Hearings » Legislative Hearing on H.R. 1197, H.R. 3008, H.R. 3795, H.R. 4274, H.R. 5155, H.R. 5448, H.R. 5454, H.R. 5709, H.R. 5954, H.R. 5985, and H.R. 6032

Statement of Sidath Viranga Panangala

Analyst in Veterans Policy
Congressional Research Service, Library of Congress

Introduction

Chairman Hall, Ranking Member Lamborn, and members of the Committee, my name is Sidath Panangala, from the Congressional Research Service (CRS).  I am accompanied today by Christine Scott, Specialist in Social Policy, and Douglas Weimer, Legislative Attorney, also from CRS.  We are honored to appear before the committee.  As requested by the committee, my testimony will highlight major legislative milestones in the establishment of presumptions of service-connection for veterans’ benefits.  This is not an exhaustive list of legislation and regulations relating to the establishment of presumptions of service-connection.[1]  CRS takes no position on any legislation that is under discussion today.

Compensation for Service-Connected Disabilities

In general, a veteran is entitled to compensation for disabilities incurred in or aggravated during active military, naval or air service.[2]  Currently, there are five ways to establish that a disability is service-connected:

  1. Through direct service-connection — that is, the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred while in service in the Armed Forces (38 C.F.R. § 3.303);
  2. Through aggravation during service — that is, a preexisting injury or disease will be considered to have been aggravated while in service in the Armed Forces (38 C.F.R. §3.306);
  3. Through proximity — that is, a disability, which is proximately due to, or the result of a service-connected disease or injury which is considered to be service-connected (38.C.F.R. § 3.310). For example, a veteran developing cardiovascular disease due to a service-connected amputation of a lower limb.
  4. Through a finding, the disability was caused by medical care or vocational rehabilitation provided by the Department of Veterans Affairs (VA) — Disabilities caused by VA provided medical care or vocational rehabilitation are treated as if they are service-connected (38 U.S.C. § 1151).
  5. Through the application of statutory presumptions — that is certain diseases as established by law or regulation are considered to have been incurred in or aggravated by service in the Armed Forces even though there is no evidence of such disease during the period of service (38 C.F.R. § 3.307);

Today I will discuss the history of this fifth mechanism, the establishment of statutory presumptions. 

What is a Presumption?

In the context of VA claims adjudication, a presumption could be seen as a procedure to relieve veterans of the burden to prove that a disability or illness was caused by a specific exposure that occurred during service in the Armed Forces.  In other words, a presumption shifts the burden of proof concerning whether a disease or disability was caused or aggravated due to service, from the veteran to the VA.  Often presumptions are applied to chronic diseases or illnesses that manifest after a period of time (sometimes many years) following service, and that may also occur in individuals who have never served.  According to the VA’s Analysis of Presumptions of Service Connection:

Generally, a legal presumption is a procedural device that shifts the burden of proof by attaching certain consequences to the establishment of certain basic evidentiary facts. When the party invoking a presumption establishes the basic fact(s) giving rise to the presumption, the burden of proof shifts to the other party to prove nonexistence of the presumed fact.  A presumption, as used in the law of evidence, is a direction that if fact A (e.g., manifestation within the specified period of a disease for which a presumption of service connection is available) is established, then fact B (service connection) may be taken as established, even where there is no specific evidence proving fact B (i.e., no medical evidence of a connection between the veteran’s disease and the veteran’s military service).[3] 

Legislative History of Presumptions

The legislative history of veterans’ disease presumptions dates back to 1921 when Congress, to ease the disability decision-making process in VA disability compensation adjudications, used its authority to establish service-connection on a presumptive basis.  Given below is a synopsis of major legislation.  

1920s-1940s

The first legislation that specifically established a presumption of service-connection was the amendment of August 9, 1921 (P.L. 67-47) to the War Risk Insurance Act (P.L. 63-193).  This Act, among other things, established presumptions of service-connection for active pulmonary tuberculosis and neuropsychiatric disease (later know as psychosis) occurring within two years of separation from active duty military service.  Prior to the passage of P.L. 67-47, disability compensation for World War I veterans was payable only for a disability directly related to military service.  Broadly, the intent of this liberalization legislation was that “as the period beginning with the end of the war lengthened it became increasingly difficult to establish service-connection for some ailments particularly tuberculosis and neuropsychiatric disease.”[4]  The amendments to the War Risk Insurance Act also gave the then Veterans Bureau, authority to establish rules and regulations to carry out provisions in the Act.  This allowed the agency to promulgate regulations establishing presumption of service-connection for certain diseases.  As stated in VA’s Analysis of Presumptions of Service Connection:

Regulation No. 11 provided that chronic constitutional diseases, other than active pulmonary tuberculosis or neuropsychiatric disease, becoming manifest within one year following the date of separation from active service would be considered as incurred in service or aggravated by service unless there were affirmative evidence to the contrary or evidence establishing that some intercurrent disease or injury which is a recognized cause of the disorder was suffered between the date of separation from service and the onset of the chronic disease [5]             

The next major piece of legislation that established presumptions of service-connection was the World War Veterans Act of 1924 (P.L. 68-242) enacted on June 7, 1924.  This Act made important changes to existing laws on presumptions related to tuberculosis and mental illness.  Among other things, this Act added the following three diseases to the list of presumptive diseases: dysentery (amebic) (tropical disease added as chronic disease); paralysis agitans (now known asParkinson's disease); encephalitis lethargica.  Furthermore, this Act removed requirements that a veteran must show diagnosis by a medical examination conducted by a medical officer of the then Veterans Bureau or duly qualified physician within the presumptive period.  “This provision alone brought within the purview of the legislation thousands of veterans who [until then] had been unable to connect their disabilities with the service so as to be eligible for compensation and [medical care].” [6]  

Between the passage of the World War Veterans Act of 1924 and P.L. 80-748 several additions were made to the list of presumptive diseases through regulation and executive order.  More significantly, the chronic disease category was significantly expanded through the enactment of P.L. 80- 748 on June 24, 1948.

1950s- 1980s

With the passage of the Veterans Benefits Act of 1957 (P.L. 85-56), Congress codified the existing list of presumptions and expanded this list by incorporating various presumptions of chronic diseases and disease categories that had been established by regulation and were in effect at that time.  By the time P.L. 85-56 was enacted on June 17, 1957, there were forty chronic diseases or disease categories and seventeen tropical diseases that were presumptively service-connected.  The 1960s did not see any significant legislative or regulatory changes affecting presumptions of service-connection. 

The next major legislative change occurred with the enactment P.L. 91-376 in August 1970.  This law established a presumption of service-connection for seven categories of diseases and conditions for any veteran held as a Prisoner of War (POW) in World War II, the Korean conflict, or the Vietnam War, and who suffered from dietary deficiencies, forced labor, or inhumane treatment in violation of the terms of the Geneva Conventions of July 27, 1929, and August 12, 1949.

In August 1981, Congress passed the Former Prisoner of War Benefits Act of 1981 (P.L. 97-37).  This Act, among other things, modified the list of statutory presumptions associated with POW status and also changed the presumptive period for eligibility.  The Veterans' Compensation and Program Improvements Amendments of 1984 (P.L. 98-223); the Veterans’ Benefits Improvements and Health Care Authorization Act of 1986 (P.L. 99-576); and the Veterans’ Benefits and Services Act of 1988 (P.L.  100-322) expanded the list of diseases in former POWs for which a presumption of service-connection was made.  Prior to the passage of the Veterans’ Health Care, Training and Small Business Loan Act of 1981 (P.L. 97-72), veterans who complained of Agent Orange-related illnesses were at the lowest priority for treatment at VA medical facilities because these conditions were not considered service-connected.  P.L. 97-72 elevated Vietnam veterans’ priority status for health care at VA facilities by recognizing a veteran’s own report of exposure as sufficient proof to receive medical care unless there was evidence to the contrary.

 

After taking into consideration the “apprehension and concern among some Vietnam veterans and their families…to the alleged ill-health effects among some Vietnam veterans…to exposure to the dioxin in Agent Orange,”[7] Congress passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act of 1984 (P.L. 98-542).  The Act required the VA to develop regulations for disability compensation for Vietnam veterans exposed to Agent Orange.[8]  Veterans seeking compensation for a condition they thought to be related to herbicide exposure had to provide proof of a service-connection that established the link between the exposure and the disease onset.  P.L. 98-542 also authorized disability compensation payments to Vietnam veterans for the skin condition chloracne, which is associated with herbicide exposure.  This law also established a program to provide disability compensation to radiation-exposed veterans who participated in the U.S. atmospheric atomic tests or in the U.S. occupation of Hiroshima and Nagasaki, Japan.

In response to atomic veterans’ complaints about the difficulty of getting compensation under P.L. 98-542, Congress in 1988 enacted the Radiation-Exposed Veterans’ Compensation Act (P.L. 100-321) which established a presumption of a service connection for 13 specified types of cancer. That list was subsequently expanded, first by legislation, later through VA administrative action, to 21 cancers.[9]

1990s-2000

In 1991, the Agent Orange Act (P.L. 102-4) established for the first time a presumption of service connection for diseases associated with herbicide exposure.  Under the Agent Orange Act, veterans seeking disability compensation for diseases they thought to be associated with herbicides no longer were required to provide proof of exposure.  P.L. 102-4 authorized the VA to contract with the Institute of Medicine (IOM) of the National Academy of Sciences (NAS) to conduct a scientific review of the evidence linking certain medical conditions to herbicide exposure.  For the first time the Act established a new process establishing presumptive service-connection for illnesses related to herbicide exposure.  According to an article published in the Journal of Law and Policy: “The [IOM] process has become an essential step in ensuring that new service-connection presumptions command scientific credibility.”[10] 

The Veterans' Radiation Exposure Amendments of 1992 (P.L. 102-578) amended P.L. 100-321 by adding two more cancers to the presumptive list.  This was based on the “Biological Effects of Ionizing Radiation V” (BEIR V) report by theNational Academy of Sciences (NAS).[11]  This law also repealed the disability compensation requirement that diseases suffered by radiation-exposed veterans must be manifested within 40 years of exposure.

In November 1994, Congress enacted the Persian Gulf War Veterans' Benefits Act (P.L. 103-446), allowing the VA to pay compensation benefits to veterans for Gulf War–related disabilities caused by undiagnosed illnesses.  This Act also codified VA’s regulatory presumptions based on exposure to herbicides for these types of cancer: Hodgkin's disease, multiple myeloma, and respiratory cancers; and porphyria cutanea tarda, a metabolic disease (must occur within one year of exposure).

In 1998, Congress enacted the Persian Gulf War Veterans Act of 1998 (P. L. 105-277), and the Veterans Programs Enhancement Act of 1998, (P.L. 105-368).  Similar to the Agent Orange presumptive program, these laws mandated regular and thorough reviews of the scientific and medical literature relevant to the health of Gulf War veterans by the IOM.

The Veterans Education and Benefits Expansion Act of 2001 (P.L. 107-103) expanded the definition of “qualifying chronic disability” to include a “medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms.”[12]  Further more, the Veterans Benefits Act of 2003 (P.L. 108-183) provided a presumption of service-connection for cold weather injuries, traumatic arthritis, and certain psychiatric disabilities in former POWs, without regard to length of interment.

With passage of the National Defense Authorization Act, FY2008 (P.L.110-181), Congress established a presumption of service-connection for purposes of VA medical care for any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) if such veteran develops such disability: (1) within two years after discharge or release from the active military, naval, or air service; and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War.[13]

Institute of Medicine Study on Presumptive Disability Decision-Making 

Since an “increasing proportion of service-connected disability compensation is paid through a presumptive decision-making process,”[14] the Veterans’ Disability Benefits Commission (VBDC) in 2006, requested the IOM, to provide a framework on how future presumptions should be made based on scientific principles.[15]  In 2007, the IOM made several recommendations—which the VBDC generally endorsed—which would, among other things, create an advisory committee and a scientific review board.  The advisory committee “would consider, and give priority to the exposures and health conditions proposed for possible presumptive evaluation” while the “science review board, an independent body, would evaluate the strength of the evidence (based on causation) that links a health condition to a military exposure.”[16]  Next, the independent science review board’s report and recommendations would go to VA for its consideration and implementation.[17]

Conclusion

Since 1921, Congress has established numerous presumptions of service connection for a variety of health conditions affecting veterans.  In establishing these presumptions, Congress and others have sought to balance the dual obligations of the VA, to provide care for veterans who were harmed by their service, and to do so in a manner that is equitable, scientifically sound, and accountable.   



[1] For a detailed legislative and regulatory history of presumptions see the following: National Academy of Sciences, Institute of Medicine (IOM), Improving the Presumptive Disability Decision-Making Process for Veterans (2008); Zeglin, Donald, “Presumptions of Service Connection”, paper prepared for the Veterans’ Disability Benefits Commission (VDBC) (March, 2006); and Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection,” a report to Senate Committee on Veterans’ Affairs, December 23, 1993.  

[2] 38 U.S.C. § 1110.

[3] Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection” a report to  the Senate Committee on Veterans’ Affairs, December 23, 1993, p. i.

[4]  U.S. Congress, House Committee on Veterans Affairs, The Provision of Federal Benefits for Veterans, An Historical Analysis of Major Veterans Legislation, 1862-1954, committee print, 84th Cong., 1st sess., House Committee Print No 171, December 28, 1955 (Washington: GPO, 1955), p. 21.    

[5] Department of Veterans Affairs (VA), “Analysis of Presumptions of Service Connection,” a report to Senate Committee on Veterans’ Affairs, December 23, 1993, p. 10.

[6] U.S. Congress, House Committee on Veterans Affairs, The Provision of Federal Benefits for Veterans, An Historical Analysis of Major Veterans Legislation, 1862-1954, committee print, 84th Cong., 1st sess., House Committee Print No 171, December 28, 1955 (Washington: GPO, 1955), p. 23.  

[7] U.S. Congress, House Committee on Veterans’ Affairs, Veterans' Dioxin and Radiation Exposure Compensation Standards Act.  Report to Accompany H.R. 1961, 98th Congress, 2nd sess., H.Rept.  98-592.

[8] Between 1962 and 1971, the U.S. Air Force sprayed approximately 107 million pounds of herbicides in South Vietnam for the purpose of defoliation and crop destruction. The herbicides sprayed during the Vietnam era contained mixtures of 2,4-dichlorophenoxyacetic acid (2,4-D), 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), picloram, and cacodylic acid.  The most extensively used defoliant compound, a 50:50 combination of 2,4-D and 2,4,5-T, came to be known as "Agent Orange" because of the orange-colored band placed on each chemical storage container.  For further information see CRS Report, RL34370, Veterans Affairs: Health Care and Benefits for Veterans Exposed to Agent Orange, by Sidath Viranga Panangala. 

[9] For further information see CRS Report, RL33927, Selected Federal Compensation Programs for Physical Injury or Death, by Sarah A. Lister and C. Stephen Redhead.

[10] Brown, Mark, “The Role of Science in Department of Veterans Affairs Disability Compensation Policies for Environmental and Occupational Illnesses and Injuries,” Journal of Law and Policy, vol 13, (2005).

[11] Committee on the Biological Effects of Ionizing Radiation (BEIR), National Research Council, is part of the National Academy of Sciences. 

[12] Subsection 202 (a) of the Veterans Education and Benefits Expansion Act of 2001 (P.L. 107-103), December 27, 2001.

[13] The term "Persian Gulf War" means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law (38 U.S.C. §101 (33)).

[14] Honoring the Call to Duty: Veterans’ Disability Benefits in the 21st Century, Report of the Veterans Disability Benefits Commission, (October 2007), p. 153.  The Commission was established by the National Defense Authorization Act for FY2004 (P.L. 108-136).   

[15] Ibid. p. 17.

[16] National Academy of Sciences, the Institute of Medicine (IOM), Improving the Presumptive Disability Decision-Making Process for Veterans (2008), p. 3.

[17] Ibid. p.18.