COMMENT
WELCOME HOME: OUR NATION’S SHAMEFUL
HISTORY OF CARING FOR COMBAT VETERANS
AND HOW EXPANDING PRESUMPTIONS FOR
SERVICE CONNECTION CAN HELP
TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.
INTRODUCTION........................................................................... 113
A HISTORY OF SHIRKING RESPONSIBILITY ................................ 116
A. The Revolution .................................................................. 116
B. The Civil War .................................................................... 118
C. World War I....................................................................... 119
D. World War II ..................................................................... 121
E. The Vietnam Era ............................................................... 122
THE ANATOMY OF A CLAIM: PROCESS AND PROBLEMS ........... 123
A. Process .............................................................................. 123
B. Failed Protections ............................................................. 127
PRESUMPTIONS IN THE CONTEXT OF A VETERANS CLAIMS:
A CONGRESSIONAL CURE FOR VA FAILURES ........................... 128
A. The Radiation Exposed Veterans Compensation Act ........ 129
B. The Agent Orange Act ....................................................... 130
C. The Gulf War Acts ............................................................. 132
COMBAT VETERANS SUFFERING FROM PTSD AND
HEARING LOSS DESERVE PRESUMPTIVE
PROTECTION FROM CONGRESS .................................................. 134
CONCLUSION .............................................................................. 141
I. INTRODUCTION
T.G. is a Vietnam veteran. He served his country on a riverboat,
patrolling the waterways that wind through the jungles of Vietnam. On
November 4, 1969, T.G. and his fellow crewmen experienced a scene that
would replay in their memories for the rest of their lives, like a video on
continuous loop. T.G. recalls that it was 11:30 p.m. when their boat, the
MSR7, was ambushed from three separate firing-locations along the
riverbank. In a letter he was required to write to support a claim for
veterans’ benefits, T.G. described a murderous barrage of machine-gun and
rocket fire and the carnage that was its aftermath. The MSR7 was hit by a
total of thirteen B-40 rockets, one of which disabled its engine and steering.
This made it impossible for the MSR7 to maneuver out of the kill zone.
T.G. stood alone at the helm throughout the attack and was able to keep the
MSR7 moving despite the fact that an AK-47 round had pierced through his
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left leg and shrapnel from exploding rockets had badly wounded his back
and left bicep. He was also able to make and maintain radio contact with the
command located at Nha Be, informing them of their situation and location.
Because of his efforts, the MSR7 remained a moving target, dodging the full
brunt of the attack until helicopter gunship support arrived, and some of the
crew was saved. Those who survived, however, were left with permanent
imprints of human loss and suffering that both defy description and go
beyond the realm of common understanding. T.G.’s letter depicts a scene
that includes helplessly watching as the boys, who had been both his family
and friends, fell around him. When the attack subsided, those left standing
recovered what was left of the fallen as the MSR7 began to sink in the
French Canal.
By all accounts, no one should have survived the attack. Despite the
insistence of those who would call T.G. a hero, he has bucked against the
suggestion. Like many veterans who have been credited with saving the
lives of others, he is not fond of the term. T.G. would simply prefer to not
have the memories. But the loop plays on.
T.G. received several awards
for his service, including the Purple Heart, Combat Action Medal, Navy
Commendation with Combat “V,” and a Bronze Star with Combat “V.”
What he did not receive was compensation for his injuries.
While still in Vietnam, T.G. complained that he could not hear and that
there was a continuous ringing in his ears. The corpsman that he saw gave
him some ear plugs and assured him that the problem would go away. T.G.
wore the ear plugs, and most of his hearing eventually did return, but the
ringing never stopped. When he returned to the United States, he was
honorably discharged from active duty. He waited for the ringing to go
away and for the remainder of his hearing to return as the corpsman had
promised. His hearing did not return, and the ringing persisted. In the
spring of 1971, just fifteen months after the MSR7’s fateful voyage, T.G.
filed a claim with the Veteran’s Administration (VA). Because he had been
discharged and his complaint to the corpsman in Vietnam never made it into
his medical file, he was swiftly denied.1 It has been thirty-seven years. T.G.
is still battling the VA for benefits.2
1. Though he was in the U.S. Navy, T.G. was airlifted to an Army hospital
following the attack on the MSR7. This common scenario resulted in an incomplete
military medical record.
2. Upon discharge from the Army hospital, T.G. walked out into the streets of
Vietnam alone, without orders and without a weapon. He was directed to “find” his
unit. It took him two days to hitchhike to Da Nang where he knew there were some
elements of his unit on station. Once there, he was turned away and told to head
back to the Delta. Again alone, he spent two more days hitchhiking. Eventually, he
located a mail chopper that was delivering mail to his unit. Half way there, the mail
chopper went down in a blaze. Amazingly, T.G. survived both the crash and the
enemy. When he was finally reunited with his unit he was assigned a duty that
required him to sweep the Vin Te canal for mines, a two-man patrol that amounted
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Though his disappointment in the VA is evident, T.G. harbors no anger
toward the Nation that has abandoned him and so many others. He is proud
of his service and has never spoken out against the conflict that left him with
so many scars. Nor has he ever considered throwing his medals away. It
would be years before T.G. learned that his feelings of isolation, panic
attacks, re-living of traumatic events, and the fact that he has never slept
without a gun on both sides of his bedroom are not extraordinary. They are
the symptoms of Post-Traumatic Stress Disorder (PTSD).
It is a sad reality that T.G.’s story is not unique. Once per week, he
attends group meetings with other veterans suffering from PTSD that had
similar experiences with the VA. In addition to PTSD, they suffer from
hearing loss, tinnitus, and various ailments related to their exposure to
hazardous substances.
The failures of the VA have been addressed on many levels. To its
credit, Congress has attempted to address VA failures through a patchwork
of legislation designed to alleviate the evidentiary burdens placed on
veterans. However, the cruel irony is that veterans’ legislation is often a
case of too little, too late. With more than one thousand veterans of World
War II passing away each day (as of January 2008), time may be running out
for Congress to do justice for them.3 But it is not too late for veterans of
Korea, Vietnam, the Persian Gulf, Afghanistan, and Iraq. To alleviate the
burden placed on veterans, Congress should enact legislation that clearly and
unequivocally expands the presumptions of service-connection for disabled
combat veterans with PTSD and auditory disabilities.
Part II of this Article examines the historical background of the VA and
its use of presumptions to aid veterans, as well as the struggles of our
veterans to obtain compensation since the Revolution. Part III briefly
describes the anatomy of a claim for disability benefits and the problems
associated with the claims process. Part IV explains how Congress has used
presumptions in recent years to alleviate the burdens on atomic, Agent
Orange, and Gulf War syndrome veterans. Part V discusses how both the
VA and veterans can benefit from the expansion of statutory presumptions
for latent disabilities, such as PTSD and hearing loss. Finally, Part VI
concludes that such presumptions not only make sense, but they are
necessary to provide justice to those who bear the scars of service.
to an involuntary game of Russian roulette. T.G. was exposed to extreme stresses in
service, including the attack on the MSR7, yet the VA has continuously questioned
the veracity of his claim for service-connected PTSD. T.G. told the preceding to the
author and wishes to remain anonymous.
3. DEP’T OF VETERANS AFFAIRS, VA BENEFITS & HEALTH CARE UTILIZATION
(2007), http://www1.va.gov/vetdata/ (follow “VA Stats at a Glance” hyperlink).
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II. A HISTORY OF SHIRKING RESPONSIBILITY
The condition of war has preexisted that of nations, and as long as there
have been nations and wars, there have been veterans. War is disabling by
design;4 however, caring for disabled veterans has not historically been a
part of the design of war. This part addresses how the United States has
dealt with disabled veterans returning to homes not quite as they left them
and to families and friends who cannot quite understand that the soldier is
also not quite as he left.5
A. The Revolution
Revolutionary War veterans were in a unique situation. When they
returned from the battlefield, the war had been won, but the Nation was not
yet on solid footing.6 Initially, Revolutionary War veterans were promised a
pension for life based on one-half of their service pay, but Congress was
well aware that it could not keep such a promise.7 For much of the
Revolution, there was no money to pay the Army, much less to pay for its
later honor.8
Many veterans returned to their rural farms severely in debt and without
compensation from their military service to help pay their debts.9 After
risking their lives to fight for human liberty, these men were thrown into
debtors’ prisons, and their family farms were seized.10 Ironically, they were
4.See Ann Hubbard, A Military-Civilian Coalition for Disability Rights, 75 MISS.
L.J. 975, 977 (2006).
5.Id. at 977-78 (“[Many veterans return] home to their civilian communities, where
few, if any relatives, friends or neighbors can comprehend their experiences or
fathom the terrors they faced on the battlefield and continue to face at home.”); see
also David A. Gerber, Disabled Veterans and Public Welfare Policy: Comparative
and Transnational Perspectives on Western States in the Twentieth Century, 11
TRANSNAT’L L. & CONTEMP. PROBS. 77, 78 (2001) (“These are . . . ordinary
people[] who cannot effortlessly return to the worlds of work and family from
which they came.”).
6. RICHARD SEVERO & LEWIS MILFORD, WAGES OF WAR: WHEN AMERICA’S
SOLDIERS CAME HOME-FROM VALLEY FORGE TO VIETNAM 29 (1989) (discussing
the fact that, although the fighting had ended, George Washington had concerns that
the British may not concede until after the Treaty of Paris was signed).
7. Id. at 33-34 (“They knew that just the half-pay-for-life proposal was
probably going to cost the government between $400,000 and $500,000 a year.
They also knew that during this period, the states contributed around $500,000 to
the Federal Treasury, which wasn’t even enough to run a bare-bones government,
let alone pay out pensions.”).
8. See id.
9. See id. at 58-59.
10. See id. at 59-63. The most famous of the veteran farmers was Daniel Shays,
a former officer in the Continental Army, who led fellow veterans to the steps of the
debtors’ courts to protest foreclosures and prison sentences for veterans while they
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paid for their military service in the form of paper certificates that had no
value to those who wished to collect back-taxes.11
It would be twenty-five years before the veterans of the Revolutionary
War were granted any relief.12 The Service Pension Act, passed in 1818,
entitled all destitute and wounded men that served in either the
Revolutionary War or the War of 1812 to a pension.13 It was the feeling of
then President James Monroe that “indigent and infirm veterans, including
those who had never been injured in war, deserved to be paid something by
their government.”14
Following the passage of the Service Pension Act, an unknown amount
of money was lost to fraudulent claims made by men that never served on
behalf of people who never existed.15 The situation created doubt about the
validity of all claims, which were then heavily scrutinized and often granted
arbitrarily.16 Rather than solving the problems of fraud and ad hoc decisionmaking, Congress simply resolved that the remaining veterans would die
soon enough, and the problem would solve itself.17
awaited relief from Congress. They succeeded in interrupting the proceedings of
the court until Massachusetts Governor James Bowdoin sent a merchant militia to
“put them down.” Id. at 63.
11. See id. at 22-23.
12. See id. at 90 (stating that the Service Pension Act was not passed until 1818).
13. Id. at 85-90.
14. Id.
15. Id. at 94.
16. Id. at 94, 101-04. First Lady Elizabeth Hamilton was granted a widow’s
pension after her husband lost his dual with Aaron Burr, though it was unclear
whether the President had relinquished his right to any benefit after his
Revolutionary War service; Thomas Paine, the author of Common Sense, was
denied a claim for benefits for reasons unknown; Jacob A. Young was denied,
having only fought against the British in “self-defense,” according to the Committee
of Claims; Cornelius Sauquayonk was an Indian Chief, denied for not having served
“by virtue of any competent authority”; Aaron Keeler was denied for having joined
the Continental Army when he was only twelve years old; John L. Schermerhorn
was denied because an Indian squaw adopted him while he was being held as a
prisoner of war; Thomas Miller was denied because he was unable to prove the
length of his service; Jehu Grant was denied because he served only as a waiter;
Jeremiah Klumph was denied because he was an express rider and not a “real
soldier”; William Drew was denied because he only served as a blacksmith; Jesse
Miles was denied because he claimed to have been at Bunker Hill, but he was from
Pennsylvania and “there were no Pennsylvania troops at Bunker Hill.” One
widow’s pension was suspended because there were three other soldiers with the
same name as her late husband. Id.
17. Id. at 94 (quoting an un-cited Congressional study that stated, “They are all
rapidly approaching the grave. A few years will number them with the dead . . . .
The country will soon be released from every pecuniary obligation which it now
owes them . . . .”).
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B. The Civil War
Much like the veterans of the Revolution, those who had fought in the
Civil War came home to an intolerant society that had simply moved on
without them. Most struggled to find employment.18 Having enlisted in
youth, they returned to civilian life without a skill or trade to offer.19
Despite the disadvantages that the war had placed on them, they combated
the expectant attitude of society that they should return to their lives without
effort, assimilate quickly, and contribute.20 There was a general feeling that
soldiers needed to take care of themselves, no matter what adversity or
disability they faced.21 Mutilated veterans were advised to learn “new
muscular habits.”22 A soldier that lost an arm was entitled to $50, and $75
was allotted for a lost leg.23 These were modest sums, though perhaps
generous considering that neither government, nor society, was prepared for
the notion that they should care for the men who fought for the Nation.24
To add insult to injury, many veterans were severely addicted to opiates,
having been exposed to and administered morphine in its many forms as a
painkiller during service.25 Not only did the government refuse to
compensate veterans for the addiction it created, it allowed soldiers to be
blamed for the rampant drug abuse that was taking place throughout the
Nation.26
The Dependent Pension Act was passed in 1890.27 The veterans of the
Civil War were finally compensated, a full twenty-five years after the
Confederate surrender at Appomattox.28 The Act was widely criticized for
being so generous because it granted a pension for,
any veteran who had served at least ninety days and who for
any reason could not earn a living by his own labor . . . .
The law made no distinction between rich and poor veterans
18. Id. at 129.
19. Id. at 139 (discussing the vast number of unemployed veterans as a
contributing factor to the crime wave that followed the Civil War).
20. See Gerber, supra note 7, at 97 (discussing not only U.S. policies and
historic attitudes toward returning veterans, but also the policies and historic
attitudes of European nations toward their veterans).
21. SEVERO & MILFORD, supra note 8, at 136.
22. Id. at 129-30; see also Gerber, supra note 7, at 97.
23. SEVERO & MILFORD, supra note 8, at 136.
24. Id.
25. Id. at 137-38.
26. Id.
27. See id. at 182. Not surprisingly, the Act provided for the compensation of
Union veterans only.
28. See notes 14-15 and accompanying text. Like the Service Pension Act of
1818, it took twenty-five years to compensate veterans. No doubt, this Act was also
passed in the face of the reality that many of these men were also approaching their
graves.
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and no distinction between ninety-day veterans and those
who had served for years. The widows of such men were
also eligible.29
As of April 2007, there were still three Civil War dependents listed on
the Department of Veterans Affairs (DVA) pension roll, a statistic that
reminds us that the burden of compensating veterans and their families is
one that must be considered with an eye to the future.30
C. World War I
By the end of World War I (WWI), the government had finally
acknowledged the plight of veterans, especially the wounded, and realized
that they needed to be provided for.31 In 1921, Congress amended the War
Risk Insurance Act.32 This amendment established the Veterans’ Bureau
(VB) and gave it the power to administer veterans’ benefits.33 This was also
the first legislation to explicitly provide presumptions for serviceconnection.34
Its purpose was to “mitigate the difficulty of proving a
connection between military service and development of a disability.”35
After much debate on the floors of both houses, Congress concluded that an
ex-serviceman, who had a current disability of at least 10% resulting from
either tuberculosis or neuropsychiatric disease, would be relieved of the
burden of having to prove that either of these two conditions originated
while the veteran was in service.36
Unfortunately, the man that was selected to head-up the newly formed
VB was entirely incompetent. He plundered an estimated $250,000 on
alcohol, women and secret parties, and literally gave away millions of
dollars in supplies intended for veterans’ care.37 Not only did the VB do
29. SEVERO & MILFORD, supra note 6, at 182-83.
30. DEP’T OF VETERANS AFFAIRS, FACT SHEET: AMERICA’S WARS 1 (2007),
http:// www1.va.gov/opa/fact/amwars.asp.
31. SEVERO & MILFORD, supra note 6, at 247.
32. DEP’T OF VETERANS AFFAIRS, ANALYSIS OF PRESUMPTIONS OF SERVICE
CONNECTION
7-8
(1993),
available
at
https://www.18889322946.ws/vetscommission/e-documentmanager/gallery/Documents/Reference
_Materials/VA-Presumptions-Analysis_12-23-1993.pdf [hereinafter ANALYSIS OF
PRESUMPTIONS].
33. Id.
34. Id.
35. Id.
36. Id. (quoting the viewpoints of some senators that “[it] would be almost a
physical impossibility for any person afflicted with tuberculosis to fix the time when
the process became active,” and that veterans “ought to not to be deprived of the
benefit of the fact that they have served their country, and therefore are entitled to
this relief [even if they cannot prove that the disease originated in service]”).
37. SEVERO & MILFORD, supra note 6, at 247-57. Not only was Colonel Charles
T. Forbes a deserter, he was completely inept. Id. at 247-48. He was appropriated a
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little more for veterans than create a general sense of mistrust, it continued
the bureaucratic tradition of delay and hair-splitting in veterans’ affairs.38
More than 300,000 veterans were wounded in WWI, yet only 47,000 claims
were allowed for combat injuries; a statistic that begs the question whether
the motive of government was truly to help the wounded, or rather to limit
its own liability.39
In addition to the catastrophe that was the VB, Congress passed
controversial benefits legislation that lead to thousands of veterans marching
to the Capitol demanding relief in the Bonus March of 1932.40
hefty $18.6 million to establish hospitals for wounded veterans and a total operating
budget of $450 million. Id. Although he spent much time and money acquiring
hospital land, he only added two hundred beds for wounded veterans. Id. at 250.
He designed one hospital without a kitchen; spent $74,944.45 on floor wax, even
though the Veterans Bureau already had “thousands of gallons” of floor wax on
hand; purchased 45,045 gallons of soap for 87 cents a gallon when it was only worth
1.8 cents a gallon; stole 67,000 quarts of liquor that was purchased for medicinal
purposes and sold it during prohibition; “found a market” for $5 million worth of
morphine, cocaine, and codeine; sold 754,680 new bath towels for 3 cents each that
the government had paid 54 cents each for; sold 84,000 bed sheets that were worth
more than $1.00 each for 17 cents each; sold 98,995 pairs of homemade pajamas,
donated to the Red Cross for 30 cents each; sold 5,387 pounds of oiled paper that
cost the government 60 cents a pound for 5 cents a pound; as well as thousands of
other items for a grand total of nearly $7 million worth of goods sold for $600,000.
Id. at 252-53.
38. Id. at 258-59.
39. Id. at 259-60. This was based on the Senate’s investigation of Colonel
Charles T. Forbes. Id.
40. Id. at 259-75. The controversy was over whether the men who had just
defeated the Germans deserved to be compensated in the form of a bonus. Civilian
contractors made large profits in the form of bonuses as a result of the products and
services they provided to help the war effort. Id. at 260. Some felt that the men who
risked their lives and limbs for the same effort deserved similar compensation.
Congress eventually compromised, giving the veterans bonus certificates that would
not mature for twenty-one years. Id. at 263. Already having faced a decade and a
half of discrimination and unemployment, veterans now faced the Great Depression.
In a movement that began in Portland, OR, former soldiers began migrating to
Washington, D.C. Across more than 3,000 miles, they hitchhiked and rode in cattle
cars, joined along the way by thousands. Id. at 286. By the time they reached the
Capitol, there were as many as 65,000 veterans camped at a park, not far from the
White House. Id. at 269. Though they were peaceful, there was no doubt of their
intent to put pressure on Congress to give them the help they desperately needed.
President Herbert Hoover was not about to cave to such pressure. He sent General
Douglass McArthur to drive the veterans out of D.C. The veterans were unarmed,
hungry, and clothed in little more than tatters. As General McArthur’s men
advanced with tear gas and bayonets, the veterans sang “My Country ‘Tis of Thee.”
Id. at 275. Ironically, it was the Marines who were driving out their contemporaries.
The media handled the situation by accusing the veterans of being disorderly and
Communists. Id. at 272-73. It touted that most of the abused men were not even
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D. World War II
Though the Bonus March ended without relief for those veterans that
participated, their efforts may have planted a seed in the mind of
government that would help future soldiers. Their ability to organize,
mobilize, and vocalize their plight was not entirely unnoticed, nor was it
forgotten.41 Both President Franklin Delano Roosevelt and Congress
recognized the social problem that displaced soldiers returning from war
inevitably caused, and, for the first time, the United States Government
planned for the return of veterans before it made plans to go to war. 42 The
Selective Service Act was signed in contemplation of joining the war effort
in Europe, a full year before the attack on Pearl Harbor.43 The Act permitted
soldiers to return to the same jobs that they had held before the war, and it
required employers to re-hire them.44 Before the victory, Congress also
enacted the Serviceman’s Readjustment Act of 1944, also known as the GI
Bill of Rights, which entitled veterans to fifty-two weeks of unemployment
compensation upon their return, favorable terms for business and home
loans, and money for education.45 This change of heart toward making
veterans’ benefits available can probably be credited to the New Deal, which
softened America to the idea of social legislation.46
Unfortunately, the new legislation, with all of its good intentions, lacked
the leadership necessary to implement it.47 The leader of the VB was
Brigadier General Frank T. Hines, who had been running the agency since
1923.48 Accused of having succumbed to bureaucratic indifference, he was
credited with the red-tape formalities that prevented many deserving
veterans from receiving adequate care and compensation.49
Those men who returned from the Pacific theater had a new rash of
ailments for the VA to sort out, and by 1945, a number of presumptions of
service-connection were added to compensate veterans who had contracted
diseases of “tropical origin.”50 In addition to the difficulties associated with
proving service-connection for latent disabilities originating in foreign
environments, Congress recognized the reality that wartime record-keeping
was not a precise science, especially when it came to military medicalveterans. Id. at 275. A later survey revealed that 94% of the men were indeed
veterans, 67% had served overseas, and 20% were disabled. Id.
41. See id. at 285.
42. See id.
43. See id.
44. Employment and Reemployment Rights of Members of the Uniformed
Services Act, 43 U.S.C. § 4312 (1994).
45. SEVERO & MILFORD, supra note 6, at 289.
46. Id. at 264-65.
47. Id. at 304.
48. Id.
49. Id. at 304-05.
50. ANALYSIS OF PRESUMPTIONS, supra note 32, at 21-22.
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records. As a result, it codified the VA Benefit of the Doubt Rule, which
allegedly resolves questions of fact in a veteran’s favor when the evidence is
equally balanced.51
E. The Vietnam Era
Unlike their fathers in World War II, the veterans of Vietnam returned
to a society that viewed them not as heroes who had defeated an evil
dictator, but rather as the barbarians of a “butchering war.” 52 Again, they
faced high unemployment and were blamed for the burgeoning drug abuse
that would become the hallmark of an era.53 They came home to a society
that saw them as failures, a President who was more concerned with his own
involvement in the Watergate scandal than the plight of veterans, and a
government that felt that it had somehow been too generous to veterans in
the past.54 Despite all of the social unrest, Vietnam veterans persisted and
succeeded in educating the VA, the medical profession, and the public about
the enduring effects of war on those who fight it.55 Not only did they
legitimize the link between war experiences and illness, they forced the
scientific and medical communities to recognize and research war-related
psychological problems.56
By 1979, the then Director of the VA’s Compensation and Pension
Service, J.C. Peckarsky, had received hundreds of complaints from Vietnam
veterans about numerous cancerous conditions, stillborn and deformed
children, miscarriages, lack of sex drive, low sperm counts, weaknesses and
pains, strange lumps, and festering sores, all of which were unexplained.57
The veterans claimed that their ailments were the result of Agent Orange, a
defoliant dumped in mass quantities over the jungles of Vietnam.58 A toxic
ingredient called 2,4,5-T comprised approximately 50% of the defoliant.59
Today, 2,4,5-T is known as dioxin, a substance so deadly that it was banned
from use in domestic pesticides during the Vietnam Era.60 Director
Peckarsky claimed that there was no such thing as an Agent Orange
disability, and so began what would become years of litigation on the part of
veterans, desperately seeking recognition for their ailments, and denial on
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
Id. at 23; see discussion infra Part III.B.
SEVERO & MILFORD, supra note 6, at 352.
Id. at 355.
Id. at 352, 355.
Hubbard, supra note 4, at 984.
Id. at 984-85.
SEVERO & MILFORD, supra note 6, at 360-61.
Id. at 361.
Id. at 366.
Id.
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the part of the VA, conducting non-studies of the effects of Agent Orange
while proclaiming that the evidence suggested no ill-health effects.61
III. THE ANATOMY OF A CLAIM: PROCESS AND PROBLEMS
A claim for veterans’ benefits has five elements: (1) veteran status, (2)
the existence of a disability, (3) a service-connection of the disability, (4) the
degree of disability, and (5) the effective date of the disability.62 This
Article focuses primarily on the problems associated with the third
element—service-connection of the disability. For a veteran who has lost a
limb in combat, proving service-connection is generally not a problem. The
injury is obvious, the medical need is urgent, and there is typically no
question as to when or how the injury occurred. But for veterans with nonapparent disabilities, the task of proving service-connection can be
daunting.63 The fact that deafness, PTSD, cancer, diabetes, or other like
ailments cannot be seen makes it difficult for veterans and their medical
doctors to pinpoint exactly when they originated.64 It naturally follows that
a veteran may not be able to demonstrate that his latent or non-apparent
disability was the result of his military service and, therefore, is
compensable.
A. Process
Although subsequent disability and income-support programs were
inspired by, and modeled after, veterans’ programs, the two have
significantly diverged in their development.65 The veterans’ benefit system
was adapted from what Professor Richard E. Levy calls a “charity” model of
government benefits.66 This model is derived from moral obligation, rather
than legal entitlement, and, despite its best intentions, the system has
61. The Story of Agent Orange, THE U.S. VETERAN DISPATCH STAFF REPORT
(1990), http://www.usvetdsp.com/agentorange.htm. To determine whether or not
there was a connection between Agent Orange and the diseases veterans complained
of, the government contracted with the very chemical companies that created the
defoliant to conduct the etiological studies. Id. Not surprisingly, no such
connections were found. See SEVERO & MILFORD, supra note 6, at 361-71.
62. D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West,
13 Vet. App. 546, 548 (2000).
63. Hubbard, supra note 4, at 1000.
64.Sandra Murphy, A Critique of the Veterans Administration Claims Process, 52
BROOK. L. REV. 533, 548 (1986) (commenting that the proof problems encountered
by veterans are not unlike those encountered by common-law tort plaintiffs who
have to establish cause in fact).
65. Hubbard, supra note 4, at 979-80; see also Richard E. Levy, Of Two Minds:
Charitable and Social Insurance Models in the Veterans Benefits System, 13 KAN.
J.L. & PUB. POL’Y 303 (2004).
66. Levy, supra note 65, at 303.
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deprived veterans of the traditional safeguards found in other areas of law.67
As a result, disability determinations for veterans have had a tendency to be
ad hoc and arbitrary.68 By contrast, the model followed for civiliandisability claims, the “social insurance” model, is viewed as a form of social
contract, creating legal entitlements that are subject to the traditional
protections of the law.69 A third model, not discussed by Professor Levy, is
the “social justice” model. Under the social justice model, those who take
risks in pursuit of the common good are entitled to be compensated by
society if they are disabled in that pursuit.70 While it is the social justice
model for government benefits that appears to be the rationale behind the
veterans’ benefits system, it is the VA’s adherence to the charity model that
seems to cause problems throughout the claims process. The charity model
fails to recognize that many young people join the military with an
understanding that benefits will be provided.71 In fact, many are lured into
service with the promise of benefits. It is this uneasy mixture of moral
obligation and contractual characteristics that Professor Levy suggests
causes the greatest dissatisfaction with the veterans’ benefit administration
process.72
The process begins when a veteran takes a claim to the regional office.
The veteran will almost immediately be referred to a Veterans Service
Organization representative, who will guide the veteran through the process
of filing the claim.73 The veteran is wise to take the free assistance.
Because of statutory limitations placed on attorneys’ fees, attorneys have
historically been “frozen out” of the VA claims process.74 While such
limitations were designed to work for the benefit of veterans by protecting
them from unscrupulous attorneys, their practical effect has been to deny
veterans the right to hire an attorney unless they can find one to work for
free.75 Without the help of a Veterans Service Organization representative,
the veteran will be left standing alone against a faceless bureaucracy,
struggling through a complicated process with limited access to the
67.
68.
69.
70.
Id.
Id. at 307.
Id. at 304.
INST. OF MED. NAT. RESEARCH COUNCIL, PTSD COMPENSATION AND
MILITARY SERVICE 56 [hereinafter PTSD AND MILITARY SERVICE].
71. Levy, supra note 65, at 315.
72. Id. at 303.
73. Robert L. Rabin, Preclusion of Judicial Review in the Processing of Claims
for Veterans Benefits: A Preliminary Analysis, 27 STAN. L. REV. 905, 914-15
(1975). Examples of Veterans Service Organizations include the American Legion,
Veterans of Foreign Wars, and Vietnam Veterans of America.
74. 38 U.S.C. § 5904(a)(6) (2007); see Rabin, supra note 73, at 915-16.
75. Matthew J. Dowd, No Claim Adjudication Without Representation: A
Criticism of 38 U.S.C. § 5904(c), 16 FED. CIR. B.J. 53, 60-63 (2006).
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veteran’s service and medical records.76 Help from Veterans Service
Organizations is indispensable to the veteran who may be incapable of
developing the factual record alone and who may not know the requisite
language for recognition of benefits claims or the procedural rules for
appeals.77 In fact, as many as 25% of all appeals to the United States Court
of Appeals for Veterans Claims (CAVC) are dismissed for procedural
reasons; a statistic that would likely be much lower if more veterans were
represented by attorneys.78
Before claims can be evaluated, veterans must show that they were not
dishonorably discharged and suffer from a disability that originated “in the
line of duty.”79 After the veterans make this initial showing, the regional
office is then charged with making two determinations: whether the
disabilities are in fact service-connected; and if so, to what degree the
disabilities are compensable.80 The regional office follows a statutory
schedule that rates veteran disabilities in 10% increments.81 If the veterans
are denied service-connection, or disagree with the decision of the rating
board, the next step is to file a Notice of Disagreement, which triggers an
appeal to the Board of Veterans Appeals (BVA).82 If reversed or remanded,
the claims typically go back to the regional office for reconsideration and
may go back to the BVA on appeal.83 Only after receiving a final decision
from the BVA can the veterans hire an attorney and take the claim to the
CAVC.84
The BVA reversed or remanded more than 60% of the denials it
considered between 2000 and 2003.85 Conversely, the CAVC ruled in favor
of veterans in about 60% of the cases it considered on the merits during the
same period.86 At every level of the process, there is a high level of reversal
76. Rabin, supra note 73, at 915.
77. Reynolds Holding, Insult to Injury, LEGAL AFF., Apr. 2005, at 26, 28; see
David R. DiMatteo, Walters Revisited: Of Fairness, Due Process, and the Future of
Veterans’ Fight for the Right To Hire an Attorney, 80 TUL. L. REV. 975, 982 (200506).
78. Dowd, supra note 75, at 76.
79. Murphy, supra note 64, at 543.
80. Id.
81. Rabin, supra note 73, at 912.
82. Id. at 916.
83. David J. Lowenstein & Jack Achiezer Guggenheim, Vetting the Appellate
Standard of Review: What Was, What Is, and What Should Be the Standard of
Review Employed by the United States Court Of Appeals For Veterans Claims, 27
WHITTIER L. REV. 755, 759-61 (2006).
84. Valerie Jablow, Representing Veterans in the Battle for Benefits, 42 TRIAL
30, 31 (Sept. 2006) (providing an interview by Valerie Jablow with Ronald
Abrams).
85. Holding, supra note 77, at 30.
86. Id.
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and remand, which suggests that claims are often decided wrongly.87 Until
1988, decisions of the BVA were final, with independent review largely
unavailable.88 The Veterans’ Judicial Review Act of 1988 created the
CAVC as an Article I court in an attempt to eliminate some of the problems
caused by denying veterans review by an independent court.89
Unfortunately, the role of the CAVC remains suspect. Because it is an
Article I court, there is some speculation as to whether its determinations are
truly independent.90
Indeed, the CAVC has been the subject of vigorous dispute since its
inception. Lobbyists and legislators have disagreed as to whether
independent review is necessary in light of the non-adversarial goals of the
VA.91 The Veterans Service Organizations responsible for representing
veterans may be lobbying for their own self-interests, fearing that they will
lose influence if the process actually does work for veterans.92 Professor
James T. O’Reilly argued that the CAVC is no more than a “failed
experiment,” a “captive of a dysfunctional system,” and that the time for
tinkering with niceties has passed in favor of a complete restructuring of the
veterans’ claims process.93 There has been further disagreement regarding
the appropriate standard of review for veterans’ claims.94 The CAVC does
not hear new evidence, which presents a problem for proponents of de novo
review because veterans are not represented by attorneys until they reach the
CAVC.95 Opponents of the de novo standard fear that the factual
determinations by the CAVC will lead to a more adversarial framework
within the BVA.96 The question remains, however, how non-adversarial the
process truly is in light of the practice failures of supposedly pro-veteran
protections.
87. Id.
88. Barton F. Stichman, The Impact of the Veterans’ Judicial Review Act on the
Federal Circuit, 41 AM. U. L. REV. 855, 856-57, 857 nn.12-13 (1992).
89. Laurence R. Helfer, The Politics of Judicial Structure: Creating the United
States Court of Veterans Appeals, 25 CONN. L. REV. 155, 156 (1992).
90. Id. at 168 (stating that because Article I judges do not have lifetime tenure,
and have specialized jurisdiction, they may become the subjects of political
influence and tunnel vision).
91. Id. at 156.
92. Id. at 161-64 (crediting the Vietnam Veterans of America with being the
only Veterans Service Organization supportive of independent judicial review).
93. James T. O’Reilly, Burying Caesar: Replacement of the Veterans Appeals
Process is Needed to Provide Fairness to Claimants, 53 ADMIN L. REV. 223, 22728, 230 (2001). But see Gary E. O’Connor, Rendering to Caesar: A Response to
Professor O’Reilly, 53 ADMIN. L. REV. 343 (2001).
94. Helfer, supra note 89, at 167; see Lowenstein, supra note 83, at 755
(discussing the different standards used and proposed).
95. Lowenstein, supra note 83, at 761-63.
96. Id. at 778-80.
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B. Failed Protections
One of the chief justifications for leaving the benefits determination
process untouched is its supposedly informal and non-adversarial nature.
There are various protections in place that purportedly ensure that the
process remains pro-veteran, making adversarial procedures unnecessary. In
addition to statutory limitations on attorneys’ fees, these protections include
the alleged Benefit of the Doubt Rule and the VA duty to assist. It is not
only the complexities of the administrative process, but also the failure of
these protections that make the process cumbersome and often unfair.
The Benefit of the Doubt Rule can be summarized as follows: when the
evidence is equally balanced, issues are supposed to be resolved in favor of
the veteran.97 The law, as written, works well for the veteran and seems
more than reasonable; however, there is some question as to whether the
claimant actually receives such a benefit.98 The question here becomes
whether or not it is “at least as likely as not” that the veteran’s disability was
incurred in or aggravated by military service.99 If it is, then according to the
rule, the issue is to be resolved in favor of the veteran. However, there has
been a great deal of speculation as to whether the VA actually gives
claimants such a benefit.100 In fact, one commentator went so far as to
suggest that the VA has completely ignored the protection, reducing it to
mere boilerplate.101
One of the hallmarks of the veterans’ benefit-determination process is
the duty of the decision-maker to assist the veteran in developing
evidence.102 Because of the lack of legal representation in the early stages of
the claims process, and the possible claim preclusion that can result from an
under-developed record, this is an especially important part of the process
that needs to work effectively in order for veterans to be justly served. 103
Unfortunately, limited resources and lack of organization make the record
difficult for the claimant and the agency to develop and place extra burdens
on an agency that is already buried in a backlog.104
According to Ronald B. Abrams, former VA attorney and director of the
National Veterans Legal Services Program, “because VA managers are
evaluated in part on how many claims their offices adjudicate and how fast
the claims are adjudicated, it [is] in the best interest of the VA managers to
improperly deny claims quickly.”105 They sometimes do this by denying
97.
98.
99.
100.
101.
102.
103.
104.
105.
38 U.S.C. § 5107(b) (2000); 38 C.F.R. § 3.102 (2005).
Levy, supra note 65, at 316.
Jablow, supra note 84, at 32.
Levy, supra note 65, at 316.
Murphy, supra note 64, at 556-57.
O’Reilly, supra note 93, at 227-28, 230.
See DiMatteo, supra note 77, at 996.
Levy, supra note 65, at 317.
Jablow, supra note 84, at 32.
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claims on the very same day that they write to veterans requesting more
information.106 If the information is later provided, the claim gets reopened,
and the VA office gets a double credit for the same claim.107 This becomes
an even larger problem due to the fact that there is no incentive for the VA
regional managers to resolve claims accurately, but there are penalties
associated with resolving claims too slowly.108 Clearly, the duty to assist
places the VA in conflict with its own duty to meet budget constraints and to
defend its own denials.109 In adversarial proceedings, legal representatives
are not allowed to litigate on both sides of a case. The VA claims process
represents a significant departure from this principle by denying claimants
the right to have their own attorneys represent them in the early stages when
such representation is crucial to the claimants’ success. Indeed, many of the
problems that lead to remand and reversal at the BVA level are the result of
improper record-building at the regional office level.110 This strongly
suggests that the VA is failing veterans when it comes to its duty to assist
them in developing the facts necessary to support their claims.
These problems generate a merry-go-round of appeals and remands that
can take years to resolve; veterans often become discouraged and simply
give up.111 Surely, this cannot be what Congress or the VA intended when
they sought to create a system that would repay soldiers for their sacrifices.
In fact, “[t]here are few persons who believe that the current system for
administering these benefits is working properly[,]” but the “crazy-quilt
makeup” of the benefits administration system always seems to get in the
way of true reform.112
IV. PRESUMPTIONS IN THE CONTEXT OF VETERANS CLAIMS: A
CONGRESSIONAL CURE FOR VA FAILURES
At this point, it should be clear that the adjudication process for veterans
seeking compensation for disabilities is far from perfect. One way to
combat the flaws inherent in the current system is to use presumptions to
alleviate some of the evidentiary burdens placed on veterans.113 In simple
106. Id. at 32.
107. Jablow, supra note 84, at 31-32.
108. Holding, supra note 77, at 29-30.
109. Levy, supra note 65, at 315-16.
110. Dowd, supra note 75, at 79 (providing a statement by Professor William F.
Fox, Jr., a professor at Catholic University of America Columbus Law School and a
leading scholar of veterans’ law).
111. O’Reilly, supra note 93, at 229; see also Dowd, supra note 75, at 77-78;
William F. Fox, Jr., Deconstructing and Reconstructing the Veterans Benefits
System, 13 KAN. J.L. & PUB. POL’Y 339, 341-42 (2004).
112. Fox, supra note 111, at 339.
113. See Michael P. Horan et al., The Case of Brown v. Gardner: The First of the
Veterans’ Judicial Review Act, 4 FED. CIR. B.J. 137, 161 (1994) (“In th[e] claims
process, Congress has provided numerous legal presumptions and liberal legal
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terms, a presumption permits a conclusion or inference to be drawn from the
existence of one fact or group of facts in order to establish another fact or
group of facts.114 In the context of a veteran’s claim for disability benefits,
if the veteran suffers from a disease or disability that is covered by a
presumption, service-connection is established even though there is no
medical evidence linking the disease to the veteran’s military service.115
The use of presumptions by Congress and the VA is not a new concept.
In fact, veterans and their families are currently given the benefit of a
number of statutory presumptions throughout the claims process. For
instance, a service member who has been missing for seven years is
presumed dead; thus, enabling dependents to obtain benefits.116 All veterans
are presumed to have been in sound condition when they joined the service,
with the exception of any pre-existing conditions that are noted by a medical
examination upon entrance.117 Any such conditions that worsen will be
presumed to have been aggravated by military service.118 Currently, there
are nearly 150 disabilities that are presumptively regarded as serviceconnected under Title 38 of the United States Code.119 A number of these
have been enacted as a result of the following three pieces of legislation: the
Radiation Exposed Veterans Compensation Act of 1988, the Agent Orange
Act of 1991, and the Persian Gulf War Acts of 1995 and 1998.120
A. The Radiation Exposed Veterans Compensation Act
The Radiation Exposed Veterans Compensation Act created twenty-one
presumptions of service-connection for veterans who had been exposed to
ionizing radiation.121 In addition to dropping nuclear bombs on Hiroshima
and Nagasaki in 1945, the United States government conducted atmospheric
criteria to assist a veteran [in] establish[ing] his or her entitlement to serviceconnected disability compensation benefits.”). But see Fox, supra note 111, at 347
(suggesting that the “Scotch tape and bailing wire” approach used by Congress only
adds to the patchwork of problems at the VA and that perhaps the only way to truly
fix the VA is through a complete dismantling and restructuring).
114. BLACK’S LAW DICTIONARY 1223 (8th ed. 2004).
115. Donald E. Zeglin, Presumption of Service Connection, Mar. 7, 2006, at 1
(discussing a report prepared for the Veterans’ Disability Benefits Commission),
available
at
https://www.1888932-2946.ws/vetscommission/edocumentmanager/gallery/Documents/Reference_Materials/Presumption-Paper_37-06.pdf.
116. 38 U.S.C. § 108(b) (2000).
117. Id. § 1111.
118. Id. § 1153.
119. INST. OF MED., IMPROVING THE PRESUMPTIVE DISABILTY DECISIONMAKING PROCESS FOR VETERANS 43 (2008) [hereinafter DECISION-MAKING
PROCESS].
120. Id. at 73-81.
121. 38 U.S.C. § 1112(c) (2000 & Supp. IV 2004).
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and nuclear-weapons tests in Nevada as well as various locations in the
Pacific between 1945 and 1962.122 Approximately 210,000 service members
were involved in performing these tests, and an additional 195,000 service
members occupied Hiroshima and Nagasaki after World War II. 123 In the
line of duty, and under orders, they were exposed to atomic radiation
without the benefit of protective clothing or respiratory devices.124 Those
who took part in close proximity to the detonation of nuclear devices were
simply told to duck and close their eyes.125 Recollections of those still living
reveal that, after opening their eyes, they were able to look down at their
bodies and see their own skeletons.126 After such exposure, they were
instructed to shower and wash their clothes.127 These men have since been
referred to as atomic veterans, and their difficulties with proving the serviceconnection of various cancers led to the enactment of the Radiation Exposed
Veterans Compensation Act of 1988.128
Despite the fact that atomic veterans could not dispositively link their
own cancerous conditions to their military service, there was sufficient
evidence to show that exposure to ionizing radiation could cause those
conditions.129 Veterans who had served their country nobly and honorably
were suffering from the very conditions that were known to be caused by
exposure, yet as many as 99% of their claims for service-connected
disabilities were being denied by the VA.130 After forty-three years of study
and debate, and millions spent in tax dollars, veterans who could show that
they had served in an area where exposure was likely were finally given the
benefit of a statutory presumption of service-connection.131
B. The Agent Orange Act
Similarly, the veterans of Vietnam fought a battle that spanned decades.
Unfortunately, theirs was against a government that did not care, a VA that
did not understand, a chemical industry that feared mass tort liability, and a
society that simply wanted to forget. While little was known about the
causes of the ailments with which they were struggling, the veterans were
certain of two things—they were sick, and it was because of their service in
122. 134 CONG. REC. S4646 (1988) (statement of Sen. Rockefeller).
123. DEP’T OF VETERANS AFFAIRS, VETERANS AND RADIATION A1-5 (2004).
124. 134 CONG. REC. S4646 (1988) (statement of Sen. Rockefeller).
125. 134 CONG. REC. S4647 (1988) (statement of Sen. Simon).
126. Id.
127. 134 CONG. REC. S4646 (1988) (statement of Sen. Rockefeller).
128. See Melinda F. Podgor, The Inability of World War II Atomic Veterans to
Obtain Disability Benefits: Time Is Running Out on Our Chance to Fix the System,
13 ELDER L.J. 519, 522-23 (2005).
129. 134 CONG. REC. S4646 (1988) (statement of Sen. Rockefeller).
130. Id.
131. Id.; see 38 U.S.C. § 1112 (2007).
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Vietnam.132 While sick veterans and their families searched for answers, the
United States government denied that there were questions.133 Because of
the Feres doctrine,134 Agent Orange veterans were barred from suing the
federal government.135 This left them without a forum to develop the facts
necessary to establish causation between Agent Orange, dioxin, and military
service.136 Eventually, the veterans brought a class-action suit against the
chemical companies that manufactured and supplied the United States
government with defoliants containing dioxin,137 forcing the scientific and
academic communities to recognize their problems. The Agent Orange
litigation became the largest mass tort claim in history, giving rise to
numerous precedent-setting procedural issues unrelated to defoliants in
Vietnam.138
After twenty-one years, Congress finally took responsibility for its role
in exposing millions of Vietnam veterans to 2,4,5-T, the dioxin-loaded
component in Agent Orange that was quite possibly ‘“one of the most toxic
substances ever developed by man.’”139 Conclusive evidence of who was
exposed to herbicides, when the exposure occurred, and to what extent the
exposure could be blamed for veterans’ disabilities was still unavailable. As
a result, the Agent Orange issue became one surrounded by debate and
controversy. The Agent Orange Act was a compromise between those who
wished to compensate veterans for their ailments and those who believed
that more scientific evidence was necessary to presumptively connect those
ailments to service in Vietnam.140 The Act consisted primarily of two parts:
(1) it specifically service-connected three conditions known to be caused by
dioxin exposure, and (2) it required the VA to contract with a research
organization to determine what other health problems may also be
132. See SEVERO & MILFORD, supra note 6, at 361.
133. Id. at 361-66.
134. Feres v. United States, 340 U.S. 135, 146 (1950) (holding that the U.S. is
immune under the Federal Tort Claims Act from tort claims of veterans arising from
injuries incurred in military service).
135. See generally David Saul Schwartz, Making Intramilitary Tort Law More
Civil: A Proposed Reform of the Feres Doctrine, 95 YALE L.J. 992 (1986)
(discussing the fundamental unfairness associated with barring all intramilitary tort
claims).
136. See Lora Tredway, When A Veteran “Wants” Uncle Sam: Theories of
Recovery for Servicemembers Exposed to Hazardous Substances, 31 AM. U. L. REV.
1095, 1096 (1981) (suggesting the possibility that a veteran exposed to hazardous
substances may have a cause of action for failure to warn, notwithstanding the Feres
Doctrine).
137. See In re “Agent Orange” Prod. Liab. Litig., 635 F.2d 987 (2d Cir. 1980).
138. Vincent Robert Johnson, Ethical Limitations on Creative Financing of Mass
Tort Class Actions, 54 BROOK. L. REV. 539, 548 (1988).
139. See Tredway, supra note 136, at 1101-02 (citing In re “Agent Orange” Prod.
Liab. Litig., 635 F.2d, 989); see also SEVERO & MILFORD, supra note 6, at 366.
140. 137 CONG. REC. H2395 (1991) (statement of Rep. Burton).
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associated with such exposure and to determine whether those conditions
should be presumptively service-connected.141 The second part of the Agent
Orange Act has since become the model employed by the VA in deciding
whether to presumptively connect new disabilities to military service.142 It
gives the Secretary of Veterans Affairs broad authority to create
presumptions based on independent research conducted by the Institute of
Medicine of the National Academies (IOM).143
Unfortunately, the
methodology used by the VA in making its determinations is still unclear.144
Furthermore, statutes that create presumptions are often drafted in a way that
is deliberately ambiguous in an attempt to ensure passage of controversial
legislation.145 The end result is that legislation designed to simplify the
process for veterans ends up landing them in court anyway, fighting to
resolve issues of ambiguity and arbitrariness that they did not create.146
C. The Gulf War Acts
Veterans of the Gulf War were exposed to an untold variety of
biological and chemical agents, “including depleted uranium, anthrax, and
smoke from oil well fires.”147 This staggering stew of toxic agents left
veterans with a variety of ailments, including chronic pain and headaches,
irritable bowel syndrome, fibromyalgia, and depression.148 The combination
of symptoms suffered by Gulf War veterans has come to be known as Gulf
War syndrome; it includes short term memory loss, fatigue, twitching,
psychiatric problems, birth defects, and, perhaps most disturbing, it may be
contagious.149
141. See 38 U.S.C. § 1116 (2000).
142. DECISION-MAKING PROCESS, supra note 119, at 14; see also Mary Cabrera,
Legal Remedies for Victims of Pesticide Exposure, 1 KAN. J.L. & PUB POL’Y 113,
123 (1991) (suggesting that the Agent Orange framework could be helpful to nonmilitary victims of pesticide exposure).
143. See Irva Hertz-Picciotto, How Scientists View Causality and Assess
Evidence: A Study of the Institute of Medicine’s Evaluation of Health Effects in
Vietnam Veterans and Agent Orange, 13 J.L. & POL’Y 553 (2005), for a detailed
discussion of the scientific response to the Agent Orange mandate, including how
the IOM evaluated hundreds of studies of epidemiologic data related to illnesses
associated with exposure to the herbicide.
144. DECISION-MAKING PROCESS, supra note 119, at 14.
145. Id. at 37.
146. Id. at 37.
147. Hubbard, supra note 4, at 1001.
148. Id. at 1001-02.
149. William Brook Lafferty, The Persian Gulf War Syndrome: Rethinking
Government Tort Liability, 25 STETSON L. REV. 137, 143 (1995) (stating that the
wives and family members of Gulf War veterans are experiencing similar
symptoms).
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While it seems apparent that Gulf War syndrome is a result of serving in
the Gulf, the syndrome has not been conclusively diagnosed, and its exact
cause remains unknown.150 Because there is no evidence of chemical or
biological agents having been used in Kuwait, fingers have pointed toward
other potential causes, including experimental vaccines and nerve-agentantidote pills administered to troops in anticipation of chemical warfare.151
Despite the fact that there is no medical evidence conclusively linking
these ailments to military service, Congress took the legislative action
necessary to redress the problems of Gulf War veterans.152 The Gulf War
Acts of 1995 and 1998 have thus far been the first to employ the Agent
Orange model of contracting for research and then allowing the Secretary of
Veterans Affairs to create presumptions.153 Using the Agent Orange
framework as a starting point, these acts sought to establish guidelines for
the VA to presumptively service-connect chronic illnesses associated with
Gulf War syndrome.
The IOM has provided the VA with five
epidemiologic studies on Gulf War syndrome.154 To date, however, the VA
has yet to service-connect any Gulf War syndrome.155 While it is apparent
that Congress intended to compensate veterans suffering from Gulf War
syndrome, the VA has fallen short of that goal, suggesting that the Agent
Orange model is not the best way to provide relief for veterans suffering
from such ailments.156 This issue prompted an investigation into how the
VA decides whether to presumptively service-connect such diseases, and the
resulting report suggests that the VA’s presumptive decision-making process
150. Id. at 143-48.
151. Id. at 146-47; see also Elliott J. Schuchardt, Walking a Thin Line:
Distinguishing Between Research and Medical Practice During Operation Desert
Storm, 26 COLUM. J.L. & SOC. PROBS. 77 (1992), for an examination of the
meaning of “research” within the Department of Defense and whether administering
investigational drugs to Gulf War troops without their informed consent constituted
human research or medical practice.
152. See Joseph M. Guzzardo & Jennifer L. Monachino, Gulf War Syndrome—Is
Litigation the Answer?: Learning Lessons From In Re Agent Orange, 10 ST. JOHN’S
J. LEGAL COMMENT. 673, 677 (1995).
153. Veterans Benefits Improvements Acts of 1995 & 1998, Pub. L. No. 103-446
(codified as amended at 38 U.S.C. § 1117 (2000)); Pub. L. No. 102-277 (codified as
amended at 38 U.S.C. § 1118 (2000)).
154. DECISION-MAKING PROCESS, supra note 119 (This information is contained
within a CD that is attached to the book).
155. See id.
156. Mark Brown, The Role of Science in Department of Veterans Affairs
Disability Compensation Policies for Environmental and Occupational Illnesses
and Injuries, 13 J.L. & POL’Y 593, 594 (2005) (“[T]he VA’s approach to Agent
Orange has worked well for establishing scientifically based and politically
acceptable compensation policies for Vietnam veterans. Efforts to apply this
approach to other groups of combat veterans with possible environmental and
occupational injuries and illnesses, however, have not been successful.”).
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needs re-working if this model is to be followed.157 It is an injustice for
ailing veterans to have to wait until the VA can work out kinks before being
compensated for ailments that are likely the result of military service. For
this reason, Congress should clearly and unequivocally enact new
presumptions of service-connection, removing the burden from the VA and
eliminating the wait time for ailing veterans.
V. COMBAT VETERANS SUFFERING FROM PTSD AND HEARING LOSS
DESERVE PRESUMPTIVE PROTECTION FROM CONGRESS
“Stress and trauma can be as toxic as the hazardous . . . chemical[s].”158
While the condition known as PTSD was not recognized by the American
Psychiatric Association until 1980, the symptoms have a history that predates the VA.159 Civil War combatants were diagnosed with “nostalgia.”160
In World War I, it was referred to as “shell shock,” “combat neurosis,” and
“effort syndrome.”161 By World War II, the condition was described as
“combat fatigue,” “operational fatigue,” “old sergeant syndrome,” and
“gross stress reaction.”162 Regardless of what it was called, the symptoms
were the same: anxiety, nightmares, depression, and hyper-vigilance—all
suffered after exposure to combat-related stress.163
The American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV) defines PTSD and establishes the
criteria necessary for diagnosis. According to the DSM-IV, PTSD is an
anxiety disorder that arises when a person has been exposed to an “extreme
traumatic stressor involving . . . actual or threatened death or serious
injury.”164 Following exposure to a stressor, there are four criteria, or
characterizations, that indicate a person is suffering from PTSD.165 First, the
person’s response to the traumatic stressor must involve intense fear,
helplessness, or horror.166 Second, the person may suffer from flash-backs
or persistent re-experiencing of the traumatic event.167 Third, the person
may persistently avoid stimuli that he associates with the traumatic event,
157. DECISION-MAKING PROCESS, supra note 119, at 41.
158. Hubbard, supra note 4, at 1002.
159. PTSD AND MILITARY SERVICE, supra note 70, at 47 & n.20.
160. Id. at 78-79.
161. Id. at 36-37.
162. Id. at 43-44, 79.
163. See id. at 72 tbl.3-1; Hubbard, supra note 4, at 984-85.
164. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 463 (4th ed. 2000) [hereinafter DSM-IV].
165. Id.
166. Id.
167. Id.
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becoming numb and generally non-responsive.168 Finally, the person may
have persistent symptoms of extreme arousal or hyper-vigilance.169
Risk factors for PTSD in military populations include combat, being
wounded or injured, witnessing death, serving on graves registration duty,
being tortured or taken captive, and uncontrollable and unpredictable
exposure to stress.170 Presumably, each of these risk factors would qualify
as a stressor under the DSM-IV criteria, sufficient to cause the onset of
PTSD symptoms, yet veterans who suffer from PTSD must still demonstrate
their exposure to a qualified stressor while in the military. If injury in
combat qualifies as a stressor, then evidence that a veteran has been awarded
the Purple Heart should suffice to prove that a stressor occurred.171
Similarly, a veteran who has seen action in a theater of war is awarded a
Combat Action Ribbon or a combat device to complement his campaign
medals.172 Such an award should be more than sufficient to show that the
veteran was exposed to uncontrollable and unpredictable stress and probably
witnessed death on some level.
When the Agent Orange Act was passed in 1991, Congress was urged to
deal fully and honestly with issues relating to PTSD as well as herbicide
exposure.173 Unfortunately, the call to deal fully and honestly with issues
relating to PTSD in veterans has largely gone unanswered. According to the
VA’s Federal Register, service-connection for PTSD requires medical
evidence diagnosing the condition, a link established by medical evidence
between current symptoms and an in-service stressor, and credible
supporting evidence that the claimed in-service stressor occurred.174 It
further provides that if the veteran establishes the combat component,
personal testimony will be sufficient to show that a stressor occurred.175
Although the VA uses presumptive language, the veteran does not receive
the benefit of a presumption because of the diagnostic process employed by
the VA. The diagnostic process requires the veteran to undergo a clinical
evaluation that requires the veteran to establish and support the claim of
exposure to a stressor as a result of military service.176 In fact, Veterans
Service Organization representatives suggest that a veteran establish as
many as three stressors to ensure that their claims make it through this step
168. Id.
169. Id.
170. PTSD AND MILITARY SERVICE, supra note 70, at 76 tbl.3-2.
171. DEP’T OF DEF., MANUAL OF MILITARY DECORATIONS AND AWARDS 102-03
(Sept.
1996),
available
at
http://www.dtic.mil/whs/directives/corres/pdf/134833m.pdf.
172. Id. at 108.
173. 137 CONG. REC. S1124 (1991) (statement of Sen. Mitchell).
174. 38 C.F.R. § 3.304(f) (2005).
175. Id. § 3.304(f)(1).
176. PTSD AND MILITARY SERVICE, supra note 70, at 86-87.
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in the claims process.177 This presents a certain difficulty for someone
suffering from PTSD because it forces the individual to discuss and re-live
events that may have been purposely avoided and suppressed for years. 178
One need only consider the conditions associated with combat to recognize
that a veteran exposed to them has been exposed to a traumatic stressor: lack
of sleep, constant fear of the enemy, continuous noise, witnessing loss of
life, and grotesque sights and sounds. PTSD is a condition that goes “handin-hand with war . . . .”179 Requiring a veteran who suffers from PTSD to
prove that he has been exposed to trauma is, to say the least, redundant.
Furthermore, there is some concern regarding the objectivity of
physicians employed by the VA to make PTSD evaluations because their
“core function is to provide VBA staff with the evidentiary foundation with
which a claim for service-connected disability can be rated or denied,” not to
provide medical treatment.180 If this is the core function of evaluators,
clearly the regulatory presumption that the VA purportedly employs is not
giving veterans a presumptive benefit. If it were, the core function of the
medical evaluation would be to diagnose and treat, not to provide the VBA
with evidence of a stressor. A statutory presumption enacted by Congress
could effectively resolve this problem for veterans who have conclusively
engaged in combat and display the tell-tale symptoms of PTSD by
alleviating the burden of showing a service-connected stressor.
PTSD is not the only area where veterans are suffering without
compensation because of their inability to prove service-connection. Many
also suffer from the effects of noise, manifested in the form of hearing loss,
which may or may not result in tinnitus—a continuous ringing or buzzing in
the ears.181 Much like veterans with PTSD, veterans with auditory
disabilities are forced to bear an unfair burden as a result of inadequacies at
the VA and the military levels. A 2005 IOM study indicated emphatically
that the problem for these veterans was the result of inadequate audiometric
testing upon entrance to and separation from the military.182 Without such
documentation, it is “nearly impossible to determine” whether a veteran’s
hearing loss resulted from exposure to noise during military service or later
in life.183
The types of noise exposure that are known to cause hearing loss,
however, are consistent with the military experience. For instance, the IOM
found that the impulse noise associated with gunfire and other explosive
177. Interview with Kay Van Drunen, Representative, Vietnam Veterans of Am.
(Nov. 10, 2007).
178. See, e.g., Vaughn v. Principi, 18 Vet. App. 425, at *1 (2003).
179. Hubbard, supra note 4, at 984.
180. PTSD AND MILITARY SERVICE, supra note 70, at 89.
181. INST. OF MED., NOISE AND MILITARY SERVICE: IMPLICATIONS FOR
HEARING LOSS AND TINNITUS 117 (2006).
182. Id. at 190-91.
183. Id. at 15.
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devices is capable of causing acoustic trauma sufficient to cause significant
hearing loss.184 Additionally, the IOM indicated that intermittent and
continuous noise exposures, also common in the military, are sufficient to
cause permanent loss of hearing.185 According to the study, “[p]eople
serving in the military, especially those in areas of combat, will at some
point be exposed to high-intensity noise of various types.”186
Claims for hearing loss and tinnitus represent the fourth leading reason
for all disability claims filed with the VA, and these numbers are on the rise
as men and women return from Iraq and Afghanistan.187 The fact that
auditory evaluations have been inconsistent makes it very difficult for
veterans with hearing impairments to prove when the disabilities originated,
making this a classic case for legislative action in the area of presumptive
service-connection.
An examination of the history of presumptions and the rationales behind
their use reveals that both veterans and the VA can benefit from
presumptively service-connecting certain disabilities. The delayed onset and
proof problems associated with PTSD and auditory disabilities are no
exception. There are several compelling reasons for employing the use of
presumptions in the context of veterans’ claims for PTSD and hearing loss,
despite concerns to the contrary.
First, the use of statutory presumptions promotes fairness by simplifying
and streamlining proceedings.188 There is no reason why men and women
who suffer from disabilities as a result of honorably serving their Nation
should be the subjects of ad hoc determinations and arbitrary ratings.
Presumptions of service-connection for these conditions will provide
uniformity, ensuring that all veterans are treated the same.189
The conditions associated with combat clearly produce stressors
sufficient to establish the DSM-IV criteria for PTSD and the acoustic trauma
that causes hearing loss and tinnitus, such as gunfire and explosions, are
evident in a war zone. Fears that such presumptions will open the floodgate
for fraudulent claims are unfounded. Such concerns ignore the reality that
veterans applying for benefits face a much more stringent process today than
they did in the early days of veterans’ affairs. To gain the benefit of a
presumption, veterans will still have to establish a diagnosis of current
disability. It is obvious that medical professionals today have a much
clearer understanding of latent diseases than they did following the Civil
War, when fraudulent claims were rampant. Furthermore, for a veteran to
184. See id. at 37-38.
185. See id. at 38-39.
186. Id. at 15.
187. Theresa Y. Schulz, Troops Return with Alarming Rates of Hearing Loss, 20
HEARING
HEALTH
(Fall
2004),
available
at
http://www.drf.org/hearing_health/archive/2004/fall04_troopsreturn.htm.
188. DECISION-MAKING PROCESS, supra note 119, at 38.
189. See generally ANALYSIS OF PRESUMPTIONS, supra note 32.
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gain the benefit of the two proposed presumptions, the veteran would also
have to prove that he or she served as a combatant. Because the majority of
men and women veterans serve in support roles, the percentage of those who
would actually qualify for the presumption would not be overwhelming.190
The same fact should also ameliorate cost concerns. “About 23.5 million
veterans live in the United States . . . , accounting for about 8 percent of the
U.S. population.”191 Of those veterans, only 11.2 % are receiving
compensation for service-connected disabilities.192 The number of war-time
veterans is also projected to decrease significantly over the next several
years because the number of veterans dying from old age exceeds the
number separating from service.193 These demographics suggest that the
cost of adequately compensating veterans is relatively small compared to
other government expenditures. For instance, in fiscal year 2005, over
13,000 earmarks were inconspicuously passed into law, costing United
States taxpayers nearly $18 billion.194 That figure nearly equals the dollar
amount spent compensating disabled veterans from World War II, Korea,
Vietnam, the Gulf War, and the War on Terror combined in fiscal year
2006.195
The U.S. government has spent millions researching conditions that
logically and presumably originated as a result of war.196 Congress needs to
put an end to spending that is designed to create roadblocks to compensating
those who have borne the battle. Instead, “[w]e must be prepared to meet
their needs[,] . . . to treat and compensate them for their wounds, whether
those wounds are apparent or hidden, physical or psychological. And,
although the costs are sometimes high, we must be prepared to pay them, for
it is what our veterans have earned.”197 It is time for the VA and the
Department of Defense to recognize that “‘caring for [veterans] on their
190. See CONG. BUDGET OFFICE, STRUCTURING THE ACTIVE AND RESERVE
ARMY FOR THE TWENTY-FIRST CENTURY 10 (Dec. 1997), available at
http://www.cbo.gov/ftpdocs/3xx/doc301/army-21c.pdf.
191. VETERANS’ DISABILITY BENEFITS COMM’N, HONORING THE CALL OF DUTY:
VETERANS’ DISABILITY BENEFITS IN THE TWENTY-FIRST CENTURY 45 (Oct. 2007),
available
at
http:/www.vetscommission.org
/pdf/FinalReport10-11-07compressed.pdf [hereinafter H ONORING THE CALL].
192. Id. at 46 tbl.3-2.
193. Id. at 50-51.
194. President George W. Bush, State of the Union Address (Jan. 23, 2007),
available at http://www.whitehouse.gov/news/ releases/2007/01/20070123-2.html.
195. HONORING THE CALL, supra note 191, at 46-48 tbls.3.2 & 3.3. With a total
of 2,130,259 war-time veterans receiving an average of $9,381 each per year, the
compensation cost is $19.9 billion. Id. This figure includes all war-time veterans,
not just those who actually saw combat. See id.
196. See U.S. Veterans Dispatch Staff Report, The Story of Agent Orange, U.S.
VETERANS
DISPATCH,
Nov.
1990,
available
at
http://www.usvetdsp.com/agentorange.htm.
197. 137 CONG. REC. S1128 (1991) (statement of Sen. Daschle).
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return is a part of the cost of war and needs to be built into the cost of
war.’”198 Surely, the cost of running an inefficient bureaucracy is greater
than the cost of ensuring that veterans are compensated for injuries sustained
on the battlefield.
Statutory presumptions for combat veterans with PTSD and auditory
disabilities will also eliminate the time and expense associated with
establishing facts by direct evidence that are already highly likely to be
accurate based upon the existence of facts that have already been
established.199 It is highly likely that a veteran who saw action in combat
was exposed to conditions likely to cause PTSD or hearing loss. A combat
device proves not only that a veteran served in a theater of war, but also that
the veteran saw action.200 Additionally, such presumptions will eliminate
the monetary and emotional costs of numerous, lengthy appeals by taking
veterans off of the appeal-remand-appeal merry-go-round. If presumptions
are enacted, it will not be necessary for veterans and the VA to split hairs
over whether these disabilities originated in service. By effectively
removing that issue from VA consideration, the process will be considerably
more efficient for both the veteran and the VA.
Another reason to expand the use of statutory presumptions for serviceconnection is that they alleviate the veteran’s burden of gathering evidence
that is more easily and accurately accessible to the government.201 Without
the assistance of an advocate from a Veterans Service Organization, veterans
do not have access to their own medical records, which often contain the
only available evidence that can link the veteran’s current disability to
military service.202 This makes it extremely difficult for veterans to
establish the medical nexus required to service-connect their disabilities.
While this information is largely unavailable to the veteran applying for
benefits, it is readily accessible to the VA.
198.Barbara Solow, Urgent Care: VA Leaders in North Carolina Say Advances in
Treatment Mean They are Ready to Help Returning Soldiers with Post Traumatic
Stress Disorder, THE INDEP. WKLY., Dec. 15, 2004, at 2 (quoting a statement made
by Dr. Harold Kudler, who works in the Veterans Administration healthcare
system),
available
at
http://www.indyweek.com/gyrobase/content?oid=oid%3A23288 .
199. See DECISION-MAKING PROCESS, supra note 119, at 70-73 (describing how
presumptions promote administrative efficiency and make the claims process less
complicated and less expensive).
200. DEP’T OF DEF., supra note 171, at 108. To be recommended to receive a
combat device, the veteran must have actually engaged a hostile enemy. Id.
201. See Dowd, supra note 75, at 64.
202. Rabin, supra note 73, at 915 (explaining that because the veteran’s medical
service record contains “a complete rundown on every reported health problem
experienced . . . while in service,” crucial aspects of the case will turn on the
record’s contents).
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Presumptions of service-connection have been justified in the past by
the difficulties associated with establishing a nexus between a current
disability and service in the military.203 There are a number of reasons why
it is difficult for combat veterans to establish that nexus. For instance,
because wartime medical records have a tendency to be hurried or
incomplete, they may be inaccurate or even non-existent.204 Disabilities,
such as PTSD and hearing loss, may not manifest until years after discharge,
when the veteran may not remember dates, times, and details.205 Another
effect of the passage of time is that it casts doubt on the validity of claims
when intervening events could have caused the disabilities. If the VA is to
correctly apply the Benefit of the Doubt Rule, these difficulties should not
present problems. However, because the rule is frequently ignored, greater
measures need to be taken to ensure that the ends of justice are met.
Furthermore, veterans who may be suffering from PTSD are reluctant to
report to medical staff during service because they fear the repercussions of
tainting their service records with notations of mental anguish or
instability.206 Presumptions will encourage veterans and the public to accept
the fact that stress-related disorders and auditory disabilities are casualties of
war, not markers of personal weakness. Enacting presumptions will send a
message to veterans that they are not alone, encouraging them to seek the
help that they need.
Despite the insufficiency of medical evidence, a “high incidence of
certain conditions among young men suggests that those conditions were
attributable to military service.”207 The National Institute of Mental Health
reports that just 3.5 % of adults in the general population suffer from PTSD,
compared to 19% of Vietnam veterans.208 Such a significant disparity
suggests that PTSD in veterans is attributable to military service.
In the past, veterans’ legislation has been the subject of political fancy
and popularity.209 “[E]ven after ‘popular’ wars, veterans have had to
struggle against a government that has mostly sought to limit its financial
liability, more like a slippery insurance company than a polity rooted in the
203. ANALYSIS OF PRESUMPTIONS, supra note 32, at 7.
204. See id. at 5.
205. See Rabin, supra note 73, at 914-15.
206. See Solow, supra note 198, at 2; see also Hubbard, supra note 4, at 1003
(citing a recent study that suggested that 60% of the Iraq War veterans who tested
positive for PTSD did not seek treatment).
207. ANALYSIS OF PRESUMPTIONS, supra note 32, at 15.
208. National Institute of Mental Health, The Numbers Count: Mental Disorders
in
America,
http://www.nimh.nih.gov/health/publications/the-numbers-countmental-disorders-in-america.shtml#PTSD (last visited May 23, 2009).
209. Jesse Wm. Barton, American Son, OR. ST. B. BULL., Mar. 2007, at 78
(“[C]onsider the last Congress’s initial decision against fully funding the Defense
and Veterans Brain Injury Center. When Congress first faced the choice between
funding its “earmarks” and funding the center, the center lost.”).
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idea of justice and fair reward.”210 Veterans make unthinkable sacrifices for
the Nation. It is simple justice to see that they are compensated if disabled,
regardless of how complex or uncertain the origin of their disabilities.
VI. CONCLUSION
Support for veterans is often asserted, but rarely realized. Presumptions
lend support by moving veterans beyond the claims process and into the
healing process. Combat veterans have stood in the line of fire and looked
the enemy in the eye. They bear the scars of battle both on their bodies and
on their hearts. The men and women of our Nation who are willing to step
into the line of fire at a moment’s notice; to do what they are told against all
human instinct; to make the ultimate sacrifice for the country they believe
in; to fight for liberty and honor and human rights are indeed few and far
between. They are the sons and daughters of America, and they deserve
better. They deserve more than a handshake and a heroes’ welcome. They
deserve to be compensated for the scars that they must carry. They deserve
a claims process that recognizes their sacrifices and allows them to maintain
their dignity. They deserve to be more than the subjects of political will. To
meet this end, Congress should enact presumptions of service-connection for
combat veterans who have been diagnosed with PTSD or hearing loss. The
essential problem for our veterans is that the VA is broken. While it
certainly cannot be fixed overnight, expanding presumptions for serviceconnection is a step toward a more simplified system that fairly and
efficiently compensates veterans disabled by service to their country.
KRISTI A. ESTRADA*
210. SEVERO & MILFORD, supra note 6, at 16.
* Kristi A. Estrada received her JD from Thomas M. Cooley Law School in
January 2009. The author would like to give special thanks to Steve, Kevin, and
especially her Father…heroes all.