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Improving the Presumptive Disability Decision-Making Process for Veterans Appendix E Arguments Favoring and Opposing Presumptions1 1 VA (Veterans Administration). 2006 (unpublished). Presumption of service connection. The public policy debate. Washington, DC: VA.
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions Medical uncertainty. “Question of fact.” “The proposal (by the Bradley Commission) to throw out … the presumption for service connection of certain chronic diseases—tropical diseases—was tried and it did not work. The doctors could not agree about whether the disease discovered 1 year of 2 years after separation from the service had its inception while in the service or not. The Congress became so tired of the subject that it decided they would be given a period of time of the subject that it decided they would be given a period of time in which it would be presumed that the disease had its inception while in the service.” “Last year it was determined—and I had hoped permanently—that a service-connected disability is a question of fact rather than a question of law. In other words, each individual case should and must be considered on it merits, and there is no justification for legislative dicta which, contrary to fact, provide that thousands of individual cases of sickness which commenced 4, 5, or 6 years after the termination of the war are caused by war services.” O. W. Clark, National Director of Legislation, DAV Hearings Before the House Comm. on Veterans’ Affairs, 84th Cong., 2d Sess. (1956) Veto message of President Roosevelt, Independent Offices Appropriation Bill (1935) H. R. Doc. No. 291, 73d Cong., 2d Sess. (1934) “It is the opinion of the American Legion that until American medicine has reached a point where it can determine with more than a reasonable degree of accuracy whether in fact certain types of disease did or did not have their inception during the course of a man’s service, the veteran should be entitled, in the areas of doubt … to the presumption that his disease or disability, within reasonable periods now or to be specified, was the result of his service.” Relationship to service. “The present list of ‘chronic’ diseases for which service connection is granted is one deeply rooted in the history of the claims program, but one regarding which it would be futile to contend that inclusion of a disease in the list is substantiated by any likelihood of actual incurrence in service or in any way resulting from the circumstances of service. The diseases when correctly diagnosticated, are indeed of chronic type, and their presence within a year after discharge raises a strong probability that part of the course of the disease (not necessarily an early part, unless the service was much longer than the minimum 90 days required) coincided with the ‘period of service, but the likelihood that any of their course was influenced by the facts or circumstances of service is extremely remote.” Statement of Donald R. Wilson, past National Commander, American Legion Id., 3654-55 (1957) Internal Memorandum from Assistant Administrator for Claims to Assistant Administrator for Legislation October 20, 1947
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions For the purpose of providing hospital and nursing home care to veterans exposed during service to dioxin or ionizing radiation for conditions not shown to result from a cause other than exposure under P.L. 97-72. “Although the exact cause of the disease is unknown, there is nothing in the circumstances of military service in time of war which from a medical and scientific standpoint would warrant a presumption of fact that a manifestation of the disease 3 years after discharge is in any way related to the fact or circumstances of service. In this connection, it does not appear that the disease is any more prevalent among the veteran population than the nonveteran population.” “… [U]ntil the scientific community [is] able to make a determination as to the possible cause and effect relationship of the toxic herbicides utilized as defoliants in the Republic of Vietnam during the Vietnam conflict, the Veterans’ Administration should do everything possible to provide the care to such veterans. When a doubt exists, the doubt should be resolved in favor of the veteran.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs, to Chairman, Senate Committee on Finance June 29, 1951 H.R. Rep. No. 79, 97th Cong., 1st Sess. 3 Administrative function. Inadequacy of service records and examinations. Developing presumptions of service connection: statutory or regulatory activity? “… [P]hysical examinations were hurried and, in many instances, incomplete. As a consequence men were taken into the service with physical and mental defects. The changed life and rigors of service, whether of an active fighting nature or simple employment in and around the military establishment, in many cases, aggravated these defects so that upon discharge these veterans were in need of financial relief and medical treatment.” “It is believed that extreme care should be exercised in augmenting the list of diseases to be afforded the presumption. It is the view of the Veterans’ Administration that this can best be accomplished by continuing the existing Veterans Regulation No. 1(a), part I, paragraph I(c), and administrative authority to make the medical and adjudicatory determinations. Federal Laws Relating to Veterans of Wars of the United States, S. Doc. No. 131, 72nd Congress, 1st Sess., 117 1932 “Determination governing the selection of diseases to be included under the regulation is essentially one of an involved medical and adjudicatory nature. If a list of diseases is provided by statute it is suggested that the consideration of additions … would require detailed technical considerations by the Congress which in the opinion of the Veterans’ Administration can best be handled administratively…. This statement is made in the light of experience under the War Risk Insurance Act, as amended, and the World War Veterans Act of 1924, as amended….” Letter from General Omar Bradley, Administrator of Veterans Affairs 1947
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions “Some feel that Congress should abide by its longstanding tradition that benefits should be paid only where substantive evidence is clearly available to establish that the disabling conditions existed while on active duty or are clearly related to such period of service. It has become apparent that such evidence will never be available in the cases of veterans covered under the provisions of the reported bill because the level of exposure cannot be verified.” Regarding Senate bill S. 1651, 98th Cong. 1st Sess. (1983) “VA opposed the bill, which directed VA to follow a rulemaking process that involved public participation and consultation with an advisory committee. VA held that legislative action to create presumptions could not be supported on the basis of available evidence, so it would be inappropriate to refer the matter for rulemaking. VA also stated that the procedural process defined in the bill would impede resolution of the issues involved and that the bill would create false expectations among affected veterans and their families.” H. R. Rep. No. 235, 100th Cong., 1st Sess. 4 1987 Excessive burden of proof on veteran. “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…. Letter from Harry N. Walters, Administrator, to Alan K. Simpson, Chairman, Senate Committee on Veterans’ Affairs April 10, 1984 “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.” Improved military procedures/records. “[T]he facilities and procedures of the service departments in the examination of recruits prior to their induction into service and their facilities for rendering medical care and treatment, the maintenance of records in individual cases and the furnishing of these records to the Veterans’ Administration all represent a great advancement and improvement over comparable situations as they existed during World War I.” Senator Walsh, 61 Cong. Rec. 4105 1921 Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs February 1950
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions “… [T]he question is not entirely a medical one. It is also in part a legal one. The purpose of a presumption is to free the veteran from carrying an unconscionable burden of proof in the establishment of the service-connected origin of a disease or a disability…. [T]he principle behind the granting of a presumption says to the American veteran that it would be unfair in some cases to require him to prove medically that a given disease or disability did in fact have its inception during the course of his service, or resulted directly from that service. It states in substance that, in those instances in which it would be unfair to impose such a burden upon him, he is entitled to a presumption that the disease or disability did emanate from his service. This is a rebuttable presumption…. It enables the Government, if medical knowledge is what the Bradley Commission says that it is, to rebut the presumption…. ” Advances in medical science. “… [T]he advances in medical science since World War I have facilitated the detection and diagnosis of diseases to such an extent that further extension of statutory presumptions of service connection is not believed to be indicated. ” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs February 1950 Philosophy of program. “A statutory provision which requires a finding of service connection for a disability which cannot be shown to be due to service is inconsistent with the theory of providing compensation for disability or death resulting from injury or disease incurred in line of duty in active military or naval service, and results in providing compensation for disability or death due to causes which are not in any way connected with military or naval service.” Statement of Donald R. Wilson, past National Commander, American Legion Id., 3654-55 1957 Incidence of disease. “It is very apparent to me that this wave of tuberculosis and of nervous and mental disease that has taken such a deadly hold and grip of late upon our ex-service men must have been contracted in the service. I feel, therefore, that we ought not continue this requirement of endless affidavits, necessarily involving long delay, in demonstrating the fact that their illness is of service origin. The delays resulting from this affidavit requirement have often resulted in men dying before they ever got their compensation….” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs Feb. 23, 1950 Elevates cases without merit. In opposition to a proposal to extend the presumptive period/or service connection of multiple sclerosis. Senator Walsh, 61 Cong. Rec. 4105 1921 “VA commented that singling out multiple sclerosis for a longer presumptive period would be discriminatory and could serve as a precedent for extending the presumptive period for other chronic diseases. The amendment would place ‘cases without merit, from the standpoint of service connection’ on a par with cases involving conditions medically proven to be service connected.” Letter from Carl R. Gray, Jr., Administrator of Veterans Affairs June 29, 1951
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions Difficult/delayed Diagnoses. Provisions are adequate without presumptions. “[I]t is frequently true that tuberculosis is an active process, and yet the person afflicted with it does not have knowledge of the fact that he has tuberculosis. As a matter of fact, most tubercular patients think: that they have something else or think: they are not afflicted with tuberculosis.” “There is otherwise in the law sufficient protection for the veteran to establish service connection of any and all diseases. Accepted medical principles can reasonably and accurately establish the onset of a disease and the disability process. Where there is reasonable doubt, the law provides for the doubt to be resolved in favor of the veteran…. Senator Robinson, 61 Cong. Rec. 4105 1921 “It is also recommended that this 5-year presumption should not only extend to neuropsychiatric and tubercular disease, but also to other internal [dis]orders which might be placed in like category, such as heart trouble, cancer, diabetes, sleeping sickness, etc. Some of these are even very difficult to ascertain or even see by means of X rays. It is hard to determine just when they did commence. Take the instance of a cancer, it is the general presumption that it must be existent in a small state at least a year before it is found, therefore, it is urged that these diseases be included in the 5-year presumption.” “With respect to chronic and tropical diseases, psychoses, and multiple sclerosis, the physicians surveyed were in general agreement that service-connection should be determined in accordance with sound medical principles, and not by fiat. As to tuberculosis in particular, modern methods of diagnosis have made rapid strides since enactment of the original presumption for this disease 35 years ago. The presumptive period of 4 years is not in accord with present-day accepted medical principles.” President’s Commission on Veterans’ Pensions (the Bradley Commission), Veterans’ Benefits in the United States 1957 Edwin S. Bettelheim, VFW, in letter to Special Committee of Senate Investigations November 5, 1923 With regard to additional presumptions specific to former POWs. According to a Senate report, only medical specialists, primarily neurologists, were likely to diagnose the disease (MS) in its early stages. The average person “would not be inclined to consult a neurologist for the original symptoms.” VA opposed extension of the presumptive period on the grounds that it lacked a sound medical basis. “The VA position was that the conditions under consideration (peripheral neuropathy; irritable bowel syndrome; and duodenal and peptic ulcers) would ordinarily manifest themselves and require treatment upon repatriation or shortly thereafter. Under these circumstances the veteran would be entitled to direct rather than presumptive service connection. Moreover, VA pointed out that the conditions at issue did not lend themselves to presumption. Irritable bowel syndrome, for example, was described as a functional disorder of unknown etiology and pathogenesis.” S. Rep. No. 660, 86 Cong., 1st Sess. 1959 From Statement of R. J. Vogel, Chief Benefits Director VA Compensation and Other Service-Connected Benefits: Hearing Before the Senate Committee on Veterans’ Affairs 100th Congress, 1st Sess. 1987
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Arguments Opposing Presumptions “[P]resumptions are based on the need to ensure that diseases and disabilities incurred in or aggravated during service are, in fact, determined to be service connected. This need arises most clearly in the cases of diseases that have a latency period of varying length causing early manifestations to be easily overlooked or misdiagnosed or diseases that are otherwise difficult to diagnose. Qualifying criteria excessively liberal. “The bill makes no distinction as to the length, or type of service or as to the various diseases. Certain diseases, particularly cardiovascular-renal disease, endocrinopathies, organic diseases of the central nervous system, and the psychoses, reflect a multitude of etiologies, some of which, when analyzed are not even remotely affected by any stress or strain of service. Under the terms of this bill, if enacted into law, a veteran with only 1 day active service in World War II and whose disease was first detected 5 years less 1 day from termination of his active service … might very well obtain presumptive, service connection….” “SLE is such a disease…. Although the disease may start acutely, the course is usually chronic and irregular with periods of activity alternating with periods of remission, thereby making diagnosis very difficult and the manifestations quite diverse … SLE is instigated by a combination of genetic predisposition and environmental factors. Current data stress the importance of various environmental factors as accelerating or causal elements to a greater degree than previously had been assumed. Accordingly, factors present during the veteran’s service may trigger onset of the disease and yet not appear on the veteran’s service record…. ” Letter from Frank T. Hines, Administrator to John E. Rankin, Chairman, House Committee on Veterans’ Legislation Aug. 9, 1945 S. Rep. No. 215, 100th Cong., 1st Sess. 73 1987 Social benefits. Regarding extension of the presumptive period for active pulmonary tuberculosis from one year to three years after separation provided in Act of June 23, 1950. Extension of the presumption was “fully justified, in view of the nature of this particular chronic disease…. The entitlement to compensation and preference in hospitalization generally resulting will lessen the need of veterans to engage in labor injurious to their health, encourage them to take proper measures for recovery, and thus result in improving the health of the Nation generally.” The report also noted that the World War Veterans’ Act of 1924 provided a longer presumptive period for active tuberculosis in World I veterans. S. Rep. No. 1745, 81st Congress, 2d Sess. 1950
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions The Act of October 30, 1951, provided a presumption of service connection for active psychosis developing within two years of separation. This presumption was enacted for treatment purposes only. Disability compensation would not be paid unless the condition were found directly service connected or arose within the one-year presumptive period provided for chronic diseases generally. At the time there were an estimated 9,000 World War II veterans awaiting hospitalization for nonservice-connected psychosis. The Senate Committee on Finance noted that psychosis “is not only an individual problem but involves broad social aspects as well.” In view of this and other considerations, the Committee thought it important to provide priority care at VA facilities. S. Rep. No. 749, 82d Cong., 2d Sess. 1952 Enforce Congress ’s view. “[T]he reason we passed [the presumption statute] was because Congress did not agree with many of the medical findings [of VA doctors]…. Many doctors have [refused to service connect disabilities] … where nearly everyone would agree, [the veteran] should be given the benefit of the doubt…. The only way we can force proper administration is by setting up a presumptive right by law…. Otherwise they could disagree with us.” Olin E. Teague, Chairman, House Committee on Veterans’ Affairs Hearings, 85th Cong., 1st Sess. 942 1957
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Improving the Presumptive Disability Decision-Making Process for Veterans Arguments Favoring Presumptions Association with risk factors. Since the amount of exposure of the “radiation-exposed veteran”, as defined in the reported bill, is less than certain, the Committee has deliberately ignored the issue of level of exposure and has concentrated instead on the likelihood of relationship of disease entities to radiation exposure. The proposed legislation (later enacted as P.L. 100-321) includes those malignancies considered most likely to be related to ionizing radiation exposure. H. R. Rep. No. 235, 100th Cong., 1st Sess. 4 1987 Promote health. Regarding extension of the presumptive period for active pulmonary tuberculosis from one year to three years after separation provided in Act of June 23, 1950. Extension of the presumption was “fully justified, in view of the nature of this particular chronic disease…. The entitlement to compensation and preference in hospitalization generally resulting will lessen the need of veterans to engage in labor injurious to their health, encourage them to take proper measures for recovery, and thus result in improving the health of the Nation generally.” The report also noted that the World War Veterans’ Act of 1924 provided a longer presumptive period for active tuberculosis in World I veterans. Senate Report No. 1745, 81st Congress, Second Session 1950
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