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however, similar provisions had been incorporated partly in the Independent Offices Appropriation Acts for 1954 and 1955, and partly in Veterans Administration regulations.
The whole subject of outpatient dental treatment has been given very careful consideration. We are of the opinion that the statutory restriction of treatment to a one-time completion basis in noncompensable service-connected cases reflects a sound and proper evaluation of the Government's obligations in its dental program for veterans.
The bill, if enacted, would again make the Veterans' Administration responsible for providing lifetime dental treatment for noncompensable service-connected conditions with recurring episodes of treatment. This would continue to be subject to the requirement that the initial application must be made within 1 years after discharge.
It is estimated that the enacment of H.R. 1508 would require an addiional expenditure, if treatment is provided on a fee basis, approximating $153 million in the first year. The estimated cost for each of the following 4 years will range from approximately $29.5 million up to approximately $31.4 million in the fourth year.
I am unable to recommend favorable consideration of this bill by your committee.
We are advised by the Bureau of the Budget that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely,
W. J. DRIVER, Administrator.
Washington, D.C., April 23, 1965.
DEAR MR. CHAIRMAN : The following comments are submitted, as requested, on H.R. 5319, 89th Congress.
Existing law (38 U.S.C. 3104(a)) prohibits, with a limited exception the concurrent payment to any person based on his own service of more than one award of pension, compensation, or emergency officers', Regular, or Reserve retirement pay. The exception permits any person who is entitled to both retirement pay and compensation or pension to waive so much of his retirement pay as equals the compensation or pension for which he is eligible and thereafter to receive such compensation or pension in addition to the remaining portion of his retirement pay.
The subject bill, if enacted, would authorize the payment of disability compensation for any service-connected disability 30 percent or more disabling concurrently with emergency officers’, Regular or Reserve retirement pay, except that such concurrent payments would not be permitted if the two benefits are based on the same disability.
A prohibition against dual awards has been a part of the law for many years. The act of March 3, 1891 (26 Stat. 1082), prohibited the payment of pensions to persons on the atcive or retired list of the Army, Navy, or Marine Corps. If a veteran is entitled to benefits from both sources, he may of course elect the one which is greater in amount. The policy against the concurrent payment of more than one benefit is also reflected in another provision of 38 U.S.C. 3104 which provides that pension compensation, or retirement pay on account of a person's service shall not be paid for any period for which he receives active service pay, and, as noted above, this section also bars the payment of compensation for serviceconnected disabilities concurrently with pension for non-service-connected disabilities.
As noted above, the policy against concurrent payments has been relaxed to the extent of authorizing a partial waiver so that full compensation or pension can be drawn concurrently with part of the retirement pay to which a veteran is eligible. This does not involve any duplicate amounts since the total waiver cannot exceed the gross amount of the retirement pay. The principal advantage to the veteran of waiving a portion of his retirement pay and receiving an equal amount of compensation or pension lies in the fact that compensation and pension payments are tax exempt (38 U.S.C. 3101), whereas retirement pay based on length of service or attained age is not.
H.R. 5319, if enacted, would probably not affect the vast majority of retirees. The two principal reasons for military retirement are disability and length of service. Of those servicemen retired for disability, few could claim a serviceconnected disease or injury 30 percent or more disabling which had not already been taken into consideration by the service department in connection with their retirement. And, since it is generally to the financial advantage of service personnel to retire for disability rather than longevity, it is believed that not too many of those retired for longevity would be likely to have had a service-connected disability 30 percent or more disabling.
The proposal would benefit three principal classes of retirees. The first would be those persons who had a service-connected disability of the requisite degree at time of retirement but for some reason—perhaps because the service department concerned determined that the disability did not render the individual unfit to perform the duties of his grade or office were actually retired for longevity. Persons in the second class are those individuals who may hereafter become eligible to retire because of both disability and length of service. At present it is to their financial advantage to accept disability retirement for two reasons. First, the amount of disability retirement pay exceeds the amount of longevity retirement pay payable for less than 30 years' service; and second, disability retirement pay in generally exempt from taxation as income. The enactment of the subject bill would make it financially more advantageous for such a retiree to accept longevity retirement if the amount of disability compensation payable for his service-connected disabilities plus his longevity retirement pay, less the income tax payable on that retirement pay, exceeds the amount of disability retirement pay he would be eligible to receive.
The third group that would be benefited by this proposal are those individuals who are retired for either disability or longevity and who first manifest a "chronic disease” or a "tropical disease" (as those terms are defined in 38 U.S.C. 301) following their retirement and who accordingly can qualify for Veterans' Administration disability compensation under 38 U.S.C. 312 or 333. Section 312, with respect to veterans who served at least 90 days during a period of war, provides that a chronic disease (other than active tuberculosis, multiple sclerosis, and Hansen's disease) or a tropical disease becoming manifest to a degree of 10 percent or more within 1 year from the date of separation from such active service, all types of active tuberculosis and Hansen's disease becoming manifest to a degree of 10 percent or more within 3 years of the date of such separation, and multiple sclerosis becoming manifest to a degree of 10 percent or more within 7 years of the date of such separation shall, subject to rebuttal, be considered to have been incurred in or aggravated by such service. Under section 333, a 1-year tropical disease presumption is extended to veterans who served during peacetime but it requires 6 months or more active military service.
As heretofore noted, the prohibition against the concurrent payment of disability compensation and retirement pay has been a part of the law for over 70 years. This policy apparently reflects the view that the pyramiding of these benefits to a veteran would exceed the Government's obligation to him. The Veterans' Administration is not aware of any cogent reasons for departing from this policy. Accordingly, we do not believe that H.R. 5319 should be favorably considered by your committee.
Since it is not possible to identify the cases to which this bill would apply, the Veterans' Administration is unable to furnish any estimate of the cost of the proposal, if enacted.
Advice has been received from the Bureau of the Budget that there is no objection to the presentation of this report and further that this legislative proposal would not be consistent with the administration's objectives. Sincerely,
W. J. DRIVER, Administrator.
APRIL 29, 1965. Hon. JOHN W. MOCORMACK, Speaker of the House of Representatives, Washington, D.C.
DEAR MR. SPEAKER: There is transmitted herewith a draft of a bill to equalize the rates of disability compensation payable to veterans of peacetime and wartime service, with the request that it be introduced in order that it may be considered for enactment.
Under existing law the monthly rates of compensation for disability incurred in or resulting from military service during peacetime (and the amounts of additional compensation payable for dependents of veterans disabled by peacetime service) are 80 percent of those authorized for comparable wartime service. The draft bill proposes to remove this disparity and thus authorize the same rates of compensation, and amounts of additional compensation, whether the service of the veteran concerned was during wartime or peacetime.
The general pension law of July 14, 1862, provided pension (now designated compensation) for service-connected disability or death and made no distinction between service in time of war and peacetime service. The amendment of October 6, 1917, to the War Risk Insurance Act was the first law which recognized a distinction for compensation purposes between peacetime and wartime service in that it established a new compensation program for veterans of World War I. This separate compensation program was restated and continued under the World War Veterans' Act, 1924. Meanwhile peacetime veterans were eligible only for lesser compensation rates under the general pension law.
The so-called Economy Act (Public No. 2, 73d Cong., Mar. 20, 1933) repealed most of the then existing veterans' laws, including the World War Veterans' Act, 1924, and established certain broad guidelines for a new compensation program. Among such guidelines was a recognition of a distinction between wartime and peacetime service. The President was authorized to promulgate by Executive orders detailed provisions for eligibility. Under this authority Veterans Regulation 1(a) established basic rates of compensation with the peacetime rates generally 50 percent of the wartime rates. By 1939 (Public No. 257, 76th Cong.) this differential was narrowed to 75 percent, and in 1948 (Public Law 876, 80th Cong.) the peacetime rates were set at 80 percent of the wartime rates. They remain at that percentage level today.
This compensation rate differential has apparently been maintained in view of the historical policy running through several benefit programs that war veterans should be accorded preferential treatment. Such policy is also reflected in more liberal criteria for establishing service connection applicable to war veterans. (See the presumptions of sound condition upon entrance into service in 38 U.S.C. 311 and 332 and the presumptions related to certain diseases in 38 U.S.C. 312 and 333.)
Peacetime veterans are entitled, however, to receive wartime rates of compensation if the disability is found to have resulted from an injury or disease received in line of duty "as a direct result of armed conflict” or “while engaged in extrahazardous service, including such service under conditions simulating war” (38 U.S.C. 336 and 343.)
A major change in the established policy in the service-connected benefit programs was made by the Congress in 1956 following an extensive study and recommendations made by the House Select Committee on Survivor Benefits. A new program of dependency and indemnity compensation was authorized by the Servicemen's and Veterans' Survivor Benefits Act, August 1, 1956, for all service-connected deaths occurring on or after January 1, 1957, with a right of application for persons otherwise eligible for the old death compensation benefit. Under this new program for service-connected deaths, no distinction in the rates payable is made between peacetime and wartime service.
In connection with the evaluation of disability for disability compensation purposes, the law for many years has required that the Administrator of Veterans' Affairs adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. This provision (now 38 U.S.C. 355) provides that the "rating shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations."
We believe that there may well be ample justification for continuing the more liberal eligibility criteria applicable to war veterans and we do not recommend any change of such criteria. It seems quite apparent, however, that a veteran who has suffered a disability as the result of peacetime military service has the same loss of earning capacity as the veteran who suffered the identical disability (which is disabling to the same degree) during wartime service. It follows that we are unable to justify a continuance of the differential in the rates of disability compensation on any basis which is consistent with the nature and purposes of that benefit. We accordingly recommend the enactment of the enclosed draft of bill which would authorize payment in peacetime cases of the present wartime rates of disability compensation and additional compensation for dependents. There is set forth below an estimate of the number of cases that would be affected by the enactment of the draft bill during the first year and the additional cost of the proposal for that period :
It is estimated that the additional costs would increase in each of the 4 ensuing years to approximately $37.9 million during the fifth year.
Advice has been received from the Bureau of the Budget that the enactment of this proposal would be in accord with the program of the President. Sincerely,
W. J. DRIVER, Administrator.
FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, ORDER
February 3, 1965. WOOD, J.
This injury action is a suit brought under the Federal Tort Claims Act 28 U.S.C.A. 1346(b). The plaintiff seeks to recover damages for injuries which he sustained while undergoing treatment in a Veterans' Administration Hospital in Baltimore, Maryland, in 1959.
After a full and complete trial from December 14, 1964, until December 22, 1964, we find the following:
FINDINGS OF FACT 1. The plaintiff, a 29-year-old Army veteran, was found to have tuberculosis of both lungs in December, 1958, after an examination conducted at a Veterans' Administration Clinic in Philadelphia, Pennsylvania.
2. Upon the recommendation of the Veterans' Administration (VA) Mr. Christopher entered the Loch Raven Veterans' Administration Hospital, Baltimore, Maryland, on January 6, 1959.
3. On March 23, 1959, the plaintiff was operated upon for the partial removal of his right lung which procedure was successful and was followed by an uneventful recovery.
4. It was determined by the physicians at the hospital that a second operation was necessary on the plaintiff's diseased left lung. This surgical procedure was a resection of the upper lobe of the left lung and was performed on May 4, 1959.
5. A surgical team, including the Chief Surgical Resident, Edward Sharp, M.D., who was the surgeon, and Richard F. Kieffer, M.D., Head of the Surgical Service who assisted Dr. Sharp, coordinated their efforts in the operation.
6. The plaintiff's chest was opened by means of an incision extending between the fourth and fifth rib spaces on the left side beginning at a level near the nipple and extending posteriorly under the armpit and approximately to the fourth or fifth vertebra.
7. The periosteum (tissue around the bones) was then stripped from the fourth and fifth ribs, and these ribs were then disarticulated (which means that the joint between the rib and the articulating surfaces on the vertebrae was disrupted) from the transverse process of the fourth and fifth thoracic vertebrae by the use of an osteotome (surgical nippers or a chisel for dividing bone).
8. The osteotome was used to cut the ligaments which held the fourth and fifth ribs to the transverse processes of the fourth and fifth thoracic vertebrae, The transverse process is a lateral extension of bone attached to each vertebra.
9. The rib connects to the vertebra in two places. It touches the transverse process and is held to it by ligaments. It is also connected to the vertebral body itself. The connection of the head of the rib with the vertebral body had not been severed and it remained in articulation at that point.
10. After the two ribs had been disarticulated from the transverse processes, a rib-spreader was placed approximately midway into the incision and the ribs spread wide apart so that access could be gained to the chest cavity.
11. Dr. Kieffer entered the operation about the time the pleural cavity was opened, and he observed the patient's condition as being good and that the operation was proceeding normally.
12. The diseased portion of the left lung was excised, and Dr. Sharp inserted the chest tubes and removed the rib-spreader.
13. When the rib-spreader was removed constant bleeding developed in the posterior area of the incision behind the head of the fifth rib near the intervertebral foramen.
14. The intervertebral foramen in question is an opening in the bony structure of the spinal column tìrough which the nerve roots and intercostal vascular ches pass through to the spinal column. It is located at the bottom of the fifth thoracic vertebra and at the top of the sixth thoracic vertebra. The opening of the foramen measures between one-quarter and one-half of an inch. It resembles a well in that it has some depth. At the bottom of the well is the dura which is the outer covering of the spinal cord.
15. Doctor Sharp, the operating surgeon, was the only witness who actually saw the bleeding since Doctor Kieffer had left the operating room at that point of the operation.
16. Doctor Sharp testified that he could not see the point from which the blood was flowing. His testimony disclosed that it was coming from behind the head of the fifth rib. He described the bleeding as constant "** * which is different from what I would call arterial bleeding, in which you have a pulsation" (n.t. 931, 392). The head of the fifth rib is that area of the rib which connects with the spine.
17. A suture was placed circumferentially around the base of the fifth rib but this failed to control the bleeding completely.
18. In Doctor Sharp's Report of the Operation, he stated, in part, as follows:
“Oozing was noted from the posterior angle between the fourth and fifth ribs and examination revealed bleeding from above the posterior margin of the fifth rib. It was thought that the intercostal vein was bleeding and a Kitner (sic), when placed posteriorly between the fourth and fifth ribs, stopped the bleeding" (emphasis supplied). (Ex. P-3 page 2 of 4 pages.)
19. In his testimony, Doctor Sharp stated that in placing the Kittner he exerted light pressure and that he could not see the tip of the device all the time it was used.
20. A Kittner Dissector consist of two parts. The first part is a cotton ball approximately one-quarter of an inch in diameter and round consisting of packed cotton. The second part resembles a pair of pliers and is a metal clamp approximately eight inches long. The clamp is separated by a fulcrum. The length of the handle of the clamp to the fulcrum is seven inches and the distance from the fulcrum to the tip is one inch. The tip of the clamp consists of two parts which have rounded one-eighth inch tips that grip the cotton ball.
21. Doctor Kieffer testified that it was not advisable to use clamps to control bleeding from the posterior angle of the plaintiff's wound.
“A. Yes, sir. Bleeding in that area is rather inaccessible to direct instrumentation, there is not enough room; and also one worries about possible injury to the spinal cord."
“Q. Is there any reason why clamps couldn't be used to control bleeding in that area ?”
“A. For those reasons. The vessel runs closely applied to the undersurface of the rib where it is difficult to grasp it with a clamp separately from the accompanying bone; and also because of concern about the spinal cord which lies nearby, and the roots, nerve roots arising from the spinal cord.” (n.t. 332, 333) (emphasis supplied)
22. The bleeding began again and Doctor Sharp placed oxycel gauze, three inches by three inches, under pressure in the same area where the Kittner had