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Improving the Presumptive Disability Decision-Making Process for Veterans Appendix D Historical Background1 FROM THE BEGINNING Our nation has recognized military veterans’ service and sacrifices since its very earliest days. On August 26, 1776, the Continental Congress adopted the first national pension law provided for compensation payments to be made to “every officer, soldier, or sailor losing a limb in any engagement or being so disabled in the service of the United States as to render him incapable of earning a livelihood” (VA, 1971, p. 306; VA, 2006a). The 1818 Service Pension Law “provided that every person who had served in the War for Independence and was in need of assistance would receive a fixed pension for life. The rate was $20 a month for officers and $8 a month for enlisted men” (VA, 2006a, p. 4). Because pensions had previously been to disabled veterans only, the number of pensioners quickly increased from 2,200 to 17,730, and the cost from $120,000 to $1.4 million (VA, 2006a, p. 4). CIVIL WAR AND AFTERMATH When the Civil War broke out in 1861, the nation had about 80,000 war veterans. By the end of the war in 1865, another 1.9 million veterans had been added to the rolls. This included only veterans of Union forces…. The General Pension Act of 1862 provided disability payments based on rank and degree of disability, and liberalized benefits for widows, children, and dependent relatives. The law covered military service in time of peace as well as during the Civil War. The act included, for the first time, compensation for diseases such as tuberculosis incurred while in service. Union veterans also were assigned a special priority in the Homestead Act of 1862, which provided land in the West at $1.25 an acre. The year 1862 also marked the establishment of the National Cemetery System to provide burial for the many Union dead of the Civil War. (VA, 2006a, p. 4) Until 1890, Civil War pensions were granted only to servicemen discharged because of illness or disability attributable to military service. The Dependent Pension Act of 1890 substantially broadened the scope of eligibility, providing pensions to veterans incapable 1 The Historical Background section is an adapted version of VA History in Brief (VA, 2006a) except where otherwise noted.
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Improving the Presumptive Disability Decision-Making Process for Veterans of manual labor. Within the next three years the number of veterans on the pension roll increased from 489,000 to 996,000 and expenditures doubled. Legislation passed in the nineteenth century had established a general pension system that could be applied to future pension recipients. As a consequence, new pension laws did not follow the Spanish-American War in 1898 or the Philippine Insurrection, 1899 to 1901. (VA, 2006a, p. 5) WORLD WAR I The United States’ entry into World War I directed significant attention toward the existing system of benefits for veterans. “Some 4.7 million Americans fought in World War I. Of these, 116,000 died in service and 204,000 were wounded” (VA, 2006a, p. 7). Many felt the existing system needed revision, and this new, huge mobilization provided the impetus. Among the provisions of the War Risk Insurance Act Amendments of 1917 was the authority to establish courses for rehabilitation and vocational training for veterans with dismemberment, sight, hearing, and other permanent disabilities. (VA, 2006a, p. 7) The Vocational Rehabilitation Act of 1918 authorized the establishment of an independent agency, the Federal Board for Vocational Education. Under the new law, any honorably discharged disabled veteran of World War I was eligible for vocational rehabilitation training. Those incapable of carrying on a gainful occupation were also eligible for special maintenance allowances. (VA, 2006a, p. 7) In addition to these provisions, the War Risk Insurance Act of 1917 addressed features of the pension system, or what today is known as “disability compensation.” There was a change in emphasis from payment of a gratuity towards indemnification, and there was elimination of rank as a factor in determining the amount of compensation…. [T]he new Bureau of War Risk Insurance was instructed to set up a schedule for rating disabilities. The schedule was to represent average impairments in earning capacity caused by specific injuries or combination of injuries. In this way the individual who overcame his handicap was not penalized but encouraged to reenter the labor force, with the knowledge that his payments would not be reduced or terminated. (VA, 1971, p. 308) THE DEPRESSION YEARS The Great Depression had a staggering economic impact across America. World War I veterans, like others, were seriously affected by this huge economic downturn. After returning from the Great War, many veterans faced destitution. Congress passed the World War Adjustment Compensation Act in 1924 that authorized a bonus to World War I veterans based on the length and location of their service. “The payments were intended to bring about economic balance between the veterans—who generally received low wages in the service—and those who stayed home and benefited from wartime industry” (VA, 2006a, p. 9). However, the certificates for payment, which generally had a face value of $1,500, were in the form of an endowment policy payable 20 years from the date of issue (VA, 2006a, p. 9).
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Improving the Presumptive Disability Decision-Making Process for Veterans As the Depression worsened, veterans began calling for immediate payment of their “bonuses,” as the certificates came to be known. In March 1932, a small group of veterans from Oregon began marching to Washington, DC, to demand payment. Word of the march spread like wildfire and soon small bands of unemployed veterans from across the country began descending on the nation’s capital. (VA, 2006a, p. 9) The thousands of veteran marchers became known as the “Bonus Expeditionary Forces.” They camped wherever they could, and living conditions quickly deteriorated. President Hoover knew he had to curb the escalating violence. He gave the order for Army Chief of Staff Gen. Douglas MacArthur to forcibly remove from the city the approximately 3,500 veterans, many with their wives and children, who refused to leave. No shots were fired, but many were injured. (VA, 2006a, p. 10) Though the marchers failed to get immediate results, in 1936 Congress authorized early payment of the bonuses. By June 30, 1937, the Veterans Administration (VA) had certified as payable nearly 3.5 million applications from World War I veterans for settlement of their certificates. (VA, 2006a, p. 10) President Hoover, in his 1929 State of the Union message, proposed consolidating agencies administering veterans benefits. The following year Congress created the Veterans Administration by uniting three bureaus…. The new agency was responsible for medical services for war veterans, disability compensation and allowances for World War I veterans, life insurance, and bonus certificates and other veterans benefits. (VA, 2006a, p. 12) In March 1933, President Roosevelt persuaded Congress to pass the Economy Act. A response to the Great Depression, the measure included a repeal of all previous laws granting benefits for veterans of the Spanish-American War and all subsequent conflicts and periods of peacetime service. It also gave the president authority to authorize new veterans benefits. Roosevelt then promulgated regulations that radically reduced veterans benefits. When the president’s authority to establish benefits by executive order expired in 1935, Congress reenacted most of the laws that had been in effect earlier. (VA, 2006a, p. 12) The Board of Veterans’ Appeals was established in July 1933. It was given authority to hear appeals on benefit decisions. Members were appointed by the administrator with the approval of the President. (VA, 2006a, p. 12) Demand for hospital care grew dramatically in the Depression years. (VA, 2006a, p. 12) From 1931 to 1941, the number of VA hospitals would increase from 64 to 91, and the number of beds would rise from 33,669 to 61,849. (VA, 2006a, p. 12)
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Improving the Presumptive Disability Decision-Making Process for Veterans At first, tuberculosis predominated among the conditions treated at VA hospitals. But by the middle of the 1930s, tuberculosis patients had dropped to only 13 percent—thanks partly to VA’s own research and treatment efforts. Neuropsychiatric conditions then accounted for more than half of the patients. (VA, 2006a, pp. 12-13) WORLD WAR II With war on the horizon, Congress in 1940 created a new insurance program for servicemen and veterans. National Service Life Insurance was designed to eliminate any inequities in premiums that would have resulted if the young men had been grouped with the older World War I veterans covered by U.S. Government Life Insurance. (VA, 2006a, p. 13) The Disabled Veterans’ Rehabilitation Act of 1943 established a vocational rehabilitation program for disabled World War II veterans who served after Dec. 6, 1941. As a result of this law, VA provided 621,000 disabled World War II veterans with job training. (VA, 2006a, p. 13) In 1944, the federal government foresaw the return of millions of rvicemen and women. The need to accommodate their needs and to facilitate their readjustment to, and reentry into, civilian life resulted in the enactment of the Servicemen’s Readjustment Act, popularly known as the “GI Bill of Rights” (VA, 2006a, p. 13). The measure, signed into law by President Roosevelt, contained three key provisions that “dramatically transformed the concept of veterans benefits” (VA, 2006a, p. 13). The first benefit provided up to four years of education or training. The education package included the payment of up to $500 a school year for tuition, fees, books, and supplies, plus a monthly subsistence allowance. The second benefit provided veterans with federally guaranteed home, farm, and business loans with no down payment. This feature was designed to generate jobs in the housing industry while providing housing and assistance for veterans and their families. Veterans could apply for loans up to $2,000 with 50 percent guaranteed by the government. The third feature was unemployment compensation. (VA, 2006a, pp. 13-14) This benefit was designed to ease the unemployment market, which was making the transition to a peacetime economy. The new law provided that veterans who had served a minimum of 90 days were entitled to a weekly payment of $20 for a maximum of 52 weeks. The new benefits were popular with veterans. When the World War II GI Bill program ended in 1956, some 7.8 million had received some kind of training, and VA had guaranteed 5.9 million home loans totaling $50.1 billion. (VA, 2006a, p. 14) The large influx of 15 million World War II veterans also placed great stress on the VA medical system. Existing VA hospitals were soon filled to capacity, and there were waiting lists
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Improving the Presumptive Disability Decision-Making Process for Veterans for admission at most hospitals. “Until more VA hospitals could be opened, the Navy and Army both made beds available” (VA, 2006a, p. 15). “To handle the dramatic increase in veterans claims, VA central office staff was increased” by 30 percent and field staff for medical care and benefits increased by nearly 76 percent (VA, 2006a, p. 15). KOREAN WAR Following the outbreak of the Korean War in June 1950, Congress passed the Vocational Rehabilitation Act of 1950, which reactivated vocational rehabilitation for veterans of the new war and extended the program to peacetime veterans. The Veterans’ Readjustment Assistance Act of 1952, called the “Korean GI Bill,” provided unemployment insurance, job placement, home loans, and mustering-out benefits similar to those offered World War II veterans. (VA, 2006a, p. 16) The Korean GI Bill made several changes, however, in education benefits, reducing financial benefits generally and imposing new restrictions. In contrast to the 48 months of education allowed by the 1944 law, the Korean GI Bill permitted a maximum of 36 months. (VA, 2006a, p. 16) Because of past abuses under the World War II GI Bill program, “[t]he Korean GI Bill also did not provide tuition payments to the colleges. Instead, veterans were paid subsistence checks, which were also to cover their college expenses. The effect of the changes was that the benefit no longer completely covered the cost of the veteran’s education” (VA, 2006a, p. 16). In the late 1950s, [VA’s] Chief Medical Director William Middleton expanded VA’s research programs to address the chronic-care problems of most of its patients, including the aged. Congress, agreeing on its importance, began earmarking funds for research within the VA budget. (VA, 2006a, pp. 16-17) Following a study of pensions and resulting legislation, VA introduced a sliding scale of pension payments for non-service-connected disabilities in 1959, based on the recipient’s income, rather than a flat-rate pension. “The net assets of the veteran’s and spouse’s income were considered in determining the veteran’s level of need. The Veterans’ Pension Act of 1959 also specified that anyone already on the pension rolls as of June 30, 1960, could elect to remain under the old law” (VA, 2006a, p. 17). VIETNAM WAR During this [Vietnam War] period, more than 6 million Vietnam-era veterans were separated from military service. A major difference of Vietnam-era veterans from those of earlier wars was the larger percentage of disabled. Advances in airlift and medical treatment meant that many wounded and injured personnel survived who would have died in earlier wars. By 1972 there were 308,000 Vietnam veterans with disabilities connected to military service. (VA, 2006a, p. 18)
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Improving the Presumptive Disability Decision-Making Process for Veterans “The return within days of veterans from combat zones to civilian life also was new” and added to their difficulties in readjusting to civilian life (VA, 2006a, p. 18). To complicate matters, returning Vietnam veterans were often reluctant to seek treatment at VA medical facilities, an institutional setting they often regarded with discomfort and distrust. To help address this issue VA instituted a new program aimed specifically at the wary Vietnam veterans: the Readjustment Counseling program, or Vet Centers. These new Vet Centers were established as storefront operations located in downtown areas, away from VA Medical Centers. They were staffed with Vietnam combat veterans and trained counselors who offered a relaxed, informal setting. The program has been successful and has expanded over the last two decades. Environmental exposures also became an important issue for Vietnam veterans. Between 1962 and 1971, U.S. military forces sprayed nearly 19 million gallons of herbicides over approximately 3.6 million acres in Vietnam. The preparation known as Agent Orange accounted for approximately 11.2 million gallons of the total amount sprayed. Herbicides were used to strip the thick jungle canopy that helped conceal opposition forces, to destroy crops that enemy forces might depend upon, and to clear tall grass and bushes from around the perimeters of U.S. base camps and outlying fire support bases. Most large-scale spraying operations were conducted using airplanes and helicopters, but considerable quantities of herbicides were sprayed from boats and ground vehicles, as well as by soldiers wearing back-mounted equipment. Spraying began in 1962 and increased greatly in 1967. After a scientific report in 1969 concluded that one of the primary chemicals used in Agent Orange, namely, 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) could cause birth defects in laboratory animals, U.S. forces suspended use of this herbicide in 1970 and halted all herbicide spraying in Vietnam the next year. (IOM, 1994, p. 1) As the decade wore on, concern about possible long-term health consequences of Agent Orange and other herbicides heightened. This concern was fueled in particular by reports from growing numbers of Vietnam veterans that they had developed cancer or fathered handicapped children, which they attributed to wartime exposure to the herbicides. VA’s position was that none of the veterans’ health problems were caused by Agent Orange with the exception of chloracne. All other disability claims were routinely turned down, though in 1981 VA did begin providing free health care for those who claimed their illnesses were attributable to Agent Orange (Veterans’ Health Care, Training and Small Business Loan Act. 1981. Public Law 97-72. 97th Cong., 1st Sess.). The veterans then turned to the courts. The first lawsuit was filed in July 1978; in it the plaintiff alleged that the herbicide had caused his abdominal cancer (Shuck, 1987, p. 37). Eventually, more than 600 separate actions were filed by more than 15,000 individuals throughout the United States. These actions were ultimately consolidated in the U.S. District Court for the Eastern District of New York into one class action on behalf of 2.4 million Vietnam veterans, their wives and children, and others (Shuck, 1987, pp. 4-5, 45). In addition, there were almost 400 individual cases that were not included in the class action (Shuck, 1987, p. 4). On May 7, 1984, the class action was settled, only hours before jury selection was to begin, for $180 million, then the largest tort settlement in history (Shuck, 1987, pp. 5, 166). The individual suits were dismissed on the ground that plaintiffs could not establish specific causation due to the lack of exposure data and positive epidemiologic findings (Shuck, 1987). The lawsuits garnered enormous publicity and contributed a focus around which the Vietnam veterans could organize. Although the lawsuits failed to establish that Agent Orange was the
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Improving the Presumptive Disability Decision-Making Process for Veterans cause of diseases and birth defects from which veterans and their children suffered, Congress in 1984 took a first step in establishing service-connected presumptions for Vietnam veterans (Economic Systems Inc., 2004, p. 68; Shuck, 1987). To address this difficult issue, Congress enacted the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act in 1984 (Public Law 98-542. 98th Cong., 2d Sess.). This act “provided a presumption of service connection for the occurrence of certain diseases related to exposure to herbicides or other environmental hazards or conditions in veterans who served in Southeast Asia during the Vietnam era” (Economic Systems Inc., 2004, p. 68). It “directed the administrator of Veterans Affairs to establish guidelines and criteria for resolving claims for benefits resulting from a service-connected death or disability based on a veteran’s exposure during active duty service to … herbicides containing dioxin in Vietnam” (as well as to radiation exposure prior to July 1, 1946) (Economic Systems Inc., 2004, p. 68). The measure directed VA to determine whether any of several specified diseases should be considered service connected if they developed after a veteran’s departure from Vietnam (Economic Systems Inc., 2004, p. 68). This legislation did not resolve the issue as veterans continued to present claims for Vietnam service-related diseases, for which they received what they considered to be less than satisfactory responses. As a result of the continuing controversy, Congress passed the Agent Orange Act of 1991 (Public Law 102-4. 102d Cong., 1st Sess.). This law designated certain diseases to be service connected and resulting from exposure to dioxins and other herbicide agents during service in Vietnam during the Vietnam era. It also established a mechanism for periodic reviews of scientific evidence (by the National Academy of Sciences) concerning the association between exposure to an herbicide agent during service in Vietnam and each disease suspected to be associated with such exposure (Economic Systems Inc., 2004, p. 74). GULF WAR PERIOD The Gulf War “brought with it a number of difficult-to-diagnose conditions, syndromes, and diseases” and “[t]he presumption of service connection question became a matter of much scientific, social, and political debate” (Economic Systems Inc., 2004, p. 78). Congress addressed many of the concerns through legislation in 1994 with the Persian Gulf War Veterans’ Benefits Act (Public Law 103-446. 103d Cong., 2d Sess.). Among its provisions were requirements to implement a uniform medical evaluation protocol for returning Gulf War veterans; a comprehensive outreach program regarding available benefits; disability compensation payments for chronic disability resulting from an “undiagnosed illness” that manifested during or within a presumptive period after Gulf War service; and the establishment of a scientific review protocol similar to that in the Agent Orange Act of 1991 (Economic Systems Inc., 2004, pp. 78-79). With a high number of Service members still experiencing combat situations in Iraq and Afghanistan, these issues continue to be a concern. VA PROGRAMS AND BENEFITS TODAY The mission of VA was encapsulated in the words of President Lincoln over 140 years ago: To care for him who shall have borne the battle and for his widow and his orphan. (VA, 2006c)
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Improving the Presumptive Disability Decision-Making Process for Veterans To fulfill this pledge, VA programs are intended to provide timely, high-quality benefits and services to the 24 million living men and women who have served this country with honor in the military. Operating with outlays of over $72 billion during fiscal year (FY) 2006 and a workforce of almost 220,000 employees, VA provided medical care, benefits, social support, and lasting memorials to veterans and their dependents in recognition of veterans’ service to this nation (VA, 2006b, p. 15; VA, 2007a, sec. 2, p. 20). These services were provided through three administrations within the department: Veterans Health Administration (VHA), Veterans Benefits Administration (VBA), and the National Cemetery Administration (VA, 2007a). Through VHA, VA operates the largest direct health-care delivery system in the country, which includes 156 medical centers and more than 1,300 additional sites of care (VA, 2006c, p. 6). In this context, VA meets the health-care needs of America’s veterans by providing a broad range of primary care, specialized care, and related medical and social support services. VA focuses on providing health-care services that are uniquely related to veterans’ health or special needs. VA provided care to nearly 5.5 million unique patients enrolled in its system in FY 2006 (VA, 2006b, p. 12). For FY 2006, it handled over 60 million outpatient visits and provided care to approximately 744,000 inpatients (VA, 2007a, sec. 3B, p. 17). In FY 2008 VA expects to treat 5.8 million patients of which 263,000 will be Operation Iraqi Freedom/Operation Enduring Freedom veterans (Nicholson, 2007). To provide this comprehensive medical care VA employed nearly 200,000 people and operated with a budget of approximately $32 billion (VA, 2007a, sec. 3B, pp. 12, 18). About $350 million of this amount was spent on outpatient mental health services for veterans (VA, 2007a, sec. 3B, p. 12). Another $1.25 billion was spent on the purchase and repair of medical equipment and prosthetics (VA, 2007a, sec. 3B, p. 12). VA has developed an increasing reputation for delivering high-quality care in a cost-efficient manner and has received numerous awards. For the past 6 years VA has outranked private-sector hospitals on patient satisfaction in an annual consumer survey conducted by the National Quality Research Center at the University of Michigan. In December 2004 RAND investigators found that VA outperformed all other sectors of American health care across a spectrum of 294 measures of quality in disease prevention and treatment (VA, 2006b, p. 119). VA is the nation’s largest provider of health-care education and training for medical residents and other health-care trainees. Its education and training programs are designed to help ensure an adequate supply of clinical care providers for veterans and the nation (VA, 2007a). “VA advances medical research and development in ways that support veterans’ needs by pursuing medical research in areas that most directly address the diseases and conditions that affect veterans. Shared VA medical research findings contribute to the public good by improving the nation’s overall knowledge of disease and disability” (VA, 2007a, sec. 1, p. 13). Its research budget, composed of VA direct appropriations as well as funds from other federal appropriations and private sources, is proposed to be $1.4 billion for FY 2008 (Nicholson, 2007). VBA, with 57 regional offices and a staff of over 13,000 employees, delivers a number of programs designed to aid veterans in consequence of their military service (VBA, 2006, p. 14; VA, 2007b, sec. 5, p. 2). The largest of these is the Disability Compensation Program which provides monthly payments and ancillary benefits totaling in excess of $30.8 billion to over 3.5 million veterans, in accordance with rates specified by law, in recognition of the average potential loss of earning capacity caused by a disability, disease, or death incurred or aggravated during active military service (VBA, 2006, p. 19).
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Improving the Presumptive Disability Decision-Making Process for Veterans About 48 percent of these veterans are rated 10-20 percent disabled with an additional 25 percent rated 30-40 percent disabled (VBA, 2006, p. 21). Seriously disabled—those rated at 50 percent or more—constitute 26 percent of those in receipt of compensation benefits (VBA, 2006, p. 21). The distribution of the most frequently occurring service-connected disabilities by body system for veterans receiving compensation at the end of FY 2005 is as follows: “Muscloskeletal System” (39 percent), “Impairment of Auditory Acuity” (11 percent), “Skin” (10 percent), “Neurological Conditions” (7 percent), “Mental Disorders” (7 percent), “Cardiovascular System” (6 percent), and “Digestive System” (6 percent) (VBA, 2006, p. 28). In FY 2005, VA received nearly 800,000 claims for processing and determination (VBA, 2006, p. 26). A growing number of these claims involve complex issues resulting from posttraumatic stress disorder, environmental and infectious risks, traumatic brain injuries, complex combat-related issues, and complications arising from diabetes. This program also provides monthly payments, as specified by law, to nearly 329,000 surviving spouses, dependent children, and dependent parents in recognition of the economic loss caused by the veteran’s death during active military service or, subsequent to discharge from military service, as a result of a service-connected disability (VBA, 2006, p. 39). VA’s pension program provides monthly payments, as specified by law, to needy wartime veterans at age 65 or over or who are permanently and totally disabled from non-service-connected causes at an annual cost of over $2.6 billion (VBA, 2006, p. 42). This program also provides monthly payments, as specified by law, to about 207,000 needy surviving spouses and dependent children of deceased wartime veterans who died as a result of a disability unrelated to military service (VBA, 2006, p. 47). VA’s education program assists eligible veterans, Service members, reservists, survivors, and dependents in achieving their educational or vocational goals. VA provided educational assistance benefits totaling over $2.6 billion to approximately 500,000 individuals in FY 2005 (VBA, 2006, p. 55). The vocational rehabilitation and employment program assists veterans with service-connected disabilities to achieve functional independence in daily activities, become employable, and obtain and maintain suitable employment. Over 60,000 veterans applied for this form of benefits in FY 2005 (VBA, 2006, p. 87). VA’s housing program helps eligible veterans, active duty personnel, surviving spouses, and selected reservists purchase and retain homes. In FY 2006, VA assisted over 135,000 home buyers (VA, 2007a, sec. 6D, p. 3). VA’s insurance program provides 1.8 million veterans, 2.4 million Service members, and 3 million family members with life insurance benefits, some of which are not available from other providers—such as the commercial insurance industry—because of lost or impaired insurability resulting from military service (VA, 2007a, sec. 3A, p. 36). Insurance coverage is made in reasonable amounts and at competitive premium rates comparable to those offered by commercial companies. The program ensures a competitive, secure rate of return on investments held on behalf of the insured. The National Cemetery Administration, with a budget of about $161 million, honors veterans with final resting places in national shrines and lasting memorials that commemorate the veterans’ service to the nation (VA, 2007b, sec. 1A, p. 4). VA maintains more than 2.8 million gravesites at 121 national cemeteries and 33 other cemeterial installations. It will inter about 105,000 veterans in FY 2008 (Nicholson, 2007; VA, 2007a, sec. 3A, p. 36).
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Improving the Presumptive Disability Decision-Making Process for Veterans BASIC PRINCIPLES OF THE DISABILITY COMPENSATION PROGRAM VA’s disability compensation program provides monthly payments and ancillary benefits to veterans in recognition of the average potential loss for earning capacity caused by disability or disease incurred or aggravated during active military service. The statutory provision that entitles veterans to disability compensation is found in section 1110 of title 38, United States Code (USC) as follows: For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter …, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. (Basic Entitlement. 2005. 38 USC § 1110) “In line of duty” is defined in VA regulations as occurring “during a period of active military, naval, or air service unless such injury or disease was a result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, was the result of his or her abuse of alcohol or drugs” (Pension, Compensation, and Dependency and Indemnity Compensation. 2006. 38 CFR § 3.1[m]). For purposes of line-of-duty determinations, a Service member is regarded as being on duty continuously (i.e., around the clock, seven days a week). It is important to remember also that the disability need not have been directly “caused” by military service but only to have arisen during, or be aggravated coincident with, the period of military service. There is no time limit for filing of disability claims. A veteran may file at date of discharge or may make an initial claim decades later. Title 38 of the United States Code mandates the existence of a rating schedule for use in evaluating disability claims. This statutory authority is as follows: The VA Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide 10 grades of disability and no more, upon which payments of compensation shall be based, namely, 10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent. The VA Secretary shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred. (Authority for Schedule for Rating Disabilities. 2005. 38 USC § 1155) This rating schedule has been codified as 38 CFR, Part IV (Schedule for Rating Disabilities. 2005. 38 CFR Part 4), and it provides detailed guidelines for assessing specific disabilities and assigning evaluation levels. The schedule lists hundreds of specific disabilities, with unique di-
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Improving the Presumptive Disability Decision-Making Process for Veterans agnostic codes for each. It describes each condition and provides descriptors for assigning evaluation levels to the conditions. Veterans’ service-connected disabilities are assigned a percentage rating between 0 and 100 percent in increments of 10, with higher ratings reflecting greater severity. Veterans with disabilities rated 0 percent generally do not receive compensation for their disabilities. However, this rating can provide improved access to health care and other VA benefits. Disabilities rated 10 percent or more are compensable. The 10 percent threshold is not defined explicitly in the law, except that it must be a medical determination. Throughout much of the legislative history of disability compensation for veterans, the percentage determination is based on medical opinion without any specific reference to economic loss or indicating exactly how a given physical impairment translates into a given percentage. (Economic Systems Inc., 2004, p. 3) Although the statutory language is couched in terms of “average impairment in earning capacity” it is apparent that other factors are taken into consideration in the payment of disability benefits (Schedule for Rating Disabilities. 2005. 38 CFR Part 4). The Bradley Commission in discussing the “basic purpose” of disability compensation acknowledged that it was a “complex and difficult subject because it deals with a wide range of human factors” including “impairment of earning capacity, loss of physical integrity, shortening of life, social inconvenience, disfigurement, pain, suffering, anguish, and possibly others” (President’s Commission on Veterans’ Pensions, 1956, p. 164). Although the statute specified that percentage awards were to be based on average impairments of earning capacity, the commission observed that there was evidence that VA ratings “make allowance for shortening of life and social inconvenience resulting from disablement” (President’s Commission on Veterans’ Pensions, 1956, p. 165). It declared that “[a] balanced compensation program must do more than merely replace lost earning capacity” and concluded that the rating schedule should also make allowance for “‘loss of physical integrity,’ ‘social inadaptability’ and ‘shortened life expectancy’” (President’s Commission on Veterans’ Pensions, 1956, pp. 166, 169). VA acknowledged this in testimony before Congress in 1960 stating that although the schedule was devoted “almost exclusively to so-called economic factors such as loss of earning capacity. There is, for consideration, as we all know, the fact that in many diseases and disabilities there are so-called noneconomic losses or impairments such as shortened life expectancy, loss of physical integrity, or social inadaptability” (U.S. Congress, House of Representatives, 1970, p. 5). Two recent companion studies of VA’s disability compensation program concluded that congressional intent for program goals could include both “compensation for the average impairments of earnings capacity resulting from such injuries in civil occupations” and “compensation for reduction in quality of life due to service-connected disability” (Economic Systems Inc., 2004, p. 2). It observed the following: The legislation does not explicitly state that intent of the disability program is to compensate for reduction in quality of life due to service-connected disability. However, this intent is implicit because Congress has set forth certain presumptions of eligibility for disability compensation and higher benefit levels for certain disabling conditions such as loss of a limb that reflect humanitarian concern about quality of life. The quality-of-life
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Improving the Presumptive Disability Decision-Making Process for Veterans factor may be a more critical issue than employability for amputees given advances in medical technology and emphasis on occupations not requiring physical labor. (Economic Systems Inc., 2004, p. 2) The study also suggests that “recruitment and retention” could be included in the range of possible program goals (Economic Systems Inc., 2004, p. 2): The “[l]egislation does not explicitly state that intent of the VA disability program … is to provide incentive value for recruitment and retention” (p. 4). However, “during wartime periods, Congress has provided greater benefits or liberalized rules for eligibility, reflecting the intention of attaining sufficient recruitment and retention. Also, Congress has legislated benefits for veterans using phrases similar to ‘in gratitude of service rendered for a grateful Nation,’ indicating that benefits are provided for a variety of different reasons” (Veterans’ Disability Benefits Commission, 2005, pp. 4-5). Finally, in looking at disability compensation benefits it should also be kept in mind that “compensation for … impairment in earnings capacity … is not based on the disabled person’s individual capacity loss but only on ‘average’ capacity” (Economic Systems Inc., 2004, p. 2). Claims may be established by direct evidence that an injury or disease or its aggravation occurred at a point in time coincident to military service. Medical exams, military service records, expert opinions, and credible statements by those with knowledge of the circumstances of the claim are frequently relied upon. Claims may also be established by unrebutted presumptions that have been adopted by VA either as a result of statutory amendment or by administrative regulation. EQUIPOISE AND BURDEN OF PROOF 38 USC, Section 5107, sets forth standards for “burden of proof” and “benefit of the doubt” with respect to establishing disability benefits entitlement. Subsection 5107(b) further provides, in pertinent part, with respect to such claims that When, after consideration of all evidence … there is an approximate balance of positive and negative evidence regarding the merits of an issue material in the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. (see also 38 CFR § 3.102. Reasonable doubt) Evidence found to be in such “balance” has often been characterized in Board of Veteran Appeals decisions as being in “equipoise.” In Gilbert v. Derwinski, 1 Vet. App. 49 (1991), an early decision considering the rule, the court employed the following analogy: The “benefit of the doubt” standard is similar to the rule deeply embedded in sandlot baseball folklore that “the tie goes to the runner.” If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and again the rule has no application; if however the play is close, then the runner is called safe by operation of the rule that “the tie goes to the runner.” … Similarly, if a fair preponderance of the evidence is against a veteran’s claim, it will be denied and the “benefit of the doubt” rule has no application; if the veteran “establishes a claim by a fair preponderance of the evidence, the claim will be granted and, again, the rule has no application;
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Improving the Presumptive Disability Decision-Making Process for Veterans if however, the play is close, i.e., “there is an approximate balance of positive and negative evidence,” the veteran prevails by operation of 38 U.S.C. 3007 (b) (now 5107[b]). (VA, 2006d, p. 16470) As part of an ongoing project to “reorganize and rewrite in plain language” general provisions applicable to its compensation and pension regulations, the VA, citing Gilbert v. Derwinski, defines equipoise as follows: Equipoise means that there is an approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact, such that it is as likely as not that the fact is true. (VA, 2006d, p. 16470) REFERENCES Economic Systems Inc. 2004. VA disability compensation program: Legislative history. Washington, DC: VA Office of Policy, Planning, and Preparedness. IOM (Institute of Medicine). 1994. Health effects of herbicides used in Vietnam. Washington, DC: National Academy Press. Nicholson, R. J. 2007. Statement of the Honorable R. James Nicholson, Secretary of Veterans Affairs, for Presentation Before the House Committee on Veterans’ Affairs, February 8, 2007. http://www.va.gov/OCA/testimony/hvac/07020800.asp (accessed July 11, 2007). President’s Commission on Veterans’ Pensions. 1956. A report to the President: Veterans benefits in the United States: Findings and recommendations. Vol. 1, Parts I and II. Washington, DC: Government Printing Office. Shuck, P. 1987. Agent Orange on trial: Mass toxic disasters in the courts. Enlarged ed. Cambridge, MA: Belknap-Harvard University Press. U.S. Congress, House of Representatives. 1970. Service-connected compensation increase for veterans. Report No. 91-1166. 91st Cong., 2nd Sess. VA (Department of Veterans Affairs). 1971. Economic validity of the rating schedule. In Veterans Administration proposed revision of Schedule for Rating Disabilities. Submitted to the Committee on Veterans Affairs, U.S. Senate, 93rd Cong., 1st Sess. February 12. Senate Committee Print No. 3. Washington, DC: U.S. Government Printing Office. VA. 2006a. VA history in brief. http://www1.va.gov/opa/feature/history/docs/histbrf.pdf (accessed March 5, 2007). VA. 2006b. Strategic plan FY 2006-2011. http://www1.va.gov/op3/docs/VA_2006_2011_Strategic_Plan.pdf (accessed March 6, 2007). VA. 2006c. About VA: Mission, vision, core values, & goals. http://www.va.gov/about_va/mission.asp (accessed June 11, 2007). VA. 2006d. General provisions. Proposed Rule. March 31, 2006. Federal Register 71(62):16464-16475. VA. 2007a. Fiscal Year 2008 budget submission. Volume IV: Summary. http://www.va.gov/budget/summary/VolumeIVSummaryVolume.pdf (accessed March 6, 2007). VA. 2007b. Fiscal Year 2008 budget submission. Volume II: National Cemetery Administration, Benefits Programs, and Departmental Administration. http://www.va.gov/budget/summary/VolumeIINationalCemeteryAdministrationBenefitsProgramsandDepartmentalAdmin.pdf (accessed July 10, 2007). VBA (Veterans Benefits Administration). 2006. Annual benefits report, fiscal year 2005. Washington, DC: Department of Veterans Affairs, Under Secretary of Veterans Affairs for Benefits. http://www.vba.va.gov/bln/dmo/reports/fy2005/2005_abr.pdf (accessed March 6, 2007).
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Improving the Presumptive Disability Decision-Making Process for Veterans Veterans’ Disability Benefits Commission. 2005. Approved research questions. https://www.18889322946.ws/vetscommission/edocumentmanager/gallery/Documents/Reference_Materials/ApprovedResearchQuestions_10-14-05.pdf (accessed June 13, 2006).