A denied VA toxic exposure claim is not necessarily the end of the process. Even when a veteran’s condition is not covered by a toxic exposure presumption, service connection may still be established by evidence showing a current disability, an in-service exposure or event, and a medical link between the two.
The PACT Act expanded VA benefits for veterans exposed to burn pits, Agent Orange, and other toxic substances. However, not every condition associated with military toxic exposure is presumptive. A veteran may need to establish direct service connection.
Can You Get VA Disability for a Non-Presumptive Toxic Exposure Condition?
Yes. A condition does not necessarily have to appear on a VA presumptive list for a veteran to pursue service connection.
VA explains that veterans whose condition or service location does not fall within its presumptive toxic exposure categories may still seek disability compensation, although additional evidence may be necessary.
For a direct service-connected disability claim, VA generally considers:
- A current disability
- An in-service event, injury, disease, or exposure
- A link, or nexus, between the current disability and military service
For a non-presumptive claim, the nexus can be particularly important. The issue is not simply whether the veteran was exposed to a toxic substance, but whether the evidence establishes that the exposure caused or contributed to the current disability.
What Evidence Is Needed for a Non-Presumptive Toxic Exposure Claim?
Potentially relevant evidence includes medical records, military and service treatment records, deployment history, occupational duties, exposure documentation, relevant medical literature, treatment history, medical opinions, and statements describing exposure and symptoms.
The evidence should connect the exposure, current condition, and medical relationship between them.
Why Can a Medical Nexus Matter?
For a non-presumptive toxic exposure claim, a nexus opinion may be particularly important because the veteran cannot rely on a presumption of service connection.
A nexus letter or independent medical opinion (IMO) may be useful when it addresses the veteran’s diagnosis, documented exposure history, relevant medical records, and the medical reasoning connecting the exposure to the claimed condition. The opinion should consider the veteran’s complete medical and exposure history and explain its conclusion.
What Does 38 U.S.C. § 1168 Mean for Toxic Exposure Claims?
Under 38 U.S.C. § 1168, when a veteran submits evidence of a disability and participation in a toxic exposure risk activity (TERA), and the evidence is insufficient to establish service connection, VA generally must provide a medical examination and obtain a medical opinion addressing the relationship between the disability and the toxic exposure risk activity, subject to statutory exceptions.
The examiner must consider the veteran’s total potential exposure and the synergistic, combined effect of toxic exposure risk activities.
What Should You Do After a VA Toxic Exposure Claim Is Denied?
A VA denial should be examined carefully to determine why the claim was denied. The decision may identify an issue involving:
- The existence of a current disability
- Evidence of an in-service exposure
- The relationship between the exposure and current condition
- The severity of the disability
- Another element of service connection
Identifying the missing element can help determine what evidence may be needed next.
Eric Gang, founder of Gang & Associates, represents veterans in complex VA disability claims involving toxic exposure and other service-connected conditions.
Gang notes that veterans should look closely at the actual reason for a denial rather than assuming that the absence of a presumptive condition means the claim cannot succeed.
“The absence of a presumption does not necessarily end the analysis,” Gang says. “The question is whether the evidence can establish the required connection between the veteran’s service and the condition being claimed.”
What Are the VA Decision Review Options?
VA provides several decision-review options:
- Supplemental Claim: Submit new and relevant evidence.
- Higher-Level Review: Ask a more senior VA reviewer to review the existing evidence for an error.
- Board Appeal: Ask the Board of Veterans’ Appeals to review the case.
VA explains that the appropriate review option depends on the decision and evidence available.
A Supplemental Claim may be relevant when new and relevant evidence was not previously considered. If a denial identifies a lack of nexus evidence, a new medical opinion may potentially address that gap.
How Do You Build a Stronger Non-Presumptive Toxic Exposure Claim?
A non-presumptive toxic exposure claim generally depends on evidence addressing each element of service connection.
Service records + exposure evidence + medical diagnosis + medical nexus evidence = a more complete service-connection record.
A medical opinion should address the veteran’s individual circumstances rather than simply stating that a particular toxic substance can cause a particular disease.
Relevant questions include what the veteran was exposed to, when and where the exposure occurred, its level and duration, the diagnosed condition, the veteran’s medical history, potential alternative causes, and the medical evidence supporting or weighing against a connection.
These questions can be particularly important in cases involving multiple deployments or toxic exposure risk activities.
Frequently Asked Questions About VA Toxic Exposure Claims
Can I get VA disability for a condition that is not on the PACT Act presumptive list?
Yes. A veteran may pursue service connection with evidence of a current disability, an in-service exposure or event, and a connection between the disability and service.
What is the difference between presumptive and direct service connection?
Presumptive service connection allows VA to presume a connection between certain qualifying service circumstances and specified conditions. Direct service connection generally requires evidence establishing that connection.
What evidence can prove toxic exposure for a VA claim?
Potential evidence includes military and deployment records, occupational information, service treatment records, exposure documentation, and credible statements describing the exposure.
What is a nexus letter?
A nexus letter is a medical opinion addressing whether a veteran’s current disability is connected to military service. For a non-presumptive claim, it may help address the causal connection that cannot be established through a presumption.
Can VA deny a claim if exposure is documented?
Yes. Documenting exposure does not necessarily establish that it caused the current condition. Evidence may also need to establish the current disability and medical connection to service.
What should I do if VA denied my claim?
Review the decision to identify the reason for denial and what evidence is missing. Options may include a Supplemental Claim, Higher-Level Review, or Board Appeal.
The Key to a Non-Presumptive Toxic Exposure Claim
The PACT Act created important presumptions for qualifying veterans, but a condition does not have to be presumptive for a veteran to pursue service connection based on toxic exposure.
When a toxic exposure claim is denied, the evidence must address the elements necessary to connect the current disability to military service. For non-presumptive conditions, exposure documentation, medical evidence, and a well-reasoned nexus opinion may be particularly important. Understanding why VA denied the claim can also help identify what evidence may be needed and which decision-review option may apply.
