TERA Memo in VA Disability Claims: What Firms Need to Know

What a TERA Memo Is and Why It Appears in the Claim File

A TERA memo is a VA-generated document that records whether a veteran participated in a toxic exposure risk activity, and its presence in the claim record directly controls whether VA must order a medical examination and nexus opinion under federal statute.

"Toxic exposure risk activity" refers to a qualifying activity during military service that may have exposed a veteran to a toxic substance covered by the PACT Act. 38 U.S.C. § 1168^[1] The PACT Act created a statutory examination requirement that attaches once VA concedes participation. VA has proposed to codify the definition of "toxic exposure risk activity" in a new paragraph at 38 CFR 3.1(bb) and to list all TERA examination exceptions at 38 CFR 3.159(c)(4)(iv). 89 FR 79815^[2]

The memo enters the claim record during adjudication. Claims processors review available service records, deployment history, MOS, and other source material to determine whether TERA participation should be conceded. When it is, a memo documenting that finding becomes part of the file. It can also be issued mid-appeal when PACT Act provisions become applicable to a pending claim.

For case workup, the TERA memo is a trigger document. Its presence or absence, and whether it addresses the specific exposure contentions at issue, determines whether VA has met its duty-to-assist obligations before a rating decision or Board disposition.

What a TERA Memo Triggers: The Duty to Examine Under 38 U.S.C. 1168

Once a TERA memo confirms participation and the record shows evidence of a current disability but service connection has not been established, VA is required by statute to provide a medical examination and obtain a nexus opinion. 38 U.S.C. § 1168^[1] This is not a discretionary step. The duty attaches by operation of the statute when those two conditions are met.

A TERA memo issued during the pendency of an appeal has the same effect. In one Board decision, VA issued a TERA memo mid-appeal based on multiple deployments to Kuwait and Iraq. Because evidence of disability and TERA participation existed but service connection had not been established, the Board remanded for a VA examination under 38 U.S.C. 1168. 38 U.S.C. § 1168^[3] That decision is non-precedential, but it shows how a TERA memo arriving after initial denial still moves the duty-to-examine requirement.

What the C&P Examiner Must Address

The scope of the required examination is not limited to a single deployment or a single substance. In at least one Board decision involving a PACT Act TERA memo for Southwest Asia service, the examiner was required to consider the total potential exposure across all applicable military deployments and address the synergistic, combined effect of all toxic exposure risk activities. 38 U.S.C. § 1168^[4] This is an illustrative outcome, not a binding standard, but it signals a scope risk worth flagging in attorney review.

For case workup, the examiner's report is a quality checkpoint. Staff should flag whether the C&P report addresses all exposure contentions raised in the claim and whether it addresses combined exposure. If the report evaluates only one deployment while the TERA memo covers multiple, that gap should be in the attorney review queue before the firm accepts a rating decision.

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TERA Memos as New and Material Evidence

A TERA memo issued after a prior final denial can qualify as new and material evidence. In at least one Board decision, the Board found that a January 2023 TERA memo was new and material because it was not part of the record at the time of the prior final denial and confirmed TERA participation, which in turn triggered VA's duty under 38 U.S.C. 1168. 38 U.S.C. § 1168^[5] That decision is non-precedential. An accredited attorney should evaluate whether the specific facts of a prior-denial case support a Supplemental Claim or Board appeal on this theory.

The practical case-record implication: when a file has a prior final denial for a condition with a plausible toxic exposure connection, the firm should confirm whether a TERA memo now exists that was not part of the prior record. If the memo post-dates the denial and addresses the claimed exposure, it is a potential reopening document. Under the AMA framework, a Supplemental Claim requires new and relevant evidence. 38 CFR § 3.2501^[6]

Whether a post-denial TERA memo meets that threshold for a specific denied condition is a legal judgment call for the attorney, not a staff determination.

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Incomplete and Conflicting TERA Memos as Duty-to-Assist Errors

A TERA memo that does not address all specific exposure contentions raised by the veteran, or that conflicts with another TERA memo in the record without resolution, can constitute a pre-decisional duty-to-assist error.

In at least one Board decision, the Board found that conflicting TERA memos left the record inadequate to assess the causal relationship between the veteran's claimed exposures and diagnosed disabilities. The Board remanded for an addendum TERA memo. 38 U.S.C. § 1168^[7] Separately, in another non-precedential decision, the Board found that an incomplete TERA memo that failed to address specific reported exposure contentions was itself a duty-to-assist error. 38 U.S.C. § 1168^[8]

These are individual Board decisions and are not binding. But they reflect a coherent theory: the TERA memo must be complete enough to actually support the required nexus analysis. A memo that ignores claimed exposures or conflicts with another memo in the file does not satisfy that standard.

For firms handling Board appeals, this means the TERA memo itself is a reviewable document, not just a triggering event. Staff should flag any memos that appear to leave exposures unaddressed, and the attorney should assess whether the incomplete memo supports a remand argument or an argument that VA has not yet met its duty to assist.

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Reviewing the Case Record for TERA Signals

Before attorney review, staff can work through the case record to surface TERA-relevant material. The goal is not to make a legal determination about TERA participation but to identify what is present, what is missing, and what needs a judgment call.

Items to flag in the record:

• Deployment orders or personnel records showing service in covered locations (Southwest Asia, Iraq, Afghanistan, and others defined under the PACT Act)
• MOS documentation that may connect to toxic exposure risk activities
• VHA records including exposure history questionnaires, AHCAS screenings, or Airborne Hazards and Open Burn Pit Registry enrollment
• Any prior VA rating decisions that conceded exposure or acknowledged toxic exposure in the reasons-and-bases discussion
• Existing TERA memos in the C-file: how many, what exposures they cover, and whether they address all contentions
• C&P exam reports: whether they reference the TERA memo, address all deployments, and offer a combined-effect opinion

The absence of a TERA memo in the file is also a flag. If the claimed condition has a plausible connection to covered service and no TERA memo exists, staff should note that gap. The attorney can assess whether a TERA memo should have been issued and whether the absence constitutes a duty-to-assist issue.

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Attorney Review: Strategy and Judgment Calls TERA Issues Require

Staff review surfaces TERA-related records and gaps. The strategic decisions belong to the attorney.

Specific judgment calls that require attorney review:

TERA participation arguments. Whether the record is sufficient to argue implicit TERA participation, which exposures to assert, and how to frame the argument for a Supplemental Claim or Board brief are legal strategy decisions. Staff can identify the source materials. The attorney decides which exposures to pursue and how to present them.

Reopening prior denials. Whether a post-denial TERA memo qualifies as new and relevant evidence for a Supplemental Claim, and whether the record otherwise supports reopening, is a legal assessment. The standard under AMA requires new and relevant evidence. 38 CFR § 3.2501^[6] Whether the TERA memo meets that bar for a specific denied condition requires attorney review.

Duty-to-assist errors. Whether a conflicting or incomplete TERA memo rises to the level of a remandable duty-to-assist error, and whether to raise it on appeal, is a legal judgment. The available BVA decisions are non-precedential and fact-specific. The attorney needs to evaluate the actual memo, the claimed exposures, and the current record.

C&P exam adequacy. Whether a given examiner's report adequately addresses all TERA exposures and their combined effect, or whether the report is inadequate and should be challenged, is a legal assessment. Staff can flag when the report omits a deployment or does not address multiple exposures. The attorney decides whether to challenge the exam or order a private opinion.

Related guides

Burn Pit Presumptive Conditions: What Firms Need in the Case RecordPACT Act burn pit presumptives turn on qualifying service, covered locations, and a matching diagnosis. Here is what firms need to surface before attorney review.Camp Lejeune Service Evidence in VA ClaimsHow firms identify, source, and structure Camp Lejeune service evidence to establish the 30-day threshold and attach the presumption under 38 CFR § 3.307.PACT Act Exposure Screening at Intake: What Firms Need to CaptureHow VA disability firms structure intake to surface burn pit locations, qualifying service periods, MOS, diagnoses, and presumptive flags under the PACT Act.