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So that is why these various presumptive bills have been introduced, because of the lack of complete records, or the lack of the ability of the man to prove that he actually had manifestations of the disease while he was in the service.

What I would like to ask the captain on that, with respect to tropical diseases, do you think that there should be certain presumptive periods with respect to malaria and other similar diseases?

Captain SAPERO. Yes; I do; but I would suggest that it be not made a statutory provision, that the decision on that should be left to the administrative agencies, as advised by expert consultants on the matter.

Secondly, that if, whereas, it is obviously necessary to set up presumptive periods to cover the majority of the cases, I think that the policy should be prescribed, that it is clearly recognized that injustice would be done to all people under such a policy.

Mr. MATHEWs. When has the Veterans' Administration ever felt it had the authority to presume a service connection of a disease or an injury without some sort of medical testimony?

Captain SAPERO. I couldn't answer that, sir.

Mr. MATHEWS. Well, as a matter of fact, it practically never does; does it, sir?

Captain SAPERO. I don't know, sir.

Mr. MATHEWS. All right. Do you have any questions?

Mr. PRICE. No.

Captain SAPERO. I would just like to add, sir, that you can set up, as you will, a proviso which states, in which the vast majority of cases will show manifestations of the diseases. That will work and be just for the vast majority of veterans.

Mr. MATHEWS. If it is done.

Captain SAPERO. Yes.

Mr. MATHEWS. On the one hand, as I see it, the Veterans' Administration has the duty of not allowing compensation for a disease of any kind which they can't on the record justify as service connected. Isn't that true?

Captain SAPERO. I will agree with that, sir.

Mr. MATHEWS. In the early days, there may not be so much now, but it is somewhat so, the Veterans' Administration, to my personal knowledge, took the viewpoint that wherever there was a doubt, it should be resolved in favor of the Government instead of in favor of the veteran.

Now, if it would get over that completely, then the matter of regulations could take care of it very easily. Isn't that true? Captain SAPERO. Yes, sir.

Mr. MATHEWS. But first of all, to be just to the veteran, don't you think that the Veterans' Administration must take the attitude that in case of doubt, that doubt must be resolved in favor of the veteran? Captain SAPERO. I would agree with that, sir.

Mr. MATHEWS. That is all I have.

Mr. BIRDSALL. Mr. Willis Howard, Assistant Administrator of Claims, Veterans' Administration.

Mr. HOWARD. Mr. Chairman, Mr. Brooks will answer questions on that.

Mr. MATHEWS. Mr. Howard is not going to testify?
Mr. BIRDSALL. His assistant, Mr. Brooks, will testify.

STATEMENT OF HENRY Q. BROOKS, ASSISTANT DIRECTOR, VETERANS' CLAIMS SERVICE, VETERANS' ADMINISTRATION

Mr. BROOKS. Mr. Chairman, and gentlemen, my name is Henry Q. Brooks.

Mr. MATHEWs. You are assistant to Mr. Howard?

Mr. BROOKS. I am Assistant Director of Veterans' Claims Service. Mr. MATHEWS. Will you direct first your testimony to H. R. 3650? Mr. BROOKS. Yes, sir.

Mr. MATHEWS. Speak loudly enough so not only we can hear, but these interested parties that are back there can also hear you.

Mr. BROOKS. Yes, sir.

We have a conclusive presumption in the bill. If the bill were enacted as it is, it would give the man a conclusive presumption of soundness at enlistment, and it would prevent the Government from rebutting service connection of the condition, if he lived in an endemic area subsequent to his discharge.

Mr. MATHEWS. Right there, you are, I think, mixing up two things. One is the question of soundness before he enters the service, and the other is the question of his living in an endemic area after he is separated from the service. Let's not talk about the first, because if the Government took him, I think we can say he was either sound or it was the Government's mistake in taking him.

Mr. BROOKS. Mr. Chairman, with regard to any other condition, we don't have a conclusive presumption of soundness. We can rebut service connection on clear and unmistakable evidence of prior existence of the condition.

Mr. MATHEWs. You mean even in tuberculosis? A case of that? Mr. BROOKS. Yes, sir, any case. That is the present law.

Mr. MATHEWS. Then the Veterans' Administration would want the right to combat a presumption on the ground that either he had the disease before he went into the service, or that he was subject to it after he came out?

Mr. BROOKS. Yes, sir.

Mr. MATHEWS. Do I understand you to say then, that at the present time the Veterans' Administration has a right to combat the existence or the aggravation of tuberculosis, on the ground that the man had tuberculosis before he was inducted into the service?

Mr. BROOKS. Yes, sir.

Mr. MATHEWS. You have that right now?

Mr. BROOKS. Yes, sir; by clear and unmistakable evidence.

Mr. MATHEWS. Proceed.

Mr. BROOKS. That is one objection we have, and we think further, that we can by regulation provide for any of these cases if the 1-year period is found to be too limited for any condition, malaria, or any of these sbsequent to the date of the man's discharge-we have authority under the law to provide by regulation for further periods.

Of course, I am not a physician. I don't know what the periods should be. Bt we could do it, Mr. Chairman.

Mr. MATHEWS. Oh, yes. We understand that.

Mr. BROOKS. We have done it in the regulation now. The only requirement is that the condition must be shown by medical evidence within a year.

Mr. MATHEWs. That is the whole trouble. That we are trying to get at here.

Mr. BROOKS. We can extend that period on the basis of medical information and medical data.

Mr. MATHEWS. Suppose the man has no medical record. You have no evidence before you whatsoever, have you?

Mr. BROOKS. No. If he has no evidence within the year, under the present regulation, no medical evidence, we would not service connect it. We would do this. If he has no official record, he is service connected. If he has no official record, but he makes a statement to the examining physician at the time of his discharge from the service, that he had malaria in the service, we will give that man service connection on his own unsupported statement in malaria, and only in malaria. Mr. MATHEWS. Suppose it manifests itself right after he gets out of the service.

Mr. BROOKS. Well, right after he gets out, we would probably give him service connection because it is so close to the date of his discharge. We would give him his service connection as a matter of fact. However, if he must rely upon the presumption which means the malaria showed up the eighth, shall we say, ninth, or tenth month, then we require medical evidence. That gives him his service connection, which is by regulatory presumption.

Mr. MATHEWs. Proceed.

Mr. BROOKS. If that period is extended, we would give him that extended period, say 14 months or 15 months.

Mr. MATHEWS. Suppose a man has no medical record at all, but suppose that after he comes out of the service, there is produced proof by laymen of his condition as observed, of his actions, and what he did, and how he seemed, all of which would tend to show he had symptoms of this particular disease. You don't call that medical evidence, do you?

Mr. BROOKS. No, sir, that is lay evidence, but that man may establish the service connection, or he may establish the existence of his condition while in the service by affidavits from his comrades.

Mr. MATHEWS. Let me interrupt you. That is all very well in theory. After a man gets separated from the service, he served with men from Arizona, Oklahoma, and he lives in New York. How is he going to get affidavits to prove those things?

Mr. BROOKS. Some of them do.

Mr. MATHEWS. Some of them do?

Mr. BROOKS. Yes.

Mr. MATHEWS. The lucky ones can do it.

Mr. BROOKS. Then to pursue the thought a little further if he can establish the continuity of his condition from discharge, show symptoms, by lay evidence, during the 1-year period, and the condition is diagnosed subsequent to the 1-year period, we will give him service connection.

Mr. MATHEWS. Without medical evidence?

Mr. BROOKS. The confirmation of the condition is subsequent to the 1-year period. If he has the medical confirmation within the 1-year period, he needs no continuity; we give him the presumption.

Mr. MATHEWS. I am thinking of the poor fellow that got this thing, even had attacks of it, no medical record made whatsoever. He comes

out, discharged when he doesn't have any attack, any evidence of it. He comes out, the attacks are renewed. He is the man that this bill is designed to protect.

Mr. PRICE. Mr. Brooks, could you estimate the number of cases you have had where you have recognized the effect of the man's claim at the time of his discharge, that he did have malaria or any other disease? Isn't that a matter of medical record, that you have recognized up to this date?

Mr. BROOKS. Mr. Congressman, I couldn't give you the number, but we have placed on the rolls thousands of men merely on the basis of their statement to the examining physician at the time he was discharged that he had malaria.

Mr. PRICE. You were in better shape after World War II, than you were with World War I?

Mr. BROOKS. That is true. The medical records of World War II are much better than World War I, yes, sir.

Mr. PRICE. You don't know how many men World War II discharged that would think about giving the doctor such a statement? Mr. BROOKS. No.

Mr. PRICE. You don't know anything about that?

Mr. BROOKS. They were asked what they had. They can state they had any condition at any time in the service.

Mr. PRICE. That is one of the big troubles we had after World War I, you didn't have very much evidence of any sort of statements of the doctors or anyone else.

Mr. BROOKS. Maybe they were examined hurriedly. I think they had the opportunity to state at least what they had in the service. Mr. PRICE. That is all.

Mr. MATHEWS. I might make this statement, Mr. Brooks. I, personally, in theory, much prefer the administration of these details by regulation. They are more flexible. They can be made to conform to hardship cases. If new things are discovered, you can change your regulations. You don't have to come back to get a rigid act of Congress. That is fine. There are two difficulties that lie in the way of it. In the first place, whether or not the Veterans' Administration takes the view that they should have liberal regulations rather than too strict regulations. Secondly, whether they take the view that they haven't any right to liberalize the regulations because the act of Congress doesn't give them the power to do so. It depends a great deal upon two things. First, whether the act is broad enough to do it, and secondly, whether they will follow that. That is the real difficulty. Mr. BROOKS. Mr. Chairman, I think we try to be liberal. We certainly do.

Mr. MATHEWS. There seems to be some evidence to the contrary according to the cases that come before me.

Mr. BROOKS. Mr. Chairman, I think this particular regulation with regard to malaria, where we accept the unsupported statement of the veteran and give him service connection, is an evidence of liberality. Mr. MATHEWS. I will grant you that. That is.

Mr. BROOKS. It is a cardinal rule of our policy, written time and time again, that we resolve reasonable doubts in favor of the veterans.

There may be times when we don't do that, but that certainly is the policy of the Veterans' Administration.

Mr. MATHEWS. I was one of the ones in the early days that helped beat that into the Veterans' Administration.

Mr. BROOKS. It is in there.

Mr. MATHEWS. I don't say it isn't. I say, if it can be done, properly done in justice to the veteran, it seems to me as far as possible, matters of this character should be covered by regulation. But when it comes to certain conditions, you haven't improved, when you take the view you have to have medical evidence. That is narrowly defined. We do run into some difficulties and we do run into some hardship cases. I have nothing further, do you? Do you want to continue on the tuberculosis bills?

Dr. SHAPIRO. Is it possible for me to ask a question?

Mr. MATHEWs. I think so. You are a medical man, I am not. Dr. SHAPIRO. I understood you to say, Mr. Brooks, that an individual may submit satisfactory lay evidence which could be construed as being a malarial attack within the 1-year period following discharge, and then after the 1-year period, submit acceptable medical evidence, that you would then service conect him on the basis of the lay evidence, followed by medical testimony, a year after discharge. Is that true?

Mr. BROOKS. Yes.

Dr. SHAPIRO. Isn't that contrary to your regulation in your Technical Bulletin which shows that he should show it medically within a year?

Mr. BROOKS. No, that is for presumptive purposes entirely, that is, in the absence of evidence to show the continuity of the condition. That is an added liberality which we try to give. It may be too strict that we require medical evidence within that year. In the case, when you establish it by continuity of evidence, you are not dealing with the presumption. You are dealing with the continuity of symptoms. It is the same thing with any other condition.

Dr. SHAPIRO. Of course, we have submitted cases from Montana, Wyoming, and so forth, where a man cannot get to a doctor because of road conditions, weather conditions, the distance from a doctor, the first year. Then he showed evidences of malaria after the first year, and been denied. Isn't that right?

Mr. STEVENS. Yes.

Mr. BROOKS. We have seen a few cases where that happened. I should say not more than eight. The situation was this, there was no record in the service, the man made no complaint of malaria when he was discharged. The year elapsed. In the fourteenth or fifteenth or sixteenth month he showed malaria symptoms in Nevada-in New Hampshire. We have handled these on an individual basis in con junction with the medical service.

Mr. MATHEWS. Mr. Brooks, let me ask you this. What would you say if H. R. 3650 were amended to strike out "tropical disease," and insert "malaria," and a provision was added, "provided that such presumption," or words to that effect, "could be rebutted on clear and convincing proof that the man had the disease before he entered the

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