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Washington, D.C., August 29, 1969.
DEAR MR. CHAIRMAN: We are pleased to respond to your request for a report on H.R. 10913, 91st Congress.
The purpose of the first section of the bill is to authorize payment of service-connected dependency and indemnity compensation to the widow, children, and parents of a veteran who died of a non-serviceconnected cause but was at the time of death suffering from a serviceconnected permanent and total disability. An alternate dependency and indemnity compensation rate for widows would be authorized by section 2 of the bill.
Non-service-connected death pension based upon need is payable by the Veterans’ Administration to qualified widows and children of war veterans. In cases of service-connected deaths, dependency and indemnity compensation is payable to widows and children of veterans of war or peacetime service without regard to need and at higher rates than are generally applicable to pension in non-service-connected cases. Death pension is not payable to parents, but they may qualify for dependency and indemnity compensation for a service-connected death on the basis of income.
Where service-connected disability is found to be the principal or contributory cause of death, such death is considered to be service connected. These determinations are made on a very liberal basis. For example, there are disabilities which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Even though such disabilities are non-serviceconnected and the primary cause of death, consideration is given as to whether the coexisting service-connected conditions were of such severity as to have a material influence in accelerating death. Where death has been so accelerated it will be considered service connected.
Under the provisions of the first section of H.R. 10913, deaths would be conclusively presumed service connected if, at the time of the veteran's death, he was suffering from a service-connected disability permanently and totally disabling. The proposal would thus place the survivors of certain veterans who die of a non-serviceconnected cause on a parity with the survivors of veterans who die of an actually service-connected cause. This would be so even in a case where death was clearly accidental. In the cases of war service veterans, the bill would have the liberalizing effect of providing (a) greater benefits for widows and children with no requirement as to need; and (b) basic eligibility of parents for benefits where none
now exists. In the cases of veterans of peacetime service, the bill would provide basic eligibility for widows, children, and parents, for monetary death benefits where none now exists.
By presuming, contrary to the evidence, service connection as to cause of death in cases covered by H.R. 10913, enactment of the bill would constitute a major departure from the policy of the Congress in maintaining separate systems of monetary benefits for deaths due to service and those not due to service. Its enactment would be tantamount to superimposing on the present pension program new nonservice-connected death benefits equivalent to the present serviceconnected benefits, and would result in new and highly discriminatory benefits for surviving dependents of certain disabled veterans.
The rate of dependency and indemnity compensation payable to widows under the provisions of section 411(a) of title 38, United States Code, is geared to basic pay for active military duty at current rates. A widow is paid at a monthly rate equal to a constant factor of $120 plus 12 percent of the basic pay of her deceased husband. Section 2 of the bill would authorize an alternate rate and permit the widow to receive whichever is the greater. The alternate rate for a widow would be $120 plus 12 percent of the amount of disability compensation her husband would have received, but for his death, under chapter 11, title 38, United States Code, for the month in which he died.
Due to the lack of necessary data, we are unable to estimate the cost of the bill, if enacted.
With respect to the first section of this proposal, the Veterans' Administration believes that existing law and regulations provide very liberal and equitable conditions for determining that death is service connected. Moreover, there is no justification for presuming a death to be service connected when the evidence does not support such a finding. For these reasons, and in view of the discriminatory and precedential features of the first section of H.R. 10913, I recommend that this section be not favorably considered.
With respect to section 2 of the bill, however, I wish to point out that the dependency and indemnity compensation program is under continuing study. Our review thus far has revealed certain potential problem areas, including the rates of dependency and indemnity compensation payable to widows. We have not completed our analysis to the point of reaching a decision on a supportable comprehensive approach for remedial action.
It is accordingly recommended that the committee defer consideration of section 2 of the bill pending completion of our review of the dependency and indemnity compensation program.
The Bureau of the Budget advises that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely,
FRED B. RHODES,
(For and in the absence of Donald E. Johnson, Administrator).
Washington, D.C., August 29, 1969.
DEAR MR. CHAIRMAN: The following comments are furnished, as requested, on H.R. 8451, 91st Congress.
The bill proposes to extend to otherwise eligible veterans who are receiving regularly scheduled hemodialysis "which is medically indicated,” the housebound rate of either service-connected disability compensation or non-service-connected disability pension payable under current law or under prior pension law, whichever is appropriate. It would make these rates payable for a period of 2 years after hemodialysis is discontinued. The bill would also authorize the Administrator to furnish hemodialysis equipment, if medically indicated, to any veteran being paid the housebound rate of disability compensation or either of the rates of disability pension provided for those who are housebound.
In connection with the payment of disability compensation, 38 U.S.C. 355 requires the Administrator of Veterans' Affairs to adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combinations of injuries. The law provides that the ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The evaluations range by 10's from zero percent to 100 percent and are assigned on the basis of findings elicited during physical examination. Compensation is then awarded in the amount fixed by law for the degree of disablement shown to exist. Currently, monthly wartime rates of compensation payable for service-connected disabilities range from $23 for a 10-percent disability to $400 for a 100-percent disability. The mentioned schedule for rating disabilities provides a rating of 100 percent for a kidney condition with pathology of such severity as to medically require hemodialysis.
Subsection 314(s) of title 38, United States Code, provides that if a veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more or, by reason of his service-connected disability or disabilities is permanently househound, then the monthly compensation will be $450". The subsection states that the requirement of "permanently housebound” will be considered to have been met when the veteran is substantially confined to his house (ward or clinical area, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain thoughout his lifetime.
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The current disability pension program provides for monthly payments on a graduated scale, with specific maximum income limitations of $3,200 and $2,000 for a veteran with and without dependents, respectively. For a veteran with dependents, the monthly payments range from $130 to $34, and for a veteran without dependents from $110 to $29. Additionally, the law provides that if the veteran has a disability rated as permanent and total, and has additional disability or disabilities independently ratable at 60 percent or more, or by reason of his disability or disabilities, is permanently housebound, the monthly basic rate payable shall be increased by $10.
The prior pension law provides for a monthly rate of $66.15 which is increased to $78.75 after continuous receipt of pension for 10 years or upon attainment of age 65, with specific income limitations of $2,900 and $1,600 for a veteran with and without a dependent respectively. Additionally, as provided by section 110 of Public Law 90-77, a monthly rate of $100 in lieu of the pension otherwise payable is payable to him if he is permanently housebound, or meets the disability criteria set forth in the preceding paragraph.
The question of whether a disability actually results in the veteran being housebound is one of fact which may be determined by evidence reflected in official physical examination or hospital reports, statements from persons who know of the facts, or evidence developed by field examination, social service survey, or other methods. The Veterans' Administration has consistently held that occasional, or even daily, brief excursions from the house or hospital ward for therapeutic purposes will not preclude a finding that the individual concerned is “housebound."
The Veterans' Administration schedule for rating disabilities arrives at the average impairment resulting from specific disabilities by taking into account those persons to whom a relatively minor disability is overwhelming as well as those who can successfully overcome a handicap. There will be some individuals who can overcome the handicap of a disability requiring regular hemodialysis and make some adjustments in their confinement while not receiving treatment, while others may not be able to make any adjustment whatsoever.
We know that, as the result of individual factual determinations, the housebound rates of compensation and pension have been authorized for a substantial number of veterans who are receiving regularly scheduled hemodialysis which is medically indicated. Nevertheless, with respect to those veterans who, while they are receiving required hemodialysis, are not confined to their homes, we are unable to justify the enactment of legislation which would require payment to them of the housebound rate of benefits, thus equating them with those individuals who are, in fact, housebound.
Moreover, under H.R. 8451, the housebound rate would continue for a period of 2 years after hemodialysis has been discontinued. Under current medical knowledge and skills, the discontinuance of required hemodialysis is likely only in cases involving the successful transplantation of a kidney. Any veteran who has received a transplanted kidney would require hospitalization for a considerable period and convalescence for a rather lengthy period thereafter. A veteran being paid disability compensation would, in accordance with the Veterans' Administration's schedule for rating disabilities, be rated as totally disabled during those periods. Moreover, if he is, in fact, housebound, he
will be paid the housebound rate of compensation or pension even though the hemodialysis has been discontinued. However, once the individual has undergone a kidney transplantation and the transplanted kidney is functioning, he has no further need for hemodialysis. İt clearly follows, we believe, that it would be improper to require the payment of the increased rate of compensation or pension predicated on a need for hemodialysis during any period of time after the veteran's need for that treatment has ended.
"Regularly scheduled” hemodialysis may also be used in cases of acute, potentially reversible renal failure to gain time for healing the acute lesion or to reverse an acute exacerbation of a chronic renal disease. While hemodialysis in such cases is "medically indicated," it is generally necessary for only a limited period of time. Even though this type of hemodialysis (which may be needed for as little as 1 week) may meet the bill's criteria, it seems clear that payment of the housebound rate for 2 years thereafter would be completely unjustified.
Section 3 of H.R. 8451 proposes to authorize the Administrator to furnish hemodialysis equipment, if medically indicated, to any veteran who is being paid the housebound rate of disability compensation or one of the rates of pension provided for those who are housebound.
Currently, any veteran who is determined to need regularly scheduled hemodialysis, which is medically indicated for a service-connected disability, may be provided with an appropriate home dialysis unit under the provisions of 38 U.S.C. 612(a) when, in the opinion of Veterans' Administration medical authorities, his condition is such that he no longer requires active care in a Veterans Administration facility. The mentioned subsection 612(a) authorizes the Administrator to "furnish such medical services as he finds to be reasonably necessary to any veteran for a service-connected disability.”
Also, in accordance with the provisions of 38 U.S.C. 612(f) (2), the Veterans' Administration furnishes and maintains home hemodialysis units for certain veterans suffering from non-service-connected kidney disease. That subsection authorizes the Administrator to furnish medical services for a non-service-connected disability where the veteran has been granted hospital care and outpatient care is "reasonably necessary to complete treatment incident so such hospital care." Customarily, this authority is exercised by providing "followup” treatment at the hospital clinic, but if home treatment is more feasible, it can legally be provided. If the posthospital treatment is continued for a year and involves a veteran who is receiving increased compensation or pension based on the need for regular aid and attendance and the disease involved is one of six specified in 38 U.S.C. 612(g), that subsection provides that necessary outpatient treatment may be continued on a permanent basis. "Cardiovascular-renal” disease is one of the six conditions listed.
Further, existing law (38 U.S.C. 617) authorizes the Administrator to furnish "any type of therapeutic or rehabilitative device” to veterans who are receiving one of the higher statutory rates of disability compensation provided in 38 U.S.C. 314(1)-(p)-or the corresponding peacetime rates--or non-service-connected pension under the current pension program (38 U.S.C. 15) by reason of being in need of regular aid and attendance. This statutory provision would permit us to issue home hemodialysis equipment to those veterans who meet the mentioned criteria.