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Veterans’ Toxic Exposures: How Lawyers, Law Students Can Help

Oct. 21, 2021, 8:00 AM

Veterans and active military members face a surprising number of toxic exposures, and thus are at high risk for resulting illnesses. Military occupations are unique in that the risk of exposure to dangerous substances is prevalent. Common exposures include asbestos; toxic substances in the air, water, and soil; nuclear radiation, and chemical weapons.

Receiving disability benefits for toxic exposures from the Department of Veterans Affairs can be difficult and complex. Exposure to one of these toxic substances does not automatically qualify a veteran or service member to receive immediately receive VA disability benefits. Some veterans that apply for disability due to toxic exposures are denied initially.

Following is a guide to helping veterans qualify for benefits stemming from toxic exposures.

Show a Causal Link

To qualify for disability benefits through the VA, the client must have gotten sick or injured while in the military, had an illness or injury before joining the military and their service made that illness or injury worse, or the client must have a disability related to their active-duty service that did not appear until after their service ended.

Showing that the disabled veteran has a causal link between their exposure and diagnosis, or injury is key to receiving VA disability benefits. To establish a direct connection, veterans must have evidence of deployment to a base that had a documented chemical problem, or the veteran must have been based in an area that has been placed on the EPA’s Superfund Site list.

Understand Presumptive Benefits

In some circumstances, the VA applies a presumption to a veteran’s case. Exposure to the following toxic substances can get your client presumptive benefits: Agent Orange, asbestos, mustard gas, contaminated drinking water; Gulf War illnesses, radiation exposure, and other specific environmental hazards listed on the VA website.

Presumptive benefits mean that by using military records to verify a veteran’s time and place of service, they can be presumed to have been exposed to a dangerous toxicant without having to prove a causal link between their illness and a military exposure. This can expedite medical and financial help to disabled veterans because they do not have to spend time proving their causal link.

Some of the conditions veterans can receive presumptive benefits for are chronic illnesses that appear within one year of discharge, illnesses caused by toxic exposures, or illnesses caused by time spent as a prisoner of war. Congress is currently working on expanding presumptive benefits for veterans. It would be advantageous to keep up with his developing topic to see if your clients eventually qualify for presumptive benefits from the VA.

Veterans can currently join six different health registries if they have been exposed to environmental hazards during their service. The health registries are for the Gulf War, Agent Orange, Depleted Uranium, Airborne Hazards and Burn Pits; Ionizing Radiation, and Embedded Toxic Fragments. These registries help to alert exposed veterans to potential health problems following their exposures.

Veterans must still go through the VA claims process to verify their exposure with their military records, even if they were a part of these registries. However, being a part of the registry can only help a client’s disability claim because the registry helps the VA track and understand toxic exposures and their resulting health problems.

Advise Clients to Maintain Important Documents

Although some professions assume hazards, working in a reasonably safe environment is still a legal right for veterans. Veterans may deserve compensation if their employer didn’t take precautions to protect them from toxic exposure, or if manufacturers failed to warn of the risks of a chemical. These issues also help the VA to reach a positive outcome in a disability claim.

Advising clients with high-risk exposures in the military to take careful note of their experiences and following symptoms and seek medical attention quickly is important. Early diagnoses can increase the chances for successful treatment and aid in their disability claim.

Doctors, coworkers, and others can write affidavits or provide testimony at a hearing for VA benefits. Keeping records of all relevant information and medical records could be a huge help to getting your client benefits.

Aim for a Disability Rating of 100%

Once a veteran is granted VA disability benefits, they are compensated according to their disability rating assigned by the VA, ranging from 10% to 100%. If their disability or injury prevents them from earning a living wage, a veteran is entitled to a total disability rating based on unemployability. This is true regardless of their disability rating.

Multiple disabilities can be combined to get a higher rating, make sure you ask your client about every exposure and/or symptom that they are experiencing. Disability ratings and compensation received are increased if the client has dependents, a disability that affects both arms or both legs. and if the disability includes the loss of use of any part of the body.

Some winning arguments for securing adequate compensation revolve around showing the VA that your client has difficulty sustaining effort and concentration due to their illness or injury. Mental limitations along with a physical disability can get your client a higher disability rating.

Appeal Negative Decisions

This could be a new affidavit from your client’s doctors or a military member or veteran that served alongside them and has information about their exposure. The VA has a duty to assist you in getting new records to support your client’s initial claim and their supplemental claims. It will not apply to further appeals.

Ultimately, submitting an appeal in a timely manner and collecting the best evidence and documentation for your client is key to a successful appeal.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Chandler Duncan is a lawyer with the Environmental Litigation Group P.C. She has a strong scientific and public health issues background and assists on cases involving water contamination and toxic exposure.