Why Veterans should Accept the 3M Earplug Settlement

By Edward Timperlake

3M has agreed to pay to resolve over 300,000 lawsuits claiming it sold the U.S. military defective combat earplugs (3M).

After years of legal wrangling, veterans who suffered hearing loss finally have a settlement in a class action lawsuit against 3M, the parent company of the firm that provided hearing protection for some of our troops between 1999 and 2015. This settlement is significant; a whopping $6.01 billion, making it one of the largest class action settlements in American history.

But there’s a rub that could wind up hurting nearly a quarter million veterans, and in several different ways. The terms of the settlement stipulate that 98% of the veterans in the class must agree to the deal, and they need to do so within six months. As the clock ticks, certain trial lawyers are agitating against accepting the terms of this agreement. But this strategy could backfire on veterans.

With about 240,000 veterans in the class, each could expect to receive a one-time payment on the order of $20,000 to $25,000. That’s not nothing. But there is another aspect to accepting the settlement, one that lasts a lifetime. In agreeing to this settlement, affected veterans would likely be eligible to receive additional disability compensation from the U.S. Department of Veterans Affairs.

Applying for and receiving disability compensation is a complex, often protracted process that pays veterans an earned benefit for wounds or other injuries sustained while in uniform. But with a legal settlement for hearing loss in hand, veterans could approach VA with what amounts to a fully developed claim for a service connected disability.

Every disability case has different circumstances, and a veteran’s claim can take years, sometimes a decade or more, to resolve. But a fully developed claim can be resolved in a matter of months, and it’s hard for VA to argue against a veteran’s service connected claim for hearing loss when it’s accompanied by medical and legal recognition of that condition vis-a-vis the 3M settlement. This can result in a substantial additional benefit to veterans and their families.

Many veterans in the 3M lawsuit class are suffering from tinnitus, the medical term for ringing in the ears. It’s not a trifling affliction. VA’s Schedule for Rating Disabilities recognizes a disability rating of 10% for a veteran with a service connected recurrent tinnitus diagnosis. That rating alone earns a veteran nearly $2,000 per year in disability compensation; more if the veteran is married, has minor children, or a dependent parent.

This compensation, when approved by VA, is retroactive to the date the claim was filed, and is paid as tax-free income for the rest of the veteran’s life. Veterans with more acute hearing loss could potentially receive an even greater disability rating, depending on the severity of their condition.

But if veterans do not accept the 3M settlement, this already prolonged litigation could drag on for many more years. This not only delays a fair settlement for affected veterans through the class action, it also complicates and delays the veteran’s ability to file a fully developed VA claim for their hearing loss.

I watched this horrible dynamic play out in real time during the controversy surrounding Agent Orange, the defoliant commonly used in Southeast Asia during the Vietnam War. Many veterans suffered tremendous disabilities related to their exposure to Agent Orange, for many years, but the legal fight lingered for decades and many eligible veterans died before the controversy was ultimately settled. The dead received nothing.

Veterans with hearing loss are facing a parallel situation today, but it’s trial lawyers who are urging veterans to hold out for more money. Maybe they’ll get it; maybe they won’t. I don’t have a dog in this fight but one thing is certain; the lawyers will get their share, regardless of the outcome.

In the meantime, veterans who decide against accepting the settlement will deny themselves compensation — both from the lawsuit itself and possibly their earned VA compensation for exposure to high decibel noise — for the hearing loss they suffered. This is not just a bad idea; it’s wrong and does a disservice to those who wore the uniform.

It’s troubling to realize that a very small percentage of plaintiffs in this class action could upset the apple cart for many thousands of their fellow veterans who have waited for years to see a resolution to this legal battle. As a Marine F-4 pilot in Southeast Asia during the Vietnam War, I quickly learned that when you’ve won, it’s smart to declare victory and move on. That’s what veterans in the 3M case should do, and accept this historic settlement.

Ed Timperlake is a former assistant secretary for the U.S. Department of Veterans Affairs and a retired Marine Corps fighter pilot.

This article was first published in Stars and Stripes on September 19, 2023 and is republished by permission of the author.