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Arguments Favoring Presumptions

Arguments Opposing Presumptions

Medical uncertainty.

“Question of fact.”

“The proposal (by the Bradley Commission) to throw out … the presumption for service connection of certain chronic diseases—tropical diseases—was tried and it did not work. The doctors could not agree about whether the disease discovered 1 year of 2 years after separation from the service had its inception while in the service or not. The Congress became so tired of the subject that it decided they would be given a period of time of the subject that it decided they would be given a period of time in which it would be presumed that the disease had its inception while in the service.”

“Last year it was determined—and I had hoped permanently—that a service-connected disability is a question of fact rather than a question of law. In other words, each individual case should and must be considered on it merits, and there is no justification for legislative dicta which, contrary to fact, provide that thousands of individual cases of sickness which commenced 4, 5, or 6 years after the termination of the war are caused by war services.”

O. W. Clark, National Director of Legislation, DAV Hearings Before the House Comm. on Veterans’ Affairs, 84th Cong., 2d Sess. (1956)

Veto message of President Roosevelt, Independent Offices Appropriation Bill (1935) H. R. Doc. No. 291, 73d Cong., 2d Sess. (1934)

“It is the opinion of the American Legion that until American medicine 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 not have their inception during the course of a man’s service, the veteran should be entitled, in the areas of doubt … to the presumption that his disease or disability, within reasonable periods now or to be specified, was the result of his service.”

Relationship to service.

“The present list of ‘chronic’ diseases for which service connection is granted is one deeply rooted in the history of the claims program, but one regarding which it would be futile to contend that inclusion of a disease in the list is substantiated by any likelihood of actual incurrence in service or in any way resulting from the circumstances of service. The diseases when correctly diagnosticated, are indeed of chronic type, and their presence within a year after discharge raises a strong probability that part of the course of the disease (not necessarily an early part, unless the service was much longer than the minimum 90 days required) 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.”

Statement of Donald R. Wilson, past National Commander, American Legion Id., 3654-55 (1957)

 

Internal Memorandum from Assistant Administrator for Claims to Assistant Administrator for Legislation October 20, 1947



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