Page images
PDF
EPUB

veteran would exceed the Government's obligation to him. 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 United States Code 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 service-connected disabilities concurrently with pension for non-service-connected disabilities.

The proposal, if enacted, would benefit three small groups 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. Under certain conditions, some of these individuals would benefit financially if the bill is enacted. The third group consists of 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 United States Code 312 or 333, discussed above.

The Veterans' Administration is not aware of any cogent reasons for departing from the longstanding prohibition against the concurrent payment of these benefits. Hence, we do not believe that H.R. 5319 should be favorably considered by your committee.

We are unable to furnish any estimate of the cost of the proposal, if enacted.

H.R. 230. According to its title, this bill proposes to establish a "stronger presumption of soundness under certain conditions in wartime cases.” It would amend 38 United States Code 311 to provide that any disability diagnosed during a period of war after continuous service of 90 days shall be presumed to have been incurred in military service unless it is established by "affirmative evidence” that the disability existed prior to enlistment and was not aggravated beyond the normal progress of the disease.

Section 311 now provides that for the purposes of determining basic entitlement to wartime disability compensation

every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service."

The Veterans' Administration has interpreted the “clear and unmistakable evidence” of preservice origin of the injury or disease necessary to overcome the presumption of soundness as meaning “obvious and manifest" evidence. To be clear and unmistakable, the evidence must be consonant with accepted medical principles and medical judgment.

Fundamentally, service connection means establishment of the incurrence of the injury or disease or aggravation of a preexisting injury or disease resulting in disability coincidentally with the period of active military, naval, or air service. In determining whether a disability appearing during wartime service is service connected, the mentioned presumption of sound condition at the time of entry into service is applied. When, after careful consideration of all procurable evidence in the case, a reasonable doubt arises regarding service connection, such doubt is resolved in favor of the veteran.

H.R. 230 states that it would provide a "stronger” presumption of soundness. If it is enacted, the presumption could be rebutted, with respect to disabilities not noted at the time a man enters service but which are detected within the first 90 days, by clear and unmistakable evidence which demonstrates preservice origin, without aggravation (existing law). But if the disabilities are first discovered thereafter, they could be deemed not attributable to service only if it were established by affirmative evidence that they had a preservice origin and were not aggravated beyond normal progress of the condition. The "affirmative evidence" it would require appear to demand documentary evidence of an established diagnosis prior to service with clear clinical and laboratory find

66* * *

ings sufficient for rating purposes. It would apparently preclude the use of medical judgment and sound medical principles in rebutting the presumption of soundness.

There are many disabilities which are susceptible of concealment for 90 days; in fact, virtually any disability that is not readily apparent to the eyes. If the stringent standard of proof the bill proposes is enacted, it can be expected that claimants will elect, quite naturally, to remain silent rather than to furnish the Government avenues to pursue in an attempt to develop "affirmative evidence."

In order to rebut the presumption of soundness which H.R. 230 proposes, the Government would have to obtain an authoritative diagnosis and description of a preservice disability made at a date nearly coinciding with the date on which the claimant entered service. The practical effect of the proposal would be to create an irrebuttable presumption of soundness, except as to disabilities noted at the time of entry into service or disabilities detected within the first 90 days. It follows that the bill would place the Government in the position of paying compensation for disabilities in fact unrelated to service.

The Veterans' Administration has no valid basis for determining the number of cases that would be affected or the probable cost effect of H.R. 230, if enacted.

In the light of the existing liberal provisions of law (including the presumption of soundness of 38 U.S.C. 311) and regulations on the subject of service connection of wartime disabilities, we do not believe there is any sound basis for establishing, as proposed by H.R. 230, what in effect would amount, in practically all cases, to a conclusive presumption of soundness. Accordingly, the Veterans' Administration recommends that the bill be not favorably considered by your committee.

H.R. 1141 proposes to provide a permanent rating of 50 percent for veterans who have suffered from active service-connected tuberculosis for 10 or more years.

Under the Schedule for Rating Disabilities, which the Veterans' Administration utilizes in determining the degree of a given veteran's loss of earning capacity, active tuberculosis—whether minimal, moderately advanced, or far advanced—is rated as 100 percent disabling, which rating continues during the period of activity and for 2 years thereafter. Upon the expiration of this period, if the rating board is of the opinion that the arrest or inactivity of the disease cannot be maintained under the ordinary conditions of life, the 100-percent evaluation may be continued as an extraschedular rating.

Following the 2-year period of inactivity, if the veteran's condition does not justify a continuation of a 100-percent evaluation, 38 U.S.C. 356 requires a rating of 50 percent for the succeeding 4 years without the necessity of establishing any physical or economic impairment. Following this period, the law requires a 30-percent rating for a further period of 5 years. If the veteran had far advanced lesions, this 30-percent rating is permanent, and if there had been moderately advanced lesions and there is continued disability, a 20-percent permanent rating is assigned after the 5-year period. Otherwise, the final evaluation is zero percent. Another provision of law (38 U.S.C. 314(q)) provides a minimum disability compensation award of $67 monthly for war veterans whose active tuberculosis disease has reached a condition of complete arrest. Since this rate exceeds the $58 monthly rate of wartime compensation payable for 30percent disability, the $67 minimum rate is paid to veterans in lieu thereof following the 4-year period during which the arrested tuberculosis is rated as 50 percent disabling. This $67 award continues for life.

H.R. 1141 would require a permanent rating of 50 percent, and payment of disability compensation based on such evaluation (currently $107 monthly, at wartime rates) for any veteran who has suffered from active tuberculosis for a period of 10 years, even though the disease has reached a state of complete arrest. As a practical matter, in view of the advances made in medical technology, it is highly unlikely today that tuberculosis would remain active for a period of 10 years. In almost all cases, application of modern medicines and techniques would effect arrest in a much shorter period of time. It follows that this bill, in general, would benefit a relatively few veterans who incurred tuberculosis prior to the advent of present-day treatment of that disease.

From a medical standpoint, impairment due to tuberculosis can be determined only by a periodic evaluation of the individual's condition. It does not follow that because a person has had active tuberculosis for 10 or more years he will thereafter remain 50 percent or more incapacitated. The Veterans' Administration schedule for rating disabilities follows the requirements of 38 U.S.C. 355 that ratings be based, as far as practicable, upon the average impairment of earning capacity resulting from such injuries in civil occupations. The veteran with inactive tuberculosis is evaluated on this basis, or in accordance with evaluations presently contained in the law, discussed above, if they provide a higher evaluation. The bill would compensate veterans beyond their true economic impairment and would be discriminatory as to other groups whose disabilities are rated in accordance with actual economic impairment. We believe that the graduated reduction of disability ratings and the $67 minimum award provided under existing law quite adequately compensate veterans with inactive tuberculosis for any impairment it may cause in their earning capacity.

46-011-65--10

H.R. 3805 proposes that any veteran who has suffered deafness in one ear as a result of service-connected disability and deafness of the other ear as the result of non-service-connected disability not the result of his own willful misconduct, shall be entitled to the disability compensation that would be payable if the deafness of both ears were service connected.

Under chapter 11 of title 38, United States Code, disability compensation is payable 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, or for aggravation of a preexisting injury suffered or disease contracted in line of duty” in military service. In cases involving aggravation of a disability that preexisted service the rating reflects only the extent of the aggravation. In practice, the full disability is evaluated and from this is deducted, in those cases in which it is ascertainable, the degree of the disability existing at the time of entrance into service as determined in accordance with the Veterans' Administration schedule for rating disabilities. There is one exception to this. No deduction is made when the full disability is 100 percent, or totally disabling because, whatever the extent of the inservice aggravation, it was this aggravation which produced the total disability. Thus, a veteran entering service with blindness of one eye who suffers blindness of the other eye as a result of service is compensated for total disability. The same is true of a veteran entering service with the loss or loss of use of one kidney who suffers therein such severe impairment of the other kidney that total disability was produced. This principle is applicable with respect to any disability which, bilaterally, can result in total disability.

Some time ago the Veterans' Administration became aware that this principle gave rise to an anomalous situation. We noted two types of cases involving a totally disabling, irreversible condition that were alike in fact (differing only in the order in which events happened) but which were compensated in a vastly different manner. We found a number of cases in which a veteran suffered blindness of one eye in service and then, following service, was blinded in the other eye. These veterans were as totally disabled as those whose service-incurred blindness of one eye was imposed on a preservice blindness of the other eye and, like them, these veterans would not have been so disabled for the serviceconnected disability. Moreover, in both cases the condition is not subject to improvement or functional restoration by means of prosthesis. However, under our rating schedule these veterans could be rated as only 30- or 40-percent disabled.

In the 87th Congress, H.R. 3728 proposed to amend the law to require the payment of compensation for bilateral blindness in the type of case just mentioned. While recognizing the unfortunate situation that gave rise to this proposal, we were also aware that any attempt to correct it would necessarily involve treating as service-connected conditions which, in fact, had no relationship to the individual's military service conditions that might arise many years after service and from completely unrelated causes. We concluded, therefore, that while relief might be justified in certain cases fitting this pattern, it would be necessary to rather strictly circumscribe those to be covered by this very broad authority. We decided that the cases should be those in which the disability is totally disabling; of a catastrophic nature; and not subject to alleviation or functional restoration through prosthesis.

In the course of preparing our report on this bill, we considered a number of different disabilities of paired members. Clearly the disability of bilateral blindness just discussed and of bilateral kidney involvement (i.e. where there had been a loss or loss of use of one kidney in service with a postservice serious involvement of the other kidney producing total disability) met the criteria established, and in our report to your committee we endorsed the bill and recommended that it be broadened to include cases of bilateral kidney involvement. There were other conditions, however, that did not have the characteristics of the eye and kidney cases and they were not included in our recommendation. For example, the loss of both testicles does not produce total disability; paired limbs can have some function restored to them by prosthetic applicanes; and complete deafness produces only an 80-percent average impairment in earning capacity in civilian occupations and is, moreover, frequently materially remedied with prosthetic appliances. H.R. 3728, amended to incorporate our recommendation, was enacted, and added section 360 to title 38, United States Code.

For the same reasons that caused us to exclude the disability of deafness from our recommendations with respect to the 87th Congress bill, the Veterans' Administration does not believe that enactment of H.R. 3805 would be justified. Total deafness, by comparison with blindness, is neither so overwhelming in its impact on the individual nor so disabling from the standpoint of impairment of earning capacity. Those afflicted retain a substantial advantage over the blind in civilian employment. The deaf also have greater hope for prosthetic assistance.

Data are not available to permit identification of the cases that might benefit from the proposal. Hence, we are unable to furnish any estimate of the cost of H.R. 3805, if enacted. We believe, however, that the number of cases and the cost involved would not be significant.

The Veterans' Administration recommends that H.R. 3805 be not favorably considered by your committee.

H.R. 5330: Although the language of the bill is not entirely clear, the bill apparently proposes to authorize payment of disability compensation (1) at the maximum rate of $525 monthly for a veteran of wartime service who has incurred service-connected total deafness or total blindness in combination, respectively, with total blindness or total deafness from any cause other than his own willful misconduct, and (2) at a new rate of $430 monthly for a veteran who has incurred service-connected total blindness and suffers an impairment of his hearing from any cause but his own willful misconduct, which is independently ratable as 60 percent or more disabling. Peacetime veterans similarly disabled would be entitled to receive increased compensation benefits of $420 and $344 monthly, respectively.

Under existing law, a war veteran, who is blind in both eyes with 5/200 visual acuity or less, is compensated at $340 per month, and a war veteran, who, as the result of his service-connected disabilities, has suffered total deafness in combination with total blindness with 5/200 visual acuity or less, is paid compensation of $525 per month. H.R. 5320, if enacted, would authorize this same rate where only one of the two conditions resulted from the veteran's military service. In accordance with Veterans' Administration regulatory provisions, if a veteran who is bilaterally blind also has a service-connected hearing defect independently ratable at 60 percent the monthly rate of compensation is $365. The bill would increase this rate to $430 monthly and would pay that amount whether or not the hearing defect is service connected.

Under chapter 11 of title 38, United States Code, disability compensation is payable 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 military service. None of the provisions of section 314 permit the combination of non-service-connected disabilities with service-connected disabilities in determining the amount of disability compensation payable under the section.

The only provision of law which authorizes consideration of non-service-connected conditions for compensation purposes is 38 U.S.C. 360. Under that section, a veteran who has suffered (1) service-connected blindness of one eye and non-service-connected blindness of the other eye, or (2) the service-connected loss or loss of use of one kidney with non-service-connected involvement of the other kidney such as to cause total disability is compensated at the rate payable as if his blindness of both eyes or such bilateral kidney involvement were the result of service-connected disability. The considerations which justified the enactment of section 360 are not controlling as regards the current bill. Section 360 involves a single disability of paired organs and is not analogous to the combining of service-connected disabilities with unpaired—and unrelatednon-service-connected disabilities.

In the area of veterans' benefits, the primary responsibility of the Government has always been to furnish care and assistance to veterans and the dependents and survivors of veterans who are disabled by or die from service-connected disabilities. The standards, rules, and evaluations covering service-connected disabilities were developed through a long process of experience. The combining of non-service-connected conditions with unrelated service-connected disabilities is a complete departure from established practices and procedures and, we believe, could contribute to the impairment of the compensation program. Under the circumstances, the Veterans Administration is unable to recommend the favorable consideration of H.R. 5320 by your committee.

H.R. 187 would authorize a clothing allowance of $300 per year to each veteran who, because of a compensable service-connected disability, uses a prostheticappliance which tends to wear out or tear his clothing. The initial cost of this program might be as high as $15 million the first year, increasing each yearthereafter.

The group of veterans contemplated by the bill is presently given special consideration in that they receive compensation at higher rates than the basicamounts authorized for their degree of disability as determined under the schedule for rating disabilities. The amount of monthly compensation may run as high as $525, plus additional amounts for dependents and an additional $200 for aid and attendance. These higher rates give recognition to the fact that these seriously disabled veterans face a variety of special problems, including the wearing of appliances, in addition to impairment of earning capacity.

Under existing law the Veterans' Administration furnishes “special clothing" made necessary by the wearing of a prosthetic appliance and, as a corollary, also furnishes repairs, reweaving, and special protective linings to those areas of conventional clothing where damage or excessive wear is or could be the result of wearing such an appliance.

In view of the special benefits already available to this group, the Administrator has concluded that he is unable to recommend favorable action on H.R. 187.

H.R. 1745 proposes concurrent payment of full compensation and partial pension to certain veterans of World War I and later wars. It would authorize use of the same service-connected disability as a basis for such dual payments, and would extend to those veterans a preference in the pension field.

Also, this proposal to blend the compensation and pension programs, which have different objectives, would result in paving pension for permanent partial non-service-connected disabilities. Partial disability pension was authorized for World War I veterans in 1930. It was discontinued in 1933. Since then permanent and total disability has been required to qualify for pension as a World War I veteran. It has always been a qualifying requirement for pensions for veterans of World War II and the Korean conflict. In our judgment it is a reasonable requirement. Moreover, we see no basis for extending to certain service-connected disabled veterans a preference such as is proposed by the bill.

Due to lack of necessary data, we are unable to estimate the cost of the measure if enacted.

The Veterans' Administration recommends that H.R. 1745 be not favorably considered.

H.R. 5509 would require concurrent payment of full pension and partial compensation for certain war veterans, with service-connected disabilities stated in the bill, who meet the requirements for pension. The mandatory provision to pay pension in lieu of a portion of disability compensation would have an adverse effect upon most veterans with disabilities rated abve 30 percent because the combined payments under the bill would be less than the compensation currently payable. On the other hand, it would result in greater combined payments for most veterans with service-connected disabilities rated at 30 percent or less, The bill would extend preferred treatment to veterans with certain service-connected disabilities and would be discriminatory and precedential as to veterans with other service-connected disabilities. This proposal to blend the compensation and pension programs, which have different objectives, could result in dual payments based on the same disability.

It is estimated that enactment of the bill as introduced would result in a savings of $45,800,000 the first year, and that savings should increase to a minor extent in each of the succeeding 4 years. For the information of the committee, if H.R. 5509 did not have the mandatory substitution feature, but instead permitted the payment of the greater benefit, it is estimated the first-year cost of the bill would be approximately $10,900,000, and that the cost should increase slightly in each of the succeeding 4 years.

The Veterans' Administration recommends that H.R. 5509 be not favorably considered.

« PreviousContinue »