Improving the Presumptive Disability Decision-Making Process for Veterans (2008)

Presumptions have played an important role in both the conceptual basis for service connection and the actual administration of the Department of Veterans Affairs (VA) compensation program. Presumptions are used to bridge gaps in scientific and medical knowledge, as well as to resolve complex policy questions and simplify determinations of service connection for VA (VA, 1993a). This chapter offers a brief history of the presumptive disability decisions established for veterans since 1921. It is not intended as a comprehensive or exhaustive account of all presumptive decisions; rather, it provides background on presumptions—it explains how they operate, why they are used, and their role in making disability compensation available to veterans. The chapter focuses on presumptions for health outcomes rather than administrative presumptions. For a comprehensive review of presumptive decisions, the reader is referred to Analysis of Presumptions of Service Connection (VA, 1993a), Presumptions of Service Connection (Zeglin, 2006), VA Disability Compensation Program: Legislative History (Economic Systems Inc., 2004a), and VA Disability Compensation Program: Literature Review (Economic Systems Inc., 2004b).

In the law, there is general agreement about what a presumption is, although there is considerable controversy about what a presumption does. A presumption is a procedural device that dictates that once basic fact A is

established, the existence of fact B must be assumed unless the presumed fact is rebutted. A presumption therefore operates to relieve a party of the burden of establishing facts that it would otherwise be required to prove in order to prevail on its claim. A presumption that cannot be rebutted is a rule of substantive law; it does not satisfy the definition of a presumption because fact B must be assumed conclusively rather than conditionally. It does not allow for the possibility that fact B can be disproved.

A legislature has numerous choices when drafting a presumption; there is no uniform terminology that must be employed. To ensure passage, presumptions are often couched in somewhat ambiguous terms, particularly when they deal with sensitive and controversial policy issues. The result may be a deliberate fuzziness and ambiguity in the language that governs a particular presumption that will ultimately require recourse to the courts (Allen, 1980). Consequently, it is not always simple to determine precisely why a particular presumption was adopted or how it should be interpreted.

Presumptions are created for a number of reasons. They promote fairness by simplifying proceedings and by making it less burdensome for claimants to gather evidence that is more accessible to the party against whom the claim is asserted. When the probability of the presumed fact’s existence is high if the basic fact exists, presumptions eliminate the expense and time that would be required to establish the presumed fact by direct evidence. Sometimes presumptions are established for policy reasons because of a desire to make it easier for particular types of claimants to establish their claims. This may for instance be true for veterans’ claims when information needed for an epidemiologic assessment, such as exposure data, is unavailable because it was not collected at the relevant time. Gratitude and sympathy for those who served their country obviously also play an important role (Reagan, 1988).

A true presumption affects the burden of proof. This can, however, mean different things as legislators, administrators, and judges do not always use consistent terminology to express their intentions. Burden of proof is a term used to label two different concepts: the burden of production and the burden of persuasion (Director, Office of Workers’ Compensation Programs, Department of Labor v. Greenwich Collieries et al., 1994. 512 U.S. Supreme Court 267, Case No. 93-744). See 512 U.S. Supreme Court 267, Case No. 93-744, for an extensive discussion of the evolution

of the term burden of proof. A claimant or plaintiff ordinarily begins with both burdens. For instance, a veteran who relies on direct proof to show that he has a service-connected disability must generally both (1) produce evidence on that issue, and (2) persuade VA that the service connection exists.

There are two major types of presumptions. Type 1 presumptions shift both the burden of production and the burden of persuasion. Type 2 presumptions have a lesser effect. For type 2 presumptions, establishment of the basic fact does not shift to the other party the burden of persuading the adjudicator that the presumed fact does not exist. The other party of the presumption only has to produce evidence that is contrary to, or meets the presumption. If the other party does so, the presumption vanishes, and the party with the original burden of persuasion—the party that had to establish the basic fact—continues to have the burden of proving the presumed fact.

The difference between type 1 and 2 presumptions can be illustrated by the presumption of death after an unexplained absence of 7 years. If the presumption is a type 2 presumption, as it would be under the Federal Rules of Evidence unless Congress provides otherwise (Federal Rules of Evidence: Rule 301: Presumptions in General Civil Actions and Proceedings. 1975. Public Law 93-595. 93rd Cong., 2nd Sess.), the plaintiff would prove an absence of 7 years, the basic facts needed for the presumption to apply. Under Rule 301 if the opponent of the presumption introduces a witness to testify that she saw the absentee 1 year after his disappearance, the presumption vanishes, and the plaintiff has the burden of proving death as though there had never been a presumption. If this is a type 1 presumption, as it is in presuming death for veterans after a 7-year absence (Seven-Year Absence Presumption of Death. 2006. 38 U.S.C. § 108), the basic facts establish death unless VA has sufficient evidence to show that the veteran is alive.

There are several reasons justifying the widespread use of presumptions in the adjudication of VA benefit claims. Presumptions may simplify and streamline the adjudication process by eliminating the need to obtain evidence and decide complex issues. Presumptions also promote accuracy and consistency in adjudications by requiring similar treatment in similar cases. Presumptions may relieve claimants and VA of the necessity of producing direct evidence when it is impractical or unduly burdensome to do so.

“Finally, presumptions may implement policy judgments that the burdens arising in certain cases be borne by the government rather than the veteran claimants notwithstanding the uncertainty surrounding the issue of whether the claimants’ disabilities were, in fact, incurred or aggravated by service” (Zeglin, 2006, p. 3).

To establish direct service connection for a VA disability compensation claim, a veteran must demonstrate the following: (1) that a disability currently exists, (2) that an event of disease or injury occurred or was aggravated in the military, and (3) that a medical connection can be shown between the service event and the existing disability (as stated in Barrans, 2006). Presumptions lighten the burden of proof when patterns of circumstances impair veterans’ abilities to establish direct service connection. A presumption relieves the veteran of proving one or more of the requirements for direct service connection. The only difference between direct and presumptive service connection is the amount of proof required. All entitlements under presumptive service connection are identical to those under direct service connection (VA, 2006c).

There are both statutory and regulatory presumptions. Some presumptions relate to particular medical health outcomes, and others are administrative in nature (Pamperin, 2006). For example, there are several well-known presumptions of an administrative nature: presumption of death, presumption of sound condition, presumption of service connection due to aggravation, and presumption of total disability. The definitions of these presumptions are as follows:

• Presumption of death: Presumption of death upon 7 years of unexplained absence (Seven-Year Absence Presumption of Death. 38 U.S.C. § 108[b])

• Presumption of sound condition: “Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” (Presumption of Sound Condition. 38 U.S.C. § 1111)

• Presumption of service connection—Aggravation: “A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such [active] service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” (Compensation for Service-Connected Disability or Death. Aggravation. 38 U.S.C. § 1153)

• Presumption of total disability: “A person shall be considered to be permanently and totally disabled if such person is … suffering from any

disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person.” (Veterans’ Benefits. Determination with Respect to Disability. 38 U.S.C. § 1502)

Medical health outcome presumptions have generally been adopted after periods of war and have been driven by the concerns of and for returning Service members. Military service is demanding, and those serving often do not know where they will be stationed and to which agents they will be exposed. In addition, military personnel are governed by the “line of duty” clause. VA will cover disability for a veteran “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty, in the active military, naval, or air service,” unless such injury or disease was “a result of the veteran’s own willful misconduct or abuse of alcohol or drugs” (Compensation for Service-Connected Disability or Death. Basic Entitlement. 38 U.S.C. § 1110).

Presumptions established by Congress and VA have generally been defined by or linked to a location (e.g., service in Persian Gulf, Vietnam) or an activity (e.g., detonation of a nuclear device). Presumptions have also been defined by categories of disease. In general, VA categorizes medical health outcome presumptive decisions into the following categories: Chronic Diseases, Tropical Diseases, Former Prisoners of War (POWs), Radiation, Herbicide Agents, Mustard Gas/Lewisite, and Persian Gulf War (Zeglin, 2006).

Veterans are entitled to compensation for certain medical conditions that become manifest to a degree of 10 percent or more disability after they leave the military service, if there is a relationship between service and the condition being claimed (Presumptions Relating to Certain Diseases and Disabilities. 38 U.S.C. § 1112). The health outcomes for presumptions must be rated at least at a 10 percent level in order for a veteran to receive compensation for a specific presumption (Presumptions Relating to Certain Diseases and Disabilities. 38 U.S.C. § 1112). In addition, a veteran must establish the presumptive relationship within the prescribed presumptive period set by Congress or VA. The presumptive period is the allowable period after active duty period in which a veteran must develop a disease in order to be eligible for compensation. In the past, most presumptive periods were set at 1 year. Recently, the presumptive periods associated with certain diseases have been greatly lengthened to accommodate the long latency periods associated with some health outcomes (e.g., cancers), the considerable time required to resolve disability, the problems caused by government-mandated secrecy about some exposures (e.g., mustard gas during WWII)

(see Appendix F, Table 1). Personal habits (e.g., tobacco use, alcohol and substance abuse) can be used to rebut presumptions, but in practice this is infrequently done (as stated in Barrans, 2006). Only subsequent to the diagnosis of mental health disorders will VA cover a veteran’s alcohol and substance abuse treatment (as stated in Pamperin, 2006).

The last extensive study of the use of presumptions was performed by the Bradley Commission in the 1950s. The Bradley Commission recommended that the existing presumptions for service connection should be withdrawn. They felt that “there is otherwise in the law sufficient protection for the veteran to establish service connection of any and all diseases” (President’s Commission on Veterans’ Pensions, 1956, p. 178). The Bradley Commission noted that several diseases that were presumptively service connected were probably caused by old age, not necessarily service. It also believed that some diseases that were presumptively service connected had little to do with service in the military and in fact would be developed regardless of active duty. In addition to this, the specialists believed that more thorough medical exams should be given to Service members after military service to better classify health status after active duty. Overall, they believed that the list of chronic diseases at the time needed to be completely resurveyed to more accurately reflect the most updated medical knowledge. They noted advancements in treatment and diagnosing methods to support their theory. One criticism was that the system for presumptive conditions was outdated and overly simplistic. The findings not only called for a change in methods but also demanded much stricter guidelines for rating presumptive conditions. In addition, the Bradley Commission stated that medical principles should allow direct service connection rather than having to resort to presumptions in many instances. The analysis cited changes in medical knowledge and improving technology as reasons for updating the rating system and urged VA to completely change its policy of expansive presumptive periods to reflect the current situation of the medical world (President’s Commission on Veterans’ Pensions, 1956). Congressional hearings on the report were held, but no favorable action was taken on these recommendations.

Members of Congress, representatives of VA, veterans service organizations (VSOs), and individual veterans have long debated the basis for and application of presumptions of service connection (VA, 2006b). The general categories of arguments favoring and opposing presumptions can be found in Table 2-1. Appendix E provides quotations that support these categories of arguments favoring and opposing presumptions.

This section summarizes presumptions that were established by Congress and VA from the 1920s to present. The health outcomes covered can generally be organized into the following presumptive categories: Chronic Diseases, Tropical Diseases, Former Prisoners of War, Radiation, Herbicide Agents, Mustard Gas/Lewisite, and Persian Gulf War. Table 2-2 summarizes all of the health outcomes that have been service connected for these presumptive categories to date. The information in this table was compiled from the health outcomes found in Tables F-1 and F-2 of Appendix F, which list all of the appropriate public laws and statutory citations. There are nearly 150 health outcomes that have been presumptively connected by Congress and VA since 1921.

The first presumptions were established in 1921: “In my opinion, that provision of the law which places the burden upon the disabled veteran of connecting his disease with his service has been responsible for more complaints, dissatisfaction and disappointment … than any other single provision…. Consequently, I propose to offer an amendment to section 18 which will shift the burden of proof in the case of two classes of disease

only—tubercular and neuropsychiatric. I propose that when it is proved by an incapacitated soldier that he has either of these two types of disease he shall immediately be entitled to compensation unless the Government proves—the burden thus being shifted to the Government—that he has contracted the disease since the time of his discharge and it is not traceable to service in line of duty” (Senator Walsh, 61 Cong. Rec. 4105, 1921, as referenced in VA, 1993a, p. 7, and as found in Appendix E).

Neuropsychiatric disease (later called psychoses) and active pulmonary tuberculosis were the first two presumptions established on August 9, 1921 (Veterans’ Bureau. Public Law 67-47. 1921. 67th Cong., 1st Sess.). These health outcomes must have manifested to 10 percent or more within 2 years of separation from active military service and must have been contracted during military service. On November 12, 1921, the first list of chronic constitutional diseases (later referred to as Chronic Diseases) was established (VA, 1921). These must have manifested within 1 year after the date of separation from service. The list included anemia (primary), arteriosclerosis, beriberi, diabetes insipidus, diabetes mellitus, endocrinopathies, gout, hemochromatosis, hemoglobinuria (paroxysmal), hemophilia, Hodgkin’s disease, leukemia (all types), ochronosis, pellagra, polycythemia (erythremia), purpura, rickets, and scurvy. The category of Chronic Diseases was expanded in 1924 (World War Veterans’ Act, 1924. Public Law 68-242. 68th Cong., 1st Sess.), 1925 (VA, 1925), and 1928 (VA, 1928).

In 1933, epilepsies and organic diseases of the nervous system were added to the Chronic Diseases category, and requirements for the manifestation of tuberculosis were more specifically characterized (Executive Order 6089. Instruction No. 2, Implementing Vet. Reg. No. 1. April 12, 1933). Osteitis deformans (Paget’s disease) was added in 1935 (Executive Order 6089. Instruction No. 2-A, Implementing Vet. Reg. No. 1. August 14, 1935).

The 1940s saw the growth in the number of presumptions and the addition of one new presumptive category—Tropical Diseases. The first tropical disease for which a presumption was made was malaria in 1945 (VA, 1945). Malaria must have been contracted during active service with a presumptive period of 1 year after separation from active military service. The Tropical Diseases category was greatly expanded in 1946 (VA, 1947) and 1948 (Act of June 24, 1948. Public Law 80-748. 80th Cong., 2d Sess.) with clarifications appearing in 1949 (VA, 1949a). As well, the number

of presumptions in the category of Chronic Diseases increased greatly in 1948 (Act of June 24, 1948. Public Law 80-748. 80th Cong., 2d Sess.) and 1949 (VA, 1949a,b). The increase in the number of presumptions during this decade was related to the high incidence of such diseases observed in returning veterans from WWII.

The 1950s were not very active in establishing new presumptions. Sarcoidosis was added to the Chronic Diseases category, and amebiasis was added to the Tropical Diseases category in 1950 (VA, 1950). Clarifications on the dates of service, locations, and presumptive periods occurred in 1957 (Veterans’ Benefits Act of 1957. Public Law 85-56. Sec. 301. 85th Cong., 1st Sess.). It should be noted that the Bradley Commission, which reviewed the presumptive process and decisions, issued its report in 1956 (President’s Commission on Veterans’ Pensions, 1956).

In 1961, criteria for the presumptions in the Chronic Diseases and Tropical Diseases categories appeared (VA, 1961). No new presumptions were created during this decade.

A new presumptive category was established in the 1970s—Former Prisoners of War (POWs). POWs from WWII, the Korean War, and the Vietnam era were specifically connected for various physical and mental health outcomes in 1970 (Public Law 91-376. Sec. 3. 91st Cong., 2d Sess., 1970). “Problems with nutrition, forced labor, and other inhumane treatment were deemed to be strong reasons to presume that the conditions were the direct result of captivity” (Economic Systems Inc., 2004a, p. 20). Clarification for the presumptive periods of Hansen’s disease (leprosy) and tuberculosis to 3 years as well as multiple sclerosis to 7 years from date of separation occurred in 1970 (VA, 1970). In 1979, ischemic heart disease (or other cardiovascular disease) was presumptively associated with service amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles (VA, 1979).

The decade demonstrated an expansion of presumptions with in the categories of POWs, Herbicide Agents, and Radiation. In 1981, the POW

imprisonment requirement of 90 days or more was reduced to 30 days or more (Former Prisoner of War Benefits Act of 1981. Public Law 97-37. 97th Cong., 1st Sess.). In 1985, chloracne was presumptively connected with dioxin exposure (VA, 1985). In that same year, presumptions for exposure to ionizing radiation in Hiroshima or Nagasaki, Japan (September 1945 until July 1946) and all forms of leukemia (except chronic lymphatic leukemia), many cancers, and multiple myeloma were made (VA, 1985). For POWs, organic residuals of frostbite and posttraumatic osteoarthritis were added in 1986 (Veterans’ Benefits Improvements and Health-Care Authorization Act of 1986. Public Law 99-576. 99th Cong., 2d Sess.). In 1988, the scope of presumptive service connection law expanded dramatically when Congress passed a law providing a 40-year presumptive period for a long list of cancers associated with nuclear testing during the 1940s (Veterans’ Benefits and Services Act of 1988. Public Law 100-322. 100th Cong., 2d Sess.). This law introduced the phrases “radiation-exposed veteran” and “radiation-risk activity,” and added to the list POWs who were being held in Japan at the time of the nuclear detonations.

The generation of presumptions accelerated in the decade of the 1990s. Each year of this decade new presumptions or clarifications of presumptive periods were established by Congress or VA. The Radiation Exposure Compensation Act of 1990 (Public Law 101-426. 101st Cong., 2d Sess.) added presumptions for downwinders to the Radiation category, but it did not cover veterans. Also in 1990, non-Hodgkin’s lymphoma was presumptively connected for Vietnam service (VA, 1990). In 1991, Congress passed the Agent Orange Act (Public Law 102-4. 102d Cong., 1st Sess.). This act added non-Hodgkin’s lymphoma, soft-tissue sarcomas, and chloracne (or other acneform disease) in the presumptive category of Herbicide Agents. Presumptions for the Mustard Gas/Lewisite category, stemming from WWII full-body, field, or chamber experiments, were established in 1992 (VA, 1992a). Also in 1992, peripheral neuropathy was presumptively connected to the Herbicide Agents category (VA, 1992b), and cancer of the salivary gland and urinary tract were added to the Radiation category (Veterans’ Radiation Exposure Amendments of 1992. Public Law 102-578. 102d Cong., 2d Sess.). Both ovarian cancer and parathyroid cancer were presumptively connected to the Radiation category in 1993 (VA, 1993b). During that same year, posttraumatic stress disorder was presumptively connected for military service and former POWs (VA, 1993c). Finally, several additional diseases associated with service in Vietnam were added in 1993 (VA, 1993d).

In 1994, numerous additions occurred in the presumptive categories of Mustard Gas/Lewisite (VA, 1994a), Herbicide Agents (VA, 1994d,e;

Veterans’ Benefits Improvements Act of 1994. Public Law 103-446. 103d Cong., 2d. Sess.), and Radiation (VA, 1994b). Also in 1994, the Persian Gulf War undiagnosed illnesses were proposed (VA, 1994c). The Persian Gulf War undiagnosed illnesses were finalized in the 1995 Compensation for Certain Undiagnosed Illnesses rule, the first time that Congress had made a presumption for a list of medical terms (VA, 1995b). Additional presumptions in the Radiation category were added for cancer of the rectum and lymphomas (other than Hodgkin’s disease) later that year (VA, 1995a). In 1996, prostate cancer as well as acute and subacute peripheral neuropathy were presumptively connected under the category of Herbicide Agents (VA, 1996). The presumptive period for undiagnosed illnesses to manifest within 2 years after service was extended to December 31, 2001, in 1997 (VA, 1997). Prostate cancer and any other cancer were presumptively connected for the Radiation category in 1998 (VA, 1998). The Persian Gulf War Veterans Act of 1998 (Public Law 105-277. 105th Cong., 2d Sess.) established service connection for diseases associated with exposure to biological, chemical, or toxic agents; environmental or wartime hazards; or preventive medicines or vaccines associated with service in the southwest Asia theater of operations during the Persian Gulf War. Finally, the Veterans Millennium Health Care and Benefits Act of 1999 (Public Law 106-117. 106th Cong., 1st Sess.) established a presumption for bronchioloalveolar carcinoma and radiation exposure.

The final Veterans Millennium Health Care and Benefits Act presumptively connected bronchiolo-alveolar carcinoma to radiation exposure in 2000 (VA, 2000). In April 2001, VA published a final rule stating that veterans’ use of tobacco products and associated adverse health outcomes would not be considered service connected (VA, 2001a). In May 2001, VA presumptively connected type 2 diabetes with herbicide exposure (VA, 2001b). In the same year, additional presumptions for the Radiation category were established (VA, 2001c) and clarifications for presumptive periods relating to Persian Gulf War and Vietnam service were published (VA, 2001d; Veterans Education and Benefits Expansion Act of 2001. Public Law 107-103. 107th Cong., 1st Sess.). Additional cancer presumptions were added for radiation-risk activities in 2002 (VA, 2002). Cirrhosis of the liver was presumptively connected in 2003 for former POWs (VA, 2003b), and chronic lymphocytic leukemia was presumptively connected the same year for herbicide exposures (VA, 2003a). The list of diseases presumptively connected for POWs was expanded in 2003 (Veterans Benefits Act of 2003. Public Law 108-183. 108th Cong., 1st Sess.), and additional

diseases were presumptively connected for POWs in 2004 (VA, 2004). The definition of radiation-risk activity was clarified in 2004 to include service in a capacity if performed as an employee of the Department of Energy (Veterans Benefits Improvement Act of 2004. Public Law 108-454. 108th Cong., 2d Sess.). Once again, additional health outcomes were presumptively connected for POWs in 2005 (VA, 2005). In early 2006, Congress codified all presumptions established to date (Veterans’ Benefits. Title 38 U.S.C.). In 2006, VA published an interim final rule that the presumptive period for undiagnosed illnesses to manifest within 2 years after service would be extended to December 31, 2011 (VA, 2006a).

Many presumptive decisions have been made since the first presumptions were established in 1921. These decisions reflect the complexity of exposures during service. The increased longevity of veterans means that there are many more diseases from which veterans may suffer and which may have originated in military service. In the 50 years since the Bradley Commission’s report was released (President’s Commission on Veterans’ Pensions, 1956), there have been substantial changes in medical care and in the evidence relevant to making presumptions. However, a need for presumptions has persisted, and the creation of new presumptions has increased rapidly in the last two decades.

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