Cover Image

PAPERBACK
$85.50



View/Hide Left Panel

Appendix E
Arguments Favoring and Opposing Presumptions1

1

VA (Veterans Administration). 2006 (unpublished). Presumption of service connection. The public policy debate. Washington, DC: VA.



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 424
Appendix E Arguments Favoring and Opposing Presumptions1 1 VA (Veterans Administration). 2006 (unpublished). Presumption of service connection. The public policy debate. Washington, DC: VA. E-1

OCR for page 424
E-2 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS FOR VETERANS Arguments Favoring Presumptions Arguments Opposing Presumptions Medical uncertainty. “Question of fact.” “The proposal (by the Bradley Commission) to throw out . . . the pre- “Last year it was determined—and I had hoped permanently—that a sumption for service connection of certain chronic diseases—tropical service-connected disability is a question of fact rather than a question diseases—was tried and it did not work. The doctors could not agree of law. In other words, each individual case should and must be consid- about whether the disease discovered 1 year of 2 years after separation ered on it merits, and there is no justification for legislative dicta which, from the service had its inception while in the service or not. The Con- contrary to fact, provide that thousands of individual cases of sickness gress became so tired of the subject that it decided they would be given which commenced 4, 5, or 6 years after the termination of the war are a period of time of the subject that it decided they would be given a pe- caused by war services.” Veto message of President Roosevelt, Independent Offices riod of time in which it would be presumed that the disease had its in- Appropriation Bill (1935) ception while in the service.” H.R. Doc. No. 291, 73d Cong., 2d Sess. (1934) O.W. Clark, National Director of Legislation, DAV Hearings Before the House Comm. on Veterans’ Affairs, 84th Cong., 2d Sess. (1956) “It is the opinion of the American Legion that until American medicine Relationship to service. has reached a point where it can determine with more than a reasonable degree of accuracy whether in fact certain types of disease did or did “The present list of ‘chronic’ diseases for which service connection is not have their inception during the course of a man’s service, the vet- granted is one deeply rooted in the history of the claims program, but eran should be entitled, in the areas of doubt . . . to the presumption that one regarding which it would be futile to contend that inclusion of a his disease or disability, within reasonable periods now or to be speci- disease in the list is substantiated by any likelihood of actual incurrence fied, was the result of his service.” in service or in any way resulting from the circumstances of service. Statement of Donald R. Wilson, past National Commander, The diseases when correctly diagnosticated, are indeed of chronic type, American Legion and their presence within a year after discharge raises a strong probabil- Id., 3654-55 (1957) ity that part of the course of the disease (not necessarily an early part, unless the service was much longer than the minimum 90 days re- quired) coincided with the ‘period of service, but the likelihood that any of their course was influenced by the facts or circumstances of service is extremely remote.” Internal Memorandum from Assistant Administrator for Claims to Assistant Administrator for Legislation October 20, 1947

OCR for page 424
APPENDIX E E-3 Arguments Favoring Presumptions Arguments Opposing Presumptions “Although the exact cause of the disease is unknown, there is nothing in For the purpose of providing hospital and nursing home the circumstances of military service in time of war which from a medi- care to veterans exposed during service to dioxin or ionizing cal and scientific standpoint would warrant a presumption of fact that a radiation for conditions not shown to result from a cause manifestation of the disease 3 years after discharge is in any way related other than exposure under P.L. 97-72. to the fact or circumstances of service. In this connection, it does not “. . . [U]ntil the scientific community [is] able to make a determination appear that the disease is any more prevalent among the veteran popula- as to the possible cause and effect relationship of the toxic herbicides tion than the nonveteran population.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs, to Chair- utilized as defoliants in the Republic of Vietnam during the Vietnam man, Senate Committee on Finance conflict, the Veterans’ Administration should do everything possible to June 29, 1951 provide the care to such veterans. When a doubt exists, the doubt should be resolved in favor of the veteran.” Administrative function. H.R. Rep. No. 79, 97th Cong., 1st Sess. 3 Developing presumptions of service connection: statutory or Inadequacy of service records and examinations. regulatory activity? “. . . [P]hysical examinations were hurried and, in many instances, in- “It is believed that extreme care should be exercised in augmenting the complete. As a consequence men were taken into the service with list of diseases to be afforded the presumption. It is the view of the Vet- physical and mental defects. The changed life and rigors of service, erans’ Administration that this can best be accomplished by continuing whether of an active fighting nature or simple employment in and the existing Veterans Regulation No. 1(a), part I, paragraph I(c), and around the military establishment, in many cases, aggravated these de- administrative authority to make the medical and adjudicatory determi- fects so that upon discharge these veterans were in need of financial nations. relief and medical treatment.” Federal Laws Relating to Veterans of Wars of the United States, S. Doc. No. 131, 72nd Congress, 1st Sess., 117 “Determination governing the selection of diseases to be included under 1932 the regulation is essentially one of an involved medical and adjudicatory nature. If a list of diseases is provided by statute it is suggested that the consideration of additions . . . would require detailed technical consid- erations by the Congress which in the opinion of the Veterans’ Admini- stration can best be handled administratively. . . . This statement is made in the light of experience under the War Risk Insurance Act, as amended, and the World War Veterans Act of 1924, as amended. . . .” Letter from General Omar Bradley, Administrator of Veterans Affairs 1947

OCR for page 424
E-4 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS FOR VETERANS Arguments Favoring Presumptions Arguments Opposing Presumptions “Some feel that Congress should abide by its longstanding tradition that Regarding Senate bill S. 1651, 98th Cong. 1st Sess. (1983) benefits should be paid only where substantive evidence is clearly available to establish that the disabling conditions existed while on ac- “VA opposed the bill, which directed VA to follow a rulemaking tive duty or are clearly related to such period of service. It has become process that involved public participation and consultation with an apparent that such evidence will never be available in the cases of vet- advisory committee. VA held that legislative action to create pre- erans covered under the provisions of the reported bill because the level sumptions could not be supported on the basis of available evi- of exposure cannot be verified.” dence, so it would be inappropriate to refer the matter for rulemak- H.R. Rep. No. 235, 100th Cong., 1st Sess. 4 ing. VA also stated that the procedural process defined in the bill 1987 would impede resolution of the issues involved and that the bill Excessive burden of proof on veteran. would create false expectations among affected veterans and their families.” “In my opinion, that provision of the law which places the burden upon Letter from Harry N. Walters, Administrator, to Alan K. Simpson, Chairman, Senate Committee on Veterans’ Affairs the disabled veteran of connecting his disease with his service has been April 10, 1984 responsible for more complaints, dissatisfaction and disappointment . . . than any other single provision. . . . Improved military procedures/records. “Consequently, I propose to offer an amendment to section 18 which “[T]he facilities and procedures of the service departments in the will shift the burden of proof in the case of two classes of disease examination of recruits prior to their induction into service and their only—tubercular and neuropsychiatric. I propose that when it is proved facilities for rendering medical care and treatment, the maintenance by an incapacitated soldier that he has either of these two types of dis- of records in individual cases and the furnishing of these records to ease he shall immediately be entitled to compensation unless the Gov- the Veterans’ Administration all represent a great advancement and ernment proves—the burden thus being shifted to the Government— improvement over comparable situations as they existed during that he has contracted the disease since the time of his discharge and it World War I.” is not traceable to service in line of duty.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs Senator Walsh, 61 Cong. Rec. 4105 February 1950 1921

OCR for page 424
APPENDIX E E-5 Arguments Favoring Presumptions Arguments Opposing Presumptions “. . . [T]he question is not entirely a medical one. It is also in part a legal Advances in medical science. one. The purpose of a presumption is to free the veteran from carrying an unconscionable burden of proof in the establishment of the service- “. . . [T]he advances in medical science since World War I have connected origin of a disease or a disability. . . . [T]he principle behind facilitated the detection and diagnosis of diseases to such an extent the granting of a presumption says to the American veteran that it that further extension of statutory presumptions of service connec- would be unfair in some cases to require him to prove medically that a tion is not believed to be indicated.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs given disease or disability did in fact have its inception during the February 1950 course of his service, or resulted directly from that service. It states in substance that, in those instances in which it would be unfair to impose Philosophy of program. such a burden upon him, he is entitled to a presumption that the disease or disability did emanate from his service. This is a rebuttable presump- “A statutory provision which requires a finding of service connec- tion. . . . It enables the Government, if medical knowledge is what the tion for a disability which cannot be shown to be due to service is Bradley Commission says that it is, to rebut the presumption. . . .” inconsistent with the theory of providing compensation for disabil- Statement of Donald R. Wilson, past National Commander, American Legion Id., 3654-55 ity or death resulting from injury or disease incurred in line of duty 1957 in active military or naval service, and results in providing compen- sation for disability or death due to causes which are not in any way Incidence of disease. connected with military or naval service.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs “It is very apparent to me that this wave of tuberculosis and of nervous Feb. 23, 1950 and mental disease that has taken such a deadly hold and grip of late upon our ex-service men must have been contracted in the service. I Elevates cases without merit. feel, therefore, that we ought not continue this requirement of endless affidavits, necessarily involving long delay, in demonstrating the fact In opposition to a proposal to extend the presumptive that their illness is of service origin. The delays resulting from this affi- period/or service connection of multiple sclerosis. davit requirement have often resulted in men dying before they ever got their compensation. . . .” “VA commented that singling out multiple sclerosis for a longer Senator Walsh, 61 Cong. Rec. 4105 presumptive period would be discriminatory and could serve as a 1921 precedent for extending the presumptive period for other chronic diseases. The amendment would place ‘cases without merit, from the standpoint of service connection’ on a par with cases involving conditions medically proven to be service connected.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs June 29, 1951

OCR for page 424
E-6 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS FOR VETERANS Arguments Favoring Presumptions Arguments Opposing Presumptions Difficult/delayed Diagnoses. Provisions are adequate without presumptions. “[I]t is frequently true that tuberculosis is an active process, and yet the “There is otherwise in the law sufficient protection for the veteran person afflicted with it does not have knowledge of the fact that he has to establish service connection of any and all diseases. Accepted tuberculosis. As a matter of fact, most tubercular patients think: that medical principles can reasonably and accurately establish the onset they have something else or think: they are not afflicted with tuberculo- of a disease and the disability process. Where there is reasonable sis.” doubt, the law provides for the doubt to be resolved in favor of the Senator Robinson, 61 Cong. Rec. 4105 veteran. . . . 1921 “With respect to chronic and tropical diseases, psychoses, and mul- “It is also recommended that this 5-year presumption should not only tiple sclerosis, the physicians surveyed were in general agreement extend to neuropsychiatric and tubercular disease, but also to other in- that service-connection should be determined in accordance with ternal [dis]orders which might be placed in like category, such as heart sound medical principles, and not by fiat. As to tuberculosis in par- trouble, cancer, diabetes, sleeping sickness, etc. Some of these are even ticular, modern methods of diagnosis have made rapid strides since very difficult to ascertain or even see by means of X rays. It is hard to enactment of the original presumption for this disease 35 years ago. determine just when they did commence. Take the instance of a cancer, The presumptive period of 4 years is not in accord with present-day it is the general presumption that it must be existent in a small state at accepted medical principles.” least a year before it is found, therefore, it is urged that these diseases President’s Commission on Veterans’ Pensions (the Bradley be included in the 5-year presumption.” Commission), Veterans’ Benefits in the United States Edwin S. Bettelheim, VFW, in letter to Special Committee of Senate 1957 Investigations With regard to additional presumptions specific to former POWs. November 5, 1923 “The VA position was that the conditions under consideration (pe- According to a Senate report, only medical specialists, primarily ripheral neuropathy; irritable bowel syndrome; and duodenal and neurologists, were likely to diagnose the disease (MS) in its early peptic ulcers) would ordinarily manifest themselves and require stages. The average person “would not be inclined to consult a neurolo- treatment upon repatriation or shortly thereafter. Under these cir- gist for the original symptoms.” VA opposed extension of the presump- cumstances the veteran would be entitled to direct rather than pre- tive period on the grounds that it lacked a sound medical basis. sumptive service connection. Moreover, VA pointed out that the S. Rep. No. 660, 86 Cong., 1st Sess. conditions at issue did not lend themselves to presumption. Irritable 1959 bowel syndrome, for example, was described as a functional disor- der of unknown etiology and pathogenesis.” From Statement of R. J. Vogel, Chief Benefits Director VA Compensation and Other Service-Connected Benefits: Hearing Before the Senate Committee on Veterans’ Affairs 100th Congress, 1st Sess. 1987

OCR for page 424
APPENDIX E E-7 Arguments Favoring Presumptions Arguments Opposing Presumptions “[P]resumptions are based on the need to ensure that diseases and dis- Qualifying criteria excessively liberal. abilities incurred in or aggravated during service are, in fact, determined to be service connected. This need arises most clearly in the cases of “The bill makes no distinction as to the length, or type of service or diseases that have a latency period of varying length causing early as to the various diseases. Certain diseases, particularly cardiovas- manifestations to be easily overlooked or misdiagnosed or diseases that cular-renal disease, endocrinopathies, organic diseases of the central are otherwise difficult to diagnose. nervous system, and the psychoses, reflect a multitude of etiologies, some of which, when analyzed are not even remotely affected by “SLE is such a disease. . . . Although the disease may start acutely, the any stress or strain of service. Under the terms of this bill, if enacted course is usually chronic and irregular with periods of activity alternat- into law, a veteran with only 1 day active service in World War II ing with periods of remission, thereby making diagnosis very difficult and whose disease was first detected 5 years less 1 day from termi- and the manifestations quite diverse . . . SLE is instigated by a combina- nation of his active service . . . might very well obtain presumptive, tion of genetic predisposition and environmental factors. Current data service connection. . . .” stress the importance of various environmental factors as accelerating or Letter from Frank T. Hines, Administrator to causal elements to a greater degree than previously had been assumed. John E. Rankin, Chairman, House Committee on Veterans’ Accordingly, factors present during the veteran’s service may trigger Legislation onset of the disease and yet not appear on the veteran’s service Aug. 9, 1945 record. . . .” S. Rep. No. 215, 100th Cong., 1st Sess. 73 1987 Social benefits. Regarding extension of the presumptive period for active pulmonary tuberculosis from one year to three years after separation provided in Act of June 23, 1950. Extension of the presumption was “fully justified, in view of the nature of this particular chronic disease. . . . The entitlement to compensation and preference in hospitalization generally resulting will lessen the need of veterans to engage in labor injurious to their health, encourage them to take proper measures for recovery, and thus result in improving the health of the Nation generally.” The report also noted that the World War Veterans’ Act of 1924 provided a longer presumptive period for active tuberculosis in World I veterans. S. Rep. No. 1745, 81st Congress, 2d Sess. 1950

OCR for page 424
E-8 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS FOR VETERANS Arguments Favoring Presumptions The Act of October 30, 1951, provided a presumption of service connection for active psychosis developing within two years of separation. This presumption was enacted for treatment purposes only. Disability compensation would not be paid unless the condition were found di- rectly service connected or arose within the one-year pre- sumptive period provided for chronic diseases generally. At the time there were an estimated 9,000 World War II veterans awaiting hospitalization for nonservice- connected psychosis. The Senate Committee on Finance noted that psychosis “is not only an individual problem but involves broad social aspects as well.” In view of this and other considerations, the Committee thought it important to provide priority care at VA facilities. S. Rep. No. 749, 82d Cong., 2d Sess. 1952 Enforce Congress’s view. “[T]he reason we passed [the presumption statute] was because Con- gress did not agree with many of the medical findings [of VA doctors]. . . . Many doctors have [refused to service connect disabilities] . . . where nearly everyone would agree, [the veteran] should be given the benefit of the doubt. . . . The only way we can force proper administration is by setting up a presumptive right by law. . . . Otherwise they could dis- agree with us.” Olin E. Teague, Chairman, House Committee on Veterans’ Affairs Hearings, 85th Cong., 1st Sess. 942 1957

OCR for page 424
APPENDIX E E-9 Arguments Favoring Presumptions rences Association with risk factors. Since the amount of exposure of the “radiation-exposed veteran”, as defined in the reported bill, is less than certain, the Committee has de- liberately ignored the issue of level of exposure and has concentrated instead on the likelihood of relationship of disease entities to radiation exposure. The proposed legislation (later enacted as P.L. 100-321) in- cludes those malignancies considered most likely to be related to ioniz- ing radiation exposure. H.R. Rep. No. 235, 100th Cong., 1st Sess. 4 1987 Promote health. Regarding extension of the presumptive period for active pulmonary tuberculosis from one year to three years after separation provided in Act of June 23,1950. Extension of the presumption was “fully justified, in view of the nature of this particular chronic disease. . . . The entitlement to compensation and preference in hospitalization generally resulting will lessen the need of veterans to engage in labor injurious to their health, encourage them to take proper measures for recovery, and thus result in improving the health of the Nation generally.” The report also noted that the World War Veterans’ Act of 1924 provided a longer presumptive period for active tuberculosis in World I veterans. Senate Report No. 1745, 81st Congress, Second Session 1950

OCR for page 424