both of these must be true": "You have a health condition that's caused by exposure to asbestos," and "You had contact with asbestos while serving in the military."

The same page names three documents the VA asks for:

• medical records that state the health condition;
• service records that list the veteran's job or specialty;
• a doctor's statement that there is a connection between the contact with asbestos during military service and the health condition.

That third item is often called a medical nexus: a medical opinion linking the disease to the exposure. The VA page says compensation "provides tax-free monthly payments," and that a veteran with a disability rating "may also be eligible for VA health care and other benefits." These are administrative benefits paid by a federal agency, not damages awarded by a court, and they do not depend on proving that any company did anything wrong.

Approval is not automatic. The public health page says, "VA decides these claims on a case-by-case basis." A claim can be filed online, "by mail, in person, or with the help of a trained professional." The site's page on the veterans mesothelioma lawyer topic covers the VA process in more detail.

A VA claim runs on its own track. Trust claims and civil litigation are separate mechanisms, and how they interact depends on the facts of each case. It can help to see the VA claim as the path tied to service, and the other two as paths tied to the products and the companies behind them.

If the Manufacturer Filed for Bankruptcy, a Section 524(g) Trust Claim May Still Be Open

Many families learn that a company whose products were aboard ship went through bankruptcy. That does not necessarily close the path to that company. Section 524(g) of the federal Bankruptcy Code, 11 U.S.C. § 524(g), lets a court approve a special arrangement when a company with asbestos liabilities reorganizes under chapter 11. The court that confirms the plan may issue an injunction, a court order, that stops people from suing the company directly over claims a trust is to pay "in whole or in part." For a veteran, the claim against that company generally goes to the trust rather than to court.

The trust is to take on the liabilities of a debtor that had been named as a defendant in "personal injury, wrongful death, or property-damage actions seeking recovery for damages allegedly caused by the presence of, or exposure to, asbestos or asbestos-containing products." It is funded "in whole or in part by the securities of 1 or more debtors" and by the debtor's obligation to make future payments, and it is "to use its assets or income to pay claims and demands."

The law also looks ahead to people who are not yet sick, which matters for a disease that can appear decades later. The court must find, among other things, that the debtor "is likely to be subject to substantial future demands for payment," and that the trust will operate through mechanisms giving "reasonable assurance" that it "will value, and be in a financial position to pay, present claims and future demands that involve similar claims in substantially the same manner." Put simply, the trust is meant to treat people who get sick later the same way it treats people filing now.

A trust claim is a request for payment made to one of these trusts under its own procedures, not a lawsuit. Each trust works under its own plan, so who qualifies and what proof is required differ, and filing with one says nothing about eligibility with another. The questions a family may weigh are which companies' products the veteran worked around and whether any of them set up a trust, which is a part of the process where an attorney can help. The site's page on asbestos trust fund claims explains the mechanism further.

If the Company Is Still in Business, a Civil Mesothelioma Claim May Apply

A civil lawsuit is a case filed in court against a business that is still operating. State law governs most of these cases, so limitation periods, fault rules and damages rules differ from state to state.

Most civil mesothelioma claims rest on one or both of two theories. Product liability holds a maker or seller responsible for harm caused by a product that was defective or sold without adequate warnings. Premises liability holds an owner or operator of a property responsible for harm caused by unsafe conditions there. Which fits depends on where the exposure happened and who controlled it.

A negligence claim comes down to four questions the evidence has to answer:

• Did the company owe a duty of care to the veteran who was exposed?
• Did it breach that duty?
• Did the breach cause the disease? This is the question of causation.
• Did the veteran suffer harm the law recognizes? This is the question of damages.

A product liability claim asks, in general terms, whether the product had a defect and whether that defect caused the injury. A diagnosis does not answer any of these questions by itself.

If a civil claim succeeds, the damages allowed, any limits and the rules after a death are set by state law. Surviving family members may bring a wrongful-death claim for their own losses from a death. A survival claim is a claim the person who died could have brought, continued by an estate. The site's page on the mesothelioma statute of limitations explains how filing deadlines vary by state.

Because state law decides so much, which state's rules could apply and which companies the veteran's history points to are questions a conversation with an attorney can help sort out.

Why the Government Generally Cannot Be Sued Under Feres, and Which Paths Remain

Many Navy families ask why they cannot simply sue the government that sent them aboard. The answer traces to Feres v. United States, 340 U.S. 135 (1950). In that case, the Supreme Court held that the federal government generally is not liable under the Federal Tort Claims Act for injuries to service members that arise out of or are incident to military service.

For a veteran exposed during service, this holding generally closes the door to a direct tort suit, a suit over a civil wrong, against the United States over that exposure. That can be frustrating news. But Feres concerns suits against the Government. It does not address claims against private companies that made or sold the products a veteran worked around.

That is why the remaining paths matter. VA disability compensation is the federal benefit tied to service. Trust claims and civil suits against private manufacturers are the routes for claims against companies. The practical question shifts to the products: which ones were aboard, and who made them. Whether any path is available still depends on the individual facts.

If a Family Is Gathering Records, the Same Papers Support All Three Paths

The same core records tend to support every path, though each path weighs them differently. They usually fall into three groups.

Service records. The National Archives military records page explains that "most veterans and their next of kin can obtain free copies of their DD Form 214 (Report of Separation)" and other service records. Records of service members who separated "62 (or more) years ago" are open to the public for a copying fee; records of more recent service "are subject to access restrictions." The page says "all requests must be signed and dated by the veteran or next of kin," and that response times "vary depending on the complexity of your request." The VA lists service records "that list your job or specialty" among the documents it asks for.

Medical records. Pathology reports, imaging and treatment notes document the diagnosis. NCI notes that tests on tissue can detect asbestos fibers but "cannot determine how much asbestos an individual may have been exposed to." That is one reason medical records document the disease without settling its cause.

Records tying service to asbestos products or places. Work histories, the names of coworkers who remember the job, and records describing equipment or materials all fit here. For trust claims and civil suits, identifying the products is often central. A gap in one kind of record can affect every path at once.

If it would help to talk through how the records in a particular history line up with a VA claim, a trust claim or a civil case, you can request a case evaluation with our attorney.