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4
Legislative Background on Presumptions

In previous chapters, the Committee has described the historical background for presumptions and the current approach as it has evolved to include Congress, the Department of Veterans Affairs (VA), the National Academies (Institute of Medicine [IOM] and National Research Council [NRC]) and stakeholders. This chapter addresses the legislative background, in greater depth, for three more recent issues that have been a focus for the National Academies (NRC and IOM) and VA: radiation exposure, Agent Orange, and the Gulf War. The same issues are also a focus for case studies that are summarized in the next chapter and provided in their entirety in Appendix I. The legislative materials covered in this chapter provide a picture of the concerns of veteran stakeholders and congressional responses and intent, as set out in specific legislation.

The complexities and perplexities that encumber the presumptive disability decision-making process are evident if we look at the evolution of presumptions governing radiation exposures, the Gulf War, and Agent Orange. We see a variety of approaches, not always consistent, a diverse group of participants—Congress, VA, the National Academies (NRC and IOM), stakeholders, and the courts—and somewhat opaque standards for making decisions. It should be noted that VA proposes to reorganize and rewrite all of its compensation and pension regulations (see 71 Fed. Reg. 16464 [March 31, 2006]) (VA, 2006b). Notices of Proposed Rulemaking have been published and will continue to be published. The discussion that follows does not take these new rules into account.



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4 Legislative Background on Presumptions In previous chapters, the Committee has described the historical back- ground for presumptions and the current approach as it has evolved to include Congress, the Department of Veterans Affairs (VA), the National Academies (Institute of Medicine [IOM] and National Research Council [NRC]) and stakeholders. This chapter addresses the legislative background, in greater depth, for three more recent issues that have been a focus for the National Academies (NRC and IOM) and VA: radiation exposure, Agent Orange, and the Gulf War. The same issues are also a focus for case studies that are summarized in the next chapter and provided in their entirety in Appendix I. The legislative materials covered in this chapter provide a pic- ture of the concerns of veteran stakeholders and congressional responses and intent, as set out in specific legislation. The complexities and perplexities that encumber the presumptive dis- ability decision-making process are evident if we look at the evolution of presumptions governing radiation exposures, the Gulf War, and Agent Orange. We see a variety of approaches, not always consistent, a diverse group of participants—Congress, VA, the National Academies (NRC and IOM), stakeholders, and the courts—and somewhat opaque standards for making decisions. It should be noted that VA proposes to reorganize and rewrite all of its compensation and pension regulations (see 71 Fed. Reg. 16464 [March 31, 2006]) (VA, 2006b). Notices of Proposed Rulemaking have been published and will continue to be published. The discussion that follows does not take these new rules into account. 0

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1 LEGISLATIVE BACKGROUND ON PRESUMPTIONS PRESUMPTIONS FOR VETERANS, IN GENERAL VA clearly assumes that all congressional presumptions governing vet- erans’ benefits are type 1 presumptions (see Chapter 2 for an explanation of the difference between type 1 and type 2 presumptions) (Zeglin, 2006). Consequently, the veteran is relieved both of producing sufficient evidence of an exposure that is service connected and of persuading VA that his or her adverse health effect was incurred through a service-connected exposure (Basic Entitlement. 2006. 38 U.S.C. § 1110 provides for disability payments for illnesses that were “aggravated” or “incurred” during service). Once a medical condition is service connected through presumptions, and the vet- eran can document military service consistent with the given exposure or risk, the veteran only has to show the basic fact that he or she suffers from the condition in order to receive the specified disability payment. The discussion below will focus on the link between disease and service—the question to which scientific reviews are directed. Equally important to the compensation decision, however, is the creation of a presumption that relieves the veteran of having to provide evidence of a military exposure of sufficient magnitude to account for his or her illness or injury (Brown, 2005). See, for instance, 38 U.S.C.A. § 1116(f) (a veteran who served in Vietnam during a specified period is presumed to have been exposed to herbicide containing dioxin); 38 U.S.C. § 1116(f) (Presumptions of Service Connection for Diseases Associated with Exposure to Certain Herbicide Agents; Presumptions of Exposure for Veterans Who Served in the Republic of Vietnam. 2006. 38 U.S.C. § 1116(f); and Haas v. Nicholson (2006). United States Court of Appeals for Veterans Claims, Case Number 04-0491 § 1116[f]) is ambiguous as to whether it required veterans to have set foot in Vietnam, and the court extended the presumption to veterans serving in the waters near the shore of Vietnam. Often, as is evident in the case studies, exposure data are lacking, making it impossible to conduct epidemiologic studies of the veterans. In such cases, the medical evidence for the presumption that links the disease to the exposure will relate to a surrogate group, such as workers exposed to the substances at issue. For a discussion of this problem in connection with the Vietnam War presump- tions, see Stellman and Stellman (2005). In theory, all presumptions, including those that govern a veteran’s ability to show exposure, prove health outcomes, establish that a disability did not predate service (Wagner v. Principi. 2004. United States Court of Appeals for the Federal Circuit, Case Number 02-7347), or establish some other element of a claim, are rebuttable as provided in 38 U.S.C.S. § 1113 (Presumptions Rebuttable. 2005. 38 U.S.C. § 1113). VA assumes that an individual was medically sound when entering military service. However, that presumption of soundness is sometimes challenged if evidence shows

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 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS a preexisting condition. See examples in the Veterans Benefits Manual (VA, 2005). Federal circuit court has held that evidence rebutting a presumption must only meet a “preponderance of the evidence” standard unless Con- gress specifies a higher standard (Thomas v. Nicholson, 2005. United States Court of Appeals for the Federal Circuit, Case Number 05-7019). In practice, presumptions establishing that a veteran’s adverse health effects are service connected are rarely rebutted. David Barrans of the VA Office of the General Counsel acknowledged in response to a question after his oral presentation at the July 2005 Veterans’ Disability Benefits Com- mission meeting that VA claims adjusters (veterans service representatives) generally do not seek to develop information to rebut presumptions. Accord- ingly, one does not see many claims rejected because of evidence that the disease predated the veteran’s military service or because the presumptive condition is found to stem from an intercurrent cause. VA does have provi- sions for developing evidence of “willful misconduct” if it may affect these claims (Basic Entitlement. 2006. 38 U.S.C. § 1110; Basic Entitlement. 2007. 38 U.S.C. § 1131), but the limited provisions are rarely relevant to presump- tive claims (see Presumptions Rebuttable. 2005. 38 U.S.C. § 1113; Line of Duty and Misconduct. 2005. 38 C.F.R. § 3.301). Accordingly, in practice the presumptions governing service connection are not rebutted and operate more as rules of law than procedural devices; they mandate finding a nexus between the veteran’s service and a specified disability or disease. If Congress wished, it could specify evidence that may or may not be used to rebut a presumption. It has done so in other statutes, unrelated to veterans’ benefits that rely on presumptions to establish benefits under a compensation scheme. For instance, the Back Lung Benefits Act (Congres- sional Findings and Declaration of purpose. 2007. 30 U.S.C. § 901, et seq.) contains a number of rebuttable type 2 presumptions that operate to prove that a miner was disabled due to pneumoconiosis and that this disability arose out of his employment in coal mines. The regulation accompanying this legislation specifically provides that certain items of evidence shall not suffice to rebut the presumption of disability (Presumption of Entitlement Applicable to Certain Death Claims. 2003. 20 C.F.R. § 718.306[d]). The courts have taken this to mean that a combination of items can be used to rebut the presumption. Similarly, the National Childhood Vaccine Act (Establishment. 2007. 42 U.S.C. § 300aa-1) contains a vaccine injury table (Vaccine Injury Table. 2007. 42 U.S.C. § 300aa-14) setting out presump- tions that particular adverse health effects occurring within a specified period after a child was vaccinated were caused by the vaccination. The act also requires showing that “there is not a preponderance of the evidence” that the claimed injury “is due to factors unrelated to the administration of the vaccine” (Determination of Eligibility and Compensation. 1999. 42 U.S.C.S. § 300aa-13[a][1][B]). These factors may, as shown by the claim-

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 LEGISLATIVE BACKGROUND ON PRESUMPTIONS ant’s evidence or other material in the record, “include infection, toxins, trauma (including birth trauma and related anoxia), or metabolic distur- bances which have no known relation to the vaccine involved, but which in the particular case are shown to have been the agent or agents principally responsible for causing” the claimed injury (Determination of Eligibility and Compensation. 1999. 42 U.S.C. § 300aa-13[a][2][B]). The claims process becomes more complicated, less certain, and more expensive if evidence has to be scrutinized by a claims adjuster. The cur- rent system of creating presumptions that permit “automatic” awarding of benefits when a veteran suffers from a named presumptive disease promotes administrative efficiency. It means, however, that scientific input into deci- sions about a veteran’s entitlement to disability payments occurs only at the front end of the process when a decision is made whether or not to service connect. PRESUMPTIONS GOVERNING RADIATION, AGENT ORANGE, AND GULF WAR EXPOSURES, IN GENERAL Many veterans exposed to radiation or Agent Orange in Vietnam or who served in the Persian Gulf War1 alleged they suffered from adverse health effects incurred through military service. Eventually, as discussed below, Congress legislated with regard to all three situations. Some of this legislation lists specific illnesses and adverse health effects and authorizes VA to adopt presumptions through rule making that would relieve a veteran from having to prove a service connection. Although the statutes resemble each other in some respects, and may have influenced each other, the case studies indicate that the data, decisions, and decision makers underlying the presumptions are quite dissimilar. For example, both Congress and VA have established presumptions for radiation. Only VA has established presumptions for Agent Orange. And although VA was given the authority by Congress to do so, VA has not made presumptions of service connection to date for diseases incurred by Persian Gulf War veterans; however, VA administers compensation for Persian Gulf War veterans who are service connected by the congressionally established presumption of “undiagnosed illnesses” that may become manifest within a presumptive period after service in the Gulf. Although most radiation exposures occurred considerably earlier than the Agent Orange exposures during the Vietnam War, Congress started to pay attention to both problems at approximately the same time. 1As defined in 38 U.S.C. § 101 (33), the term “Persian Gulf War” means “the period beginning on August 2, 1990, and ending on the date thereafter prescribed by presidential proclamation or by law.”

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 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS The Radiation Presumptions In 1984, Congress passed the Agent Orange and Atomic Veterans Relief Act (Public Law No. 98-592, 98 Stat. 2725 [1984] eventually became Veterans’ Dioxin and Radiation Exposure Compensation Standards Act. 1984. Public Law 98-542. 98th Cong., 2d Sess.), which provided benefits for veterans who had participated either in atomic bomb testing or in the postwar occupation of Hiroshima or Nagasaki if they developed leukemia, polycythemia vera, or carcinoma of the thyroid. This was intended to be a temporary measure until further studies were completed (see HR, Report 98-592, 98th Cong. 2d session, U.S. Congress, House of Representatives, 1984). This act does not contain presumptions but directed VA to adopt regulations that would assist veterans who had been exposed to radiation. In 1988, Congress passed the Radiation Exposed Veterans Compen- sation Act (1988. Public Law 100-321. 100th Cong., 2d Sess.). The act created a presumption that a veteran who suffered from one of 13 specified cancers, and who had participated in atomic bomb testing or the postwar Japanese occupation or was a Japanese prisoner of war during the specified time period, was entitled to disability benefits and free medical treatment. In 2002, an additional 5 cancers were added to the presumptive list (VA, 2002). Regulations adopted pursuant to the Veterans’ Dioxin and Radia- tion Exposure Compensation Standards Act (Claims Based on Exposure to Ionizing Radiation. 2006. 38 C.F.R. § 3.311) were designed to assist veterans who are not suffering from one of the presumptive cancers. If the veteran is suffering from a “radiogenic” disease listed in the regulation, VA is required to assess the “size and nature of the radiation dose” that the veteran may have received. When VA receives dose information and the report reflects a range of possible exposure levels, then VA must presume exposure at the highest end of the reported exposure range in making its determination (Claims Based on Exposure to Ionizing Radiation. 2006. 38 C.F.R. § 3.311[a]). Even if the disease is not listed as a “radiogenic” disease, VA is nevertheless required to “consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence” of the disease’s being “radiogenic” (Claims Based on Exposure to Ionizing Radiation. 2006. 38 C.F.R. § 3.111[b][4]). Claims are referred to the Under Secretary for Benefits who must determine whether “sound scientific and medical evidence supports the conclusion” that “it is at least as likely as not the veteran’s disease resulted from expo- sure to radiation in service. ‘Sound scientific evidence’ means observations, findings, or conclusions that are statistically and epidemiologically valid, are statistically significant, are capable of replication, and able to withstand peer review, and ‘sound medical evidence’ means observations, findings, or

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 LEGISLATIVE BACKGROUND ON PRESUMPTIONS conclusions that are consistent with current medical knowledge and are so reasonable and logical as to serve as the basis of management of a medical condition” (Claims Based on Exposure to Ionizing Radiation. 2006. 38 C.F.R. § 3.111c). Of all the presumptions, those governing exposure to radiation prob- ably rest on the firmest scientific evidentiary basis. As the case study indi- cates (see Appendix I), a great deal is known about the effects of radiation. Groups other than veterans who were exposed to radiation, such as down- winders, had exposures similar to the veterans, unlike the very different exposures experienced by workers who were treated as surrogates for veterans in studying the effects of dioxin exposures in factory accidents. Nevertheless, despite the presumptive diseases that have been estab- lished, many veterans have difficulty in establishing a service connection; they may be unable to furnish the required evidence of their exposure at a specified location and time, in part because such information may be clas- sified as secret (Podgor, 2005). They may then seek compensation under the nonpresumptive regulations because those provide that if the veteran claims to have been in a specified location on a particular date and the government cannot prove otherwise, it must be assumed that the veteran participated in activities that would have given rise to a presumptive decision. How- ever, because this is a nonpresumptive claim, the veteran will have to show adequate exposure (Podgor, 2005). In 2003, an NRC committee concluded that only about 50 nonpresumptive claims had been successful although thousands had been filed (NRC, 2003, p. 252). The Agent Orange Presumptions The historical background that led to the Agent Orange presumptions is set out in Chapter 2. By 1984, the courts had rejected the veterans’ claims that their illnesses were caused by exposure to Agent Orange, and VA was not providing disability benefits except for cases of chloracne. The veterans had fared better with Congress, which in 1981 authorized VA to provide hospital and outpatient care for veterans whose health problems allegedly stemmed from Agent Orange exposures (Veterans’ Health Care, Training, and Small Business Loan Act. 1981. Public Law 97-72. 97th Cong., 1st Sess.). When in 1984 Congress acted again and passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (1984. Public Law 98-542. 98th Cong., 2d Sess.), President Reagan observed in his signing statement that VA had already furnished medical care to over one million Vietnam veterans (Reagan, 1984). The 1984 act took three steps toward creating service-connection presumptions for diseases suffered by Vietnam veterans (Murphy, 1986). First, the act created some interim presumptions by directing VA to grant

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6 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS temporary disability benefits, lasting until September 30, 1986, to any veteran who contracted chloracne (a skin condition) or porphyria cutanea tarda (a liver disease) within one year of leaving Vietnam (Murphy, 1986). Second, the act required the Administrator of Veteran Affairs to promulgate guidelines and standards for determining whether claims based on exposure to Agent Orange were service connected (Murphy, 1986). Congress thereby authorized VA to handle dioxin claims via new procedures that it was to devise and promulgate through formal rule making rather than by adjudi- cations in individual proceedings. Third, the act directed the formation of an advisory committee to collect and evaluate scientific studies relating to the possible health effects of exposure to Agent Orange (Veterans’ Dioxin and Radiation Exposure Compensation Standards Act. 1984. Public Law 98-542. 98th Cong., 2d Sess.). In August 1985, after receiving input from the Veterans’ Advisory Com- mittee on Environmental Hazards, VA issued final regulations relating to the 1984 act that set out a process for adjudicating claims based on Agent Orange exposure (VA, 1985). The regulations concluded that “sound medi- cal and scientific evidence does not establish a cause-and-effect relationship between dioxin exposure” and any disease other than chloracne (Claims based on exposure to ionizing radiation. 1985. 38 C.F.R. § 3.311a[d]). In 1987, a number of veterans instituted a lawsuit challenging VA’s regulations as violating the 1984 act by adopting too high a standard for finding a connection between exposure to Agent Orange and manifesta- tion of a particular disease (Nehmer v. United States, 1989, United States District Court for the Northern District of California, Case Number 86- 6160). The plaintiffs contended that “Congress intended only that there be a significant ‘statistical association’ between dioxin and a particular disease in order to grant service connection for that disease.” VA conceded that its regulation required “proof of a causal relationship to grant service connection.” The court, after explaining that the issue to be decided was legal—what was Congress’ intent—and not the scientific question of which test was scientifically valid, turned to the language of the 1984 act in order to determine congressional intentions (Nehmer v. United States, 1989, United States District Court for the Northern District of California, Case Number 86-6160, pp. 4-6). The court first pieced together a number of different statements in the act because the applicable standard of proof was not directly addressed. The court found that “the language of the act is at best ambiguous, at worst silent” because Congress spoke in terms of both association and cause. Because the text was inconclusive, the court next looked at the legislative history to ascertain Congress’ purpose. After reviewing comments by mem- bers of House and Senate committees that had jurisdiction over the act, the court concluded “that Congress did not intend VA to use a causal relation-

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 LEGISLATIVE BACKGROUND ON PRESUMPTIONS ship,” but suggested that “service connection to be granted on the basis of ‘an increased risk of incidence,’ or a ‘significant correlation’ between dioxin and various diseases.” According to the court, this standard was consistent with previous practices that had established presumptions of service con- nectedness for amputees and prisoners of war (Nehmer v. United States, 1989, United States District Court for the Northern District of California, Case Number 86-6160, pp. 7-9). VA announced that it would not appeal the Nehmer decision and that it would abide by the court’s ruling and issue new Agent Orange regula- tions. The litigation has continued as to whether veterans denied benefits pre-Nehmer are entitled to receive benefits retroactively even for conditions that were service-connected after the date of Nehmer. The 9th Circuit Court of Appeals so held on July 19, 2007. Congress also took further steps. In 1991, after numerous hearings and committee reports, it enacted the Agent Orange Act (Agent Orange Act of 1991. Public Law 102-4. 102d Cong., 1st Sess.; codified, as amended, Presumptions of Service Connection for Diseases Associated with Exposure to Certain Herbicide Agents. 2006. 38 U.S.C. § 1116). The Agent Orange Act continued to use both association and causa- tion language, albeit in a somewhat different form. It gave the VA Secretary authority to prescribe regulations providing for a presumption “[w]henever the Secretary determines, on the basis of sound medical and scientific evi- dence, that a positive association exists between” the Agent Orange expo- sure and a disease. The act states that An association between the occurrence of a disease in humans and expo- sure to an herbicide agent shall be considered to be positive for the pur- poses of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. (Agent Orange Act of 1991. Public Law 102-4. 102d Cong., 1st Sess.) Rather than relying on an advisory committee to furnish scientific input, the act directed VA to contract with the National Academy of Sciences (NAS) “to review and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides” (Agent Orange Act of 1991. Public Law 102-4. 102d Cong., 1st Sess.). In making an association determina- tion, the VA Secretary was instructed to consider the NAS reports and “all other sound medical and scientific information and analyses available to the Secretary,” and in evaluating any study, the VA Secretary is to “take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review” (Agent Orange Act of 1991. Public Law 102-4. 102d Cong., 1st Sess.).

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 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS Congress directed the committee to answer “to the extent that available scientific data permit meaningful determinations” (Scientific Determina- tions Concerning Disease. 2006. 38 U.S.C. § 1116.3[d][1]) about 1. whether a statistical association with herbicide exposure exists, taking into account the strength of the scientific evidence and the appro- priateness of the statistical and epidemiologic methods used to detect the association; 2. the increased risk of disease among those exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and 3. whether there exists a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and disease. The first IOM Veterans and Agent Orange (VAO) committee that was convened to respond to these questions (IOM, 1994, p. 15) concluded that a lack of exposure data made it impossible to answer the second question. The other two questions required the committee to examine the cause of the particular health effect at issue. This is explicit in question 3, which man- dates inquiry into a “causal relationship.” Question 1 also requires a causal inquiry, though it makes this request implicitly. As Dr. Hertz-Picciotto, the chair of the 2000 and 2002 IOM committees explained: “[A]ny determina- tion about the existence of ‘statistical association’ that takes into account ‘strength’ of the evidence and ‘appropriateness’ of the methods examines the same concerns that enter into a consideration of evidence for causation” (Hertz-Picciotto, 2005, p. 556). The first IOM VAO committee began meeting in 1992 and issued its first review in 1994 (IOM, 1994). It decided to place the data it found and reviewed into one of four categories: sufficient evidence of an associa- tion; limited/suggestive evidence of an association; inadequate/insufficient evidence to determine whether an association exists; limited/suggestive evi- dence of no association. It was required to update its reports every 2 years or sooner. The IOM VAO committees at times changed the category for several particular health outcomes, as successive reviews considered additional evidence. VA’s response and establishment of a presumption to the IOM categorization of the particular health outcome was not necessarily consis- tent. For example, the VAO committees in 1994 and 1996 characterized the evidence linking Agent Orange to prostate cancer as limited/suggestive of an association (IOM, 1994, 1996). VA did not establish a presumption for prostate cancer in 1994. It was not until 1996 that VA decided that prostate cancer should be presumptively service-connected (VA, 1996). In another example, the 1994 IOM VAO committee characterized the evidence link- ing herbicides to type 2 diabetes to be inadequate/insufficient to determine

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 LEGISLATIVE BACKGROUND ON PRESUMPTIONS if an association existed (IOM, 1994). In 2000, a special Agent Orange committee was constituted at the request of VA to evaluate type 2 diabetes independent of the IOM VAO biennial reviews (IOM, 2000b). The commit- tee characterized the evidence as limited/suggestive of an association (IOM, 2000b). VA then decided that type 2 diabetes should be presumptively service-connected (VA, 2001). It was not clear from the Federal Register notice why VA concluded that the existence of limited/suggestive evidence was equivalent to the requirement of “credible evidence for the association is equal to or outweighs the credible evidence against the association” or a “positive association” as required by the Agent Orange Act of 1991 (Public Law 102-4. 102d Cong., 1st Sess.). The statement in the Federal Register reporting the VA Secretary’s decision to presumptively service-connect (VA, 2001) did not explicitly explain how these conclusions were reached. The Persian Gulf War Presumptions The Persian Gulf War was fought during a very short period in 1991. Almost immediately, veterans began to complain of numerous adverse health effects that they attributed to service in the Gulf. It immediately became evident to Congress and VA that the Persian Gulf veterans’ health complaints differed significantly from those voiced by the Vietnam veterans. The Vietnam veterans ascribed their medical woes to herbicides and Agent Orange, and they claimed that the numerous well-defined diseases from which they suffered, ranging from skin and liver diseases to a variety of cancers, could be attributed to exposure to herbicides and Agent Orange. The Persian Gulf War veterans, on the other hand, claimed to be suffering from syndromes and symptoms rather than established diseases, and they blamed these on exposures to a host of toxic environmental substances that were present in the Persian Gulf. Many of the exposures are no different than those experienced by civilians in the United States, and for the great majority of veterans, the magnitude of the exposures was small, and limited to a short period of time (Brown, 2005). Congress began by authorizing VA to provide health-care services on a priority basis to Persian Gulf veterans (Priority VA Health Care for Persian Gulf Veterans. 1993. Public Law 103-210. 103d Cong., 1st Sess.). An effort was also undertaken to gather data about the nature of the illnesses and symptoms that veterans claimed to have, as well as to conduct research on environmental exposures that occurred during the war. In 1994, Congress passed the Veterans’ Benefits Improvements Act (Public Law 103-446. 103rd Cong., 2d Sess., codified as Compensation for Disabilities Occurring in Persian Gulf War Veterans. 2006. 38 U.S.C. § 1117), which authorized VA to compensate veterans for certain chronic disabilities and illnesses that could not be attributed to any known clinical diagnosis. Originally,

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0 IMPROVING THE PRESUMPTIVE DISABILITY DECISION-MAKING PROCESS these adverse health effects had to manifest within 2 years of service in the Persian Gulf in order for a veteran to receive compensation. This presump- tive time period has, however, been extended a number of times. Most recently in December 2006, compensation is now available provided the disability of “undiagnosed illness” becomes manifest by December 31, 2011 (VA, 2006a, p. 75672). In 1998, Congress passed the Persian Gulf War Veterans Act of 1998 (Public Law 105-277. 105th Cong., 2d Sess., codified, in part, as Presump- tions of Service Connection for Illnesses Associated with Service in the Persian Gulf During the Persian Gulf War. 2006. 38 U.S.C. § 1118) and the Veterans Programs Enhancement Act of 1998 (Public Law 105-368. 105th Cong., 2d Sess.). These acts, which are similar to the Vietnam War Agent Orange legislation, set up procedures for establishing presumptions of service connection for diseases incurred by Gulf War veterans. As in the Agent Orange legislation, “a positive association” is required between an environmental exposure associated with service in the Persian Gulf War and “the occurrence of a diagnosed or undiagnosed illness in humans or animals” (Presumptions of Service Connection for Illnesses Associated with Service in the Persian Gulf During the Persian Gulf War. 2006. 38 U.S.C. § 1118[b][1][B][ii]). In addition, the Gulf War Act stated that an associa- tion “shall be considered to be positive . . . if the credible evidence for the association is equal to or outweighs the credible evidence against the asso- ciation” (Presumptions of Service Connection for Illnesses Associated with Service in the Persian Gulf During the Persian Gulf War. 2006. 38 U.S.C. § 1118[b][3]). The same review process as was set up for Agent Orange was established for Gulf War. An agreement was entered into with NAS to establish committees that were charged with answering similar questions as asked of the IOM VAO committees (Persian Gulf War Veterans Act of 1998. Public Law 105-277. 105th Cong., 2d Sess.). As with Agent Orange, the IOM committee provides its Gulf War reports to VA, and the VA Sec- retary must then determine whether a presumption should be established and announce the decision in the Federal Register. IOM has issued several volumes of Gulf War reports (IOM, 2000a, 2003, 2005, 2006, 2007). Although VA was given the authority by Congress to do so, VA has not made presumptions of service connection to date for diseases incurred by Persian Gulf War veterans pursuant to 38 U.S.C. § 1118 (Presumptions of Service Connection for Illnesses Associated with Service in the Persian Gulf During the Persian Gulf War. 2006. 38 U.S.C. § 1118). However, VA administers compensation for Persian Gulf War veterans who are service connected by the congressionally established presumption of “undiagnosed illnesses” that may become manifest within a presumptive period after service in the Gulf. In February 2006, the VA Secretary wrote to leaders of the House and Senate Veterans Affairs Committees advising them that the

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1 LEGISLATIVE BACKGROUND ON PRESUMPTIONS evidence currently available did not warrant the establishment of Persian Gulf presumptions and that VA would publish notices of its decision in the Federal Register “explaining the basis for that determination” (Nicholson letters on file with committee, 2006a,b,c,d). As of the time of report publica- tion, no statement appears in the Federal Register, although such statements are required to be filed within 60 days of the receipt of an IOM report (Presumptions of Service Connection for Illnesses Associated with Service in the Persian Gulf During the Persian Gulf War. 2006. 38 U.S.C. § 1118). Although the presumptive service-connection mechanism has not been a major factor for Persian Gulf veterans, a comparatively large percentage of Persian Gulf veterans have, nonetheless, been able to collect compensation through the direct service-connection route (Brown, 2006). As of now, the Persian Gulf statutes would govern any presumptions dealing with current service in Iraq or any other area in the Gulf. REFERENCES Brown, M. 2005. The role of science in Department of Veterans Affairs disability compensa- tion policies for environmental and occupational illness and injuries. Journal of Law and Policy 13(2):593-612. Brown, M. 2006. The role of science in Department of Veterans Affairs disability compensa- tion policies for environmental and occupational illness and injuries. Paper presented to the IOM’s Committee on Evaluation of the Presumptive Disability Decision-Making Process for Veterans, Washington, DC. Hertz-Picciotto, I. 2005. How scientists view causality and assess evidence: A study of the Insti- tute of Medicine’s evaluation of health effects in Vietnam veterans and Agent Orange. Journal of Law and Policy (Brooklyn Law School) 13(2):553-591. IOM (Institute of Medicine). 1994. Veterans and Agent Orange: Health effects of herbicides used in Vietnam. Washington, DC: National Academy Press. IOM. 1996. Veterans and Agent Orange: Update 16. Washington, DC: National Academy Press. IOM. 2000a. Gulf War and health, volume 1: Depleted uranium, pyridostigmine bromide, sarin, vaccines. Washington, DC: National Academy Press. IOM. 2000b. Veterans and Agent Orange: Herbicide/dioxin exposure and type  diabetes. Washington, DC: National Academy Press. IOM. 2003. Gulf War and health, volume : Insecticides and solvents. Washington, DC: The National Academies Press. IOM. 2005. Gulf War and health, volume : Fuels, combustion products, and propellants. Washington, DC: The National Academies Press. IOM. 2006. Gulf War and health, volume : Health effects of serving in the Gulf War. Wash- ington, DC: The National Academies Press. IOM. 2007. Gulf War and health, volume : Infectious diseases. Washington, DC: The National Academies Press. Murphy, S. 1986. A critique of the Veterans Administration claims process. Brooklyn Law Review 52:533-569. NRC (National Research Council). 2003. A review of the dose reconstruction program of the Defense Threat Reduction Agency. Washington, DC: The National Academies Press.

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