Subject to the limitations contained in subparagraph (c) tropical diseases, such as cholera; dysentery, filariasis; leishmaniasis; leprosy; loiasis; malaria; black water fever; onchocerciasis; oroya fever; dracontiasis; pinta; plague; shistosomiasis; yaws; yellow fever and others and the resultant disorders or diseases originating because of therapy, administered in connection with such diseases, or as a preventive thereof, shall be accorded service connection when shown to exist within one year after separation from active service or at a time when standard and accepted treatises indicate that the incubation period thereof commenced during active service. (5th proviso, subpar. (c), par. I, pt. I, Veterans Regulation 1 (a), as amended.) NOTE.-Service-connection generally: Changes 2-year Changes 2-year (a) The above presumptions are not construed to prevent service-connection for any disease or disorder otherwise shown by sound judgment to have been incurred in or aggravated by service. (Last sentence of subpar. (c), par. I, pt. I, Veterans Regulation 1 (a), as amended.) (b) Policy of the Veterans' Administration governing direct service-connection based upon active service in war, campaign, or expedition enacted into law, Public Law 361, 77th Cong., Dec. 20, 1941. The provi sions of that act are as follows: "That the Administrator of Veterans' Affairs is hereby authorized and directed to include in the regula tions pertaining to service connection of disabilities additional provisions in effect requiring that in each case where a veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of his service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. "In the case of any veteran who engaged in combat with the enemy in active service with a military or naval organization of the United States during some war, campaign, or expendition, the Administrator of Veterans' Affairs is authorized and directed to accept as sufficient proof of service connection of any discase or injury alleged to have been incurred in or aggravated by service in such war, campaign, or expedition, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reason able doubt in favor of such veteran: Provided, that service connection of such injury or disease may be re butted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each such case shall be recorded in full." Other statutory presumptions having special application: (a) As to World War I veterans, sec. 200 of the World War Veterans' Act, 1924, as amended, repealed by Public Law 2, 73d Cong., Mar. 20, 1933, and restored with limitations by Public Law 141, 73d Cong., Mar. 28, 1934, as amended, provides a presumption of service connection for neuropsychiatric disease, spinal meningitis and active tuberculosis disease, paralysis agitans, and encephalitis lethargica, or amoebic dysentery, developing to a 10-percent degree of disability or more prior to Jan. 1, 1925. Under the World War Veterans' Act, the said presumption in the cases of active tuberculosis diseases and spinal meningitis was conclusive, as was the presumption of soundness at time of enlistment contained in the same section, but under the law, as restored with limitations, these presumptions are rebuttable by clear and unmistakable evidence. (b) As to World War II veterans and those with active service on or after June 27, 1950, Public Law 239, 82d Cong., Oct. 30, 1951, contains a presumption of service connection for active psychosis developing to a 10-percent degree or more within 2 years after separation from active service, but this presumption is applied solely for the purposes of hospital and medical treatment, including outpatient treatment. (c) As to veterans of the Spanish American War, including the Boxer Rebellion and Philippine Insurrection, their disabilities are deemed to have been incurred in line of duty during such war, solely for the purposes of outpatient treatment when need therefor is established. Source: Office of Legislation, Veterans' Administration, Mar. 30, 1953. Mr. BIRDSALL. First of all I will mention that we have, you will notice, chronic diseases; that is after aggravation. There we include the list of diseases now included in the law with the presumption that attaches. No. IV, active pulmonary tuberculosis that I mentioned before, has 3 years. No. V is multiple sclerosis, 2 years; No. VI is tropical diseases as they now stand with the 1-year presumption. In the notes below as an aid to see what our service-connection provisions are, I have the subject of service connection generally. First of all I have incorporated one part of the regulation which says these presumptions are not all inclusive. We can grant a direct service connection without referring to them. The second is the one that I mentioned before, Public Law 316 of the 77th Congress, December 20, 1941, which enacted into law a long-existing policy governing direct service connection and with some amplification to govern the Veterans' Administration in the determination of these stress and strain cases, combat and otherwise. The other statutory presumptions have special application. The first one pertains to the World War I group. Under the World War I Veterans Act, 1924, a neuropsychiatric disease, spinal meningitis, and active tuberculosis disease, paralysis agitans, and encephalitis lethargica or amoebic dysentery developing to a 10-percent degree of disability or more prior to January 1, 1925 was presumed to be due to service. There was a conclusive presumption for tuberculosis and spinal meningitis, but that law was repealed, and then it was restored with limitations. So today such presumption of service connection for World War I veterans may be rebutted. Another presumption we have in the law for World War II and Korea veterans is the one I mentioned in connection with active psychosis, but this 2-year presumption is applied solely for the purposes of hospital and medical treatment, including outpatient treatment. They do not get compensation on such presumption. The third has to do with veterans of the Spanish-American War, including the Boxer Rebellion and Philippine Insurrection. Their disabilities are deemed to have been incurred in line of duty during such war, solely for the purposes of outpatient treatment when need therefore is established. The next subject we have is that which would prohibit the severance of a service-connected disability. The bills, H. R. 463, H. R. 628, and H. R. 2534, are identical, and would prohibit the severance of a service-connected disability which has been in effect for 10 or more years. There is a discussion as to the form of the bill in our report, but the real meat of our comment on that is as follows: The bill, therefore, pertains almost exclusively to the benefit of compensation. The multitude of provisions of law affecting adjudication of claims for compensation and the many regulations and instructions necessarily required for the proper functioning of the rating agencies of the Veterans' Administration make it inevitable that service connection on occasions is erroneously authorized. Errors in adjudication may arise from misrepresentation or misapplication of the law or facts. Under existing law the Veterans' Administration has the latitude of correcting obvious or clear and unmistakable erroneous actions in rating and adjudication. When discovery is made that a claim has been erroneously denied, the rating should be, and is, changed and the claim paid. Conversely, in cases in which a claim is erroneously allowed, the error should be, and is, corrected. Under existing procedure, service connection once granted is not discontinued unless such grant is shown to have resulted from clear and unmistakable error. There does not appear to be any valid reason for allowing a person to continue to receive compensation merely because at some time in the past he was erroneously granted compensation to which he was not entitled. The bill would require the perpetuation of clear and unmistakable error discovered in any case after 10 years. As a convenience to the subcommittee I have brought with me selected extracts from our regulations and procedure which would be helpful. They clearly outline what the practice is with reference to review, rerating, and correction of any decision. Mr. RADWAN. That is with respect to the existing law? Mr. RADWAN. Supposing you put that in the record? 1009. REVISION OF RATING BOARD DECISIONS (A) No rating board will reverse or amend, except upon new and material evidence, a decision rendered by the same or any other rating board, or by an appellate authority, except where such reversal or amendment is clearly warranted by a change in law or by a specific change in interpretation thereof specifically provided for in a VA issue: Provided, That a rating board may reverse or amend a decision by the same or any other rating board where such reversal or amendment is obviously warranted by a clear and unmistakable error shown by the evidence in file at the time the prior decision was rendered, but in each such case there shall be attached to each copy of the rating a signed statement by the rating board definitely fixing the responsibility for the erroneous decision. (See also R. & P. R.-1201.) Where the severance of service-connection is considered warranted on the facts of record, see subparagraph (D) hereof. (May 13, 1947.) (B) Whenever a rating board may be of the opinion that a revision or an amendment of a previous decision is warranted on the facts of record in the case at the time the decision in question was rendered, a difference of opinion being involved rather than a finding of clear and unmistakable error, the complete file will be forwarded, accompanied by a complete and comprehensive statement of the facts in the case and a detailed explanation of the matters supporting the conclusion that a revision or amendment of the prior decision is in order, to the Assistant Administrator for Claims, attention of the Director, Veterans Claims Service, or Director, Dependents and Beneficiaries Claims Service, as the case may be. A rating decision will not be effected in any such case pending the return of the case file following Central Office consideration. The [commencing date of benefits in such cases if otherwise payable will be the date of the action by the Central Office authority authorizing a favorable rating based on a difference of opinion. In field office cases, this will be the date of the letter signed by the Assistant Administrator for Claims, the Director, Veterans Claims Service, or the Director, Dependents and Beneficiaries Claims Service, and, in Central Office cases, will be the date on which the Assistant Administrator for Claims or the appropriate Director signs or approves the memorandum authorizing the favorable rating. The foregoing is applicable] regardless of whether there is a pending claim in file. [Where the initial rating for death compensation or pension purposes is favorable, the commencing date of death benefits will be determined without regard to the fact that the death rating may reverse, on a difference of opinion, an unfavorable rating for disability purposes, entered by a rating agency other than the Board of Veterans Appeals, which was in effect at the date of the veteran's death.] (April 5, 1950.) (C) Determinations in effect on March 19, 1933, will not be reversed in those cases comprehended within the provisions of sections 27 and 28, Public Law 141, 73d Congress, except as provided in these sections. These cases, therefore, will not be referred under subparagraph (B) above upon a difference of opinion. In the event clear and unmistakable error is discovered, the rating board will take action as provided in subparagraph (A) above. (October 19, 1949.) (D) Authority to sever service-connection upon the basis of clear and unmistakable error (the burden of proof being upon the Government), even in those instances where veterans are pursuing courses of vocational rehabilitation training under Veterans Regulation No. 1 (a), part VII, as amended, is vested in regional offices and centers. Service-connection will not be severed in any case on a change of diagnosis in the absence of the certification hereinafter provided. Accordingly, in reports of examinations submitted for rating purposes, where a change in diagnosis of a service-connected disability is made, the examining physician or physicians, or other proper medical authority, will be required to certify, in the light of all accumulated medical evidence, that the prior diagnosis on which service-connection was predicated, was not correct. This certification will be accompanied by a summary of the facts, findings, and reasons supporting the conclusion reached. When the examining physician or physicians, or other proper medical authority, are unable to make the certification provided herein, serviceconnection will be continued by the rating agency. Where this certification is made, the case will be carefully considered by the rating agency and in the event it is determined in consideration of all the accumulated evidence that serviceconnection should be continued, a decision to that effect will be rendered, citing this regulation as authority. If, in the light of all the accumulated evidence, it is determined that service-connection may not be maintained, it will be severed. The claimant will be immediately notified in writing of the contemplated action and the detailed reasons therefor and will be given a reasonable period, not to exceed 60 days from the date on which such notice is mailed to his last address of record, for the presentation of additional evidence pertinent to the question. This procedure is for application except (1) in case of fraud; (2) in case of a change in law; (3) in case of a change of interpretation of law specifically provided in a VA issue; or (4) where the evidence establishes the service-connection to be clearly illegal. (See [par. 86b, VA Manual M8-5 Rev.]) (March 6, 1951.) (E) When the reduction of an award for a service-connected disability is considered warranted by a change in physical condition, the rating agency will prepare an appropriate rating extending the present evaluation 60 days from the date of rating, followed by the reduced evaluation. In all such cases award action and approval will be processed at the time of rating but the date of submission and approval entered on the award form will be the date following expiration of the 60-day period following the date of rating. The reduction or discontinuance of the award shall become effective, in accordance with Veterans Regulation No. 2 (a), part I, paragraph III (b), on the last day of the month in which the approval of the award is effective. In view of the time limitation the veteran will be promptly notified in writing at the time that such award action and approval are processed that the reduction or discontinuance will be effective as provided above, without further notice, if additional evidence is not submitted within the 60-day period. Mr. SECREST. Did you not tell us last year when we had testimony on this type of bill that after 20 years you do not re-rate? Mr. BIRDSALL. Congressman, if I may I will get into that in the other bill that passed the House this last Congress. Mr. SECREST. Oh. Mr. BIRDSALL. This is a little bit different in that it goes to service connection itself rather than the rating. Mr. RADWAN. Mr. Mailliard has a question. Mr. MAILLIARD. Have you any means of telling us how many of the connections that would be prohibited under this law have been made in recent years? Do you have any information on that? How often do these errors occur? Mr. BIRDSALL. Mr. Purks of the Claims Service is here; he may have some judgment on that. I would not know about that. This is Mr. Joseph N. Purks, field supervisor, Veterans Claims Service. Mr. PURKS. Last month we had 44 severances of service connection, and generally before that it ran an average of 70. Mr. MAILLIARD. Average of 70 cases a month? Mr. PURKS. Yes, sir. Mr. MAILLIARD. You would not be able to put that into a percentage of your total case load? Mr. PURKS. Our total running awards caseload; that is, the grants for service connection, run around 2 million. Mr. SECREST. It would probably cost you more to find those 70 than it would if you had this law? |