Summary of the Government’s “Elective Option” for Camp Lejeune Water Contamination Claims
On September 6, 2023, the Department of the Navy (“Navy”) announced a framework for evaluating and potentially settling a limited number of claims brought under the Camp Lejeune Justice Act.
This framework, referred to as the “Elective Option” or “EO,” comes just after the first anniversary of the Camp Lejeune Justice Act on August 10, 2023.
Potential Settlement Amounts under Elective Option Framework
The following grid sets forth the compensation amounts available for each claimant under the Elective Option framework.
The compensation amount is determined solely by a claimant’s diagnosis and duration of exposure to the contaminated Camp Lejeune water, without taking into account the severity or duration of the illness, the treatment required, or the manner in which the claimant’s disease impacted their life.
Furthermore, if a claimant suffers from multiple qualifying diseases, they can only be compensated for one disease.
|Length of Exposure
|30 to 364 Days
|1 year to 5 years
|More than 5 years
|Tier 1 Qualifying Injury
|Tier 2 Qualifying Injury
Claimants who establish that a qualifying injury or disease resulted in death will be offered an additional $100,000.
Notably, the Navy’s guidance document is silent on who will receive the payments made on behalf of deceased victims. This raises several issues, including whether the payments will be distributed pursuant to the decedent’s will, the intestacy laws of North Carolina, the intestacy laws of the state where the decedent lived at the time of death, or some other mechanism.
Eligibility for Elective Option Settlement
Although the Elective Option is a positive first step in bringing justice to those injured by the water contamination at Camp Lejeune, very few claimants will satisfy the eligibility criteria necessary to receive an Elective Option offer from the Navy.
As set forth below, eligibility includes two main components: Qualifying Injury and Duration of Exposure.
Proving a Qualifying Injury
Claimants must prove that they have a qualifying injury in order to receive an Elective Option offer from the Navy. The Elective Option framework divides qualifying injuries into the following two tiers, based upon their classification according to the Agency for Toxic Substance and Disease Registry:
- Kidney Cancer
- Liver Cancer
- Non-Hodgkin’s Lymphoma
- Bladder Cancer
- Multiple Myeloma
- Parkinson’s Disease
- Kidney Disease/End Stage Renal Disease
- Systemic Sclerosis/Systemic Scleroderma
Claimants must be able to prove that they were diagnosed, or first treated, for the qualifying injury: 1) before August 10, 2022; 2) at least 2 years after they were first exposed to the water contaminants; and 3) not more than 35 after their last date of exposure.
To prove that they satisfy these criteria, claimants must present original, certified copies of original, or medical documentation that is signed by a medical doctor.
If originals, or certified copies of originals, are impossible to obtain, claimants must provide a written statement under oath, along with the uncertified copy, explaining why it is impossible to obtain an original or certified copy.
This is a high burden for claimants to meet since many claimants were diagnosed or first treated for their Camp Lejeune-related injuries several decades ago, making it very difficult, and in many cases impossible, to obtain the records required to establish the requirement set by the government.
The framework does make an exception for claimants receiving benefits or healthcare from the Department of Veterans Affairs (“VA”) for a qualifying disease, allowing them to rely on those benefits to establish a qualifying injury or disease.
Proving Duration of Exposure
Claimants must also prove their duration of exposure to be eligible for an Elective Option offer. Specifically, claimants must prove that they lived or worked at Camp Lejeune (or that their mothers lived or worked at Camp Lejeune while they were in utero) for not less than 30 days between August 1, 1953, and December 31, 1987.
Importantly, claimants cannot rely upon a sworn affidavit or statement in order to prove exposure for purposes of receiving an Elective Option offer. Instead, they must prove their exposure through housing or employment documentation, such as military service records, tax returns, drivers’ licenses, pay stubs, or employment contracts.
As with the medical documentation, this presents claimants with a difficult burden since it is unlikely that decades later, they can obtain a driver’s license and related documentation from the relevant time period.
Fortunately, claimants receiving VA benefits or healthcare related to a qualifying disease related to Camp Lejeune can rely on those benefits to establish up to one year of exposure.
Claimants seeking to establish that a qualifying injury or disease resulted in death must present additional documentation showing that the illness or condition “caused or contributed to causing” the decedent’s death to be eligible for an Elective Option offer.
Specifically, they must provide a “long form” death certificate that includes a medical report detailing the cause of death or a signed letter from the decedent’s treating physician.
What happens if I am eligible for an Elective Option Offer?
When an administrative claim is submitted to the Navy, the Navy will evaluate the claim under the Elective Option framework for eligibility. If an administrative claim has previously been submitted, it is not necessary to resubmit.
If the Navy extends an offer to a claimant, the claimant has 60 days to decide whether to accept or decline the offer. Accepting an Elective Option settlement payment will not affect any VA benefits the claimant receives, and the government will not assert any offset for benefits previously paid against Elective Option settlement payments.
Remarkably, the Navy has not provided a timeline for evaluating claims under the Elective Option framework. With over 90,000 administrative claims already submitted to the Navy, the evaluation process is certain to take a significant amount of time. Settlement offers are most likely not imminent.
What happens to my claim if I am not eligible for an EO Offer or Reject an EO offer?
Most claimants will likely not meet the exacting standards necessary to receive an Elective Option offer from the Navy, and some may reject EO offers.
Those claimants will proceed in the ordinary course through the administrative phase and possibly litigation as we await the development of additional settlement frameworks and further guidance from the Court.
While the Elective Option framework is a step in the right direction, it is a small step, and the road ahead for Camp Lejeune victims remains long.
Ward and Smith is dedicated to helping those affected by exposure to the water contamination at Camp Lejeune to receive justice in whatever form it may come.
© 2023 Ward and Smith, P.A. For further information regarding the issues described above, please contact Lynwood P. Evans.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.