TESTIMONY OF JOY J. ILEM ASSOCIATE NATIONAL LEGISLATIVE DIRECTOR OF THE DISABLED AMERICAN VETERANS BEFORE THE HOUSE VETERANS’ AFFAIRS COMMITTEE SUBCOMMITTEE ON BENEFITS April 13, 2000
Mr. Chairman and Members of the Subcommittee: On behalf of the more than one million members of the Disabled American Veterans (DAV) and its Women’s Auxiliary, I thank you for this opportunity to express the views of the DAV regarding the Department of Veterans Affairs (VA) management of hepatitis C claims and several bills on which the Subcommittee invited testimony. Our discussion will encompass the provisions of the following legislation: H.R. 1020, to establish a presumption of service connection for the occurrence of hepatitis C in certain veterans; H.R. 3816, to provide that a stroke or heart attack that is incurred or aggravated in the performance of duty while performing inactive duty for training by a member of a reserve component shall be considered to be service-connected for purposes of benefits under laws administered by the Secretary of Veterans Affairs; H.R. 3998, to provide that the rate of compensation paid by the VA for the service-connected loss of one or both breasts due to radical mastectomy shall be the same as the rate for the service-connected loss or loss of use of one or more creative organs; and H.R. 4131, a bill to increase, effective December 1, 2000, the rates of disability compensation for veterans with service-connected disabilities, the rates of dependency and indemnity compensation (DIC) for survivors of certain disabled veterans, and the clothing allowance. HEPATITIS C CLAIMS Hepatitis C virus (HCV) is a potentially life-threatening disease that affects the liver and can lead to cirrhosis, liver cancer, and death. It is a slowly progressive disease advancing over a 10-40 year period. HCV, identified in 1989, is transmitted through blood contact and develops into a chronic infection in approximately 85 percent of the population infected. Currently, there is no cure or vaccine available to immunize individuals against the virus. Those at risk include individuals who may come in contact with infected blood, instruments, or needles, such as health care workers or laboratory technicians, long-term hemodialysis patients, IV drug users, and persons who received a blood transfusion or organ transplant before July 1992. HCV may also be transmitted through unprotected sex with multiple partners, tattooing or body piercing in unsanitary conditions, or using the razor or toothbrush of an infected person. The American Liver Foundation (ALF) reported 1 in 10 United States veterans are infected with HCV, a rate five times greater than the 1.8 percent infection rate realized among the general population. In June of 1999, Adrian M. Di Bisceglie, M.D., FACP, professor of internal medicine, Saint Louis University, and medical director of ALF, testified before the House Government Reform Subcommittee on National Security, Veterans’ Affairs, and International Relations and stated, "…there is the likelihood that veterans have added risks related to exposure to infected blood on the battlefield or through blood transfusions received during combat casualty care." Unfortunately, many veterans who have hepatitis C are unaware that the disease affects them, because hepatitis C usually causes no symptoms until serious liver damage manifests. The DAV commends the outreach effort undertaken by VA to identify and treat veterans infected with HCV. However, more needs to be done to ensure all the needs of this veteran population are adequately addressed, specifically in terms of adjudication of their claims for service connection for residuals of chronic hepatitis C infection. Increased numbers of veterans are being diagnosed with HCV and seeking treatment and disability compensation for the disease. Unfortunately, we have had numerous reports from DAV National Service Officers around the country indicating the VA is inappropriately denying many of these claims on the basis that they are not well grounded. The United States Court of Appeals for Veterans Claims has held that all claims under title 38, United States Code, must be well grounded. Historically a well-grounded claim was a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden on a claimant imposed by 38 U.S.C. § 5107(a). However, based on the Court’s jurisprudence, in order for a claim to be well grounded, there must be (1) competent medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. The Veterans Benefit Administration (VBA), in a recent letter to House Veterans’ Affairs Committee Ranking Member Lane Evans, indicated that once a veteran submits evidence confirming a diagnosis of HCV, the first requirement for a well-grounded claim is accomplished. For the second requirement to be fulfilled, VBA stated that a veteran must provide evidence of an acute hepatitis C infection in service or evidence of "the presence of a risk factor for hepatitis C in service to which the veteran was exposed." (Emphasis added.) Under the provisions of title 38, Code of Federal Regulations (C.F.R.) section 3.340(d), lay or other evidence may be used to establish the occurrence of a risk factor in service where such a risk factor is related to combat. The third requirement necessary is a medical statement from a physician indicating a link between the in-service disease and the current disability. (Emphasis added.) VBA lists blood transfusions, hemodialysis, and working in a health care occupation as plausible risk factors in claims for service connection for hepatitis C. They note that these certain risk factors "…are both plausible as a cause of hepatitis C infection and capable of substantiation by documentation in the service records." I have provided a synopsis of two recent cases sent from DAV field representatives demonstrating the obstacles veterans face in meeting the well-grounded requirement in claims for service connection for hepatitis C. Case 1
Case 2
It appears these claims for service connection for hepatitis C have been erroneously denied as not well grounded based on a lack of evidence showing an in-service occurrence of the disease. In each of the noted cases, known risk factors were not even addressed by the rating specialist in the rating decisions of those claims. The nature of HCV¾ specifically its slow progression over a 10-40 year period¾ coupled with the absence of symptoms until serious liver damage is detected complicates the VA adjudication process concerning these claims for direct service connection. Veterans filing claims for hepatitis C have generally been discharged from the service for many years and have only recently been diagnosed with HCV. It is unlikely to see a diagnosis of chronic hepatitis C infection in the veteran’s service medical records because the onset of infection goes unrecognized since symptoms are generally not severe enough to require medical attention. A good example of this would be veterans who received blood transfusions for combat related injuries in Vietnam and nurses and medics who cared for the sick and injured who have only just recently been diagnosed with liver disease due to HCV. VBA stated in a recent letter to Representative Lane Evans concerning adjudication of HCV claims that two letters have been sent to the field to help guide decision makers in processing these types of claims. VA Letter 211B (98-110) clearly indicates that when there is evidence that a veteran was exposed to a known risk factor for hepatitis C in service such as a blood transfusion prior to 1992, hemodialysis, or employment in a health care occupation, a claim that hepatitis C resulted from one of these risk factors in service would be a plausible nexus for the purpose of a well-grounded claim. The following synopsis was provided in the letter as an example of a well-grounded claim.
VBA indicates the fact that the veteran was a health care worker during service establishes that the veteran was exposed to a risk factor during service that could be the cause of HCV infection and subsequent complications and that this is sufficient to make the claim plausible. The VA admits there are inconsistencies in processing claims for service connection for chronic hepatitis C infection and indicates that they are striving to improve performance in that area. However, it is imperative that VA closely monitor these cases to ensure equitable and uniform decisions are made on claims for service connection for hepatitis C. We recommend that VA amend title 38 C.F.R. § 3.303(d) to expressly include hepatitis C under its provisions that authorize service connection in the absence of direct proof where a cause-and-effect relationship is shown between service-related factors and disease diagnosed after service. The relatively recent identification of this disease as well as the silent nature of HCV in most cases prevented its detection during military service and for many years following; therefore, it is reasonable to expect direct evidence of service incurrence will be lacking. Nonetheless, where HCV is diagnosed after service, the veteran’s service involved the risk factors for HCV, and no other cause is shown, service connection should be deemed proven by circumstantial evidence. Additional concerns about adjudication of HCV claims include inappropriate evaluations being assigned in cases where service connection for residuals of hepatitis C has been established. Case 3
The physical effects of HCV are devastating and often require the veteran to undergo extensive medical treatment and drug therapy regiments. Some veterans are unable to work because of chronic symptoms such as fatigue, gastrointestinal problems and severe depression associated with the disease. The VA must ensure that evaluations assigned in these cases are consistent and that veterans are adequately compensated for residual effects of HCV. We are aware that VBA is awaiting final regulations to be published to provide for the consistent processing of claims based on chronic hepatitis C infection. However, until final regulations are published, VBA is obligated to make sure rating specialists clearly understand and carry out the instructions outlined in its letters issued to the field concerning the processing of their claims. Unfortunately, we have heard a report of a case of a child suffering with the advanced residuals of HCV believed to be a result of a blood transfusion from her parent. The parent, who is a veteran, is suffering advanced stages of liver disease due to hepatitis C resulting from a blood transfusion received during active service. HCV is also known to be sexually transmitted and veterans’ spouses may also be unwittingly exposed to the hepatitis C virus and experience the liver disease as well. We recognize the far reaching and devastating effects of this incurable disease not only on former servicemembers but their spouses and children as well. We are sympathetic to the spouses and children of veterans who are service connected for HCV and who have contracted the virus themselves. The Government has an obligation to compensate them. This compensation would be paid to civilian dependents that contracted their diseases in civilian life rather than veterans suffering from service-connected disabilities, however. Consistent with our view on compensating dependent children with spina bifida, we believe such a program outside the scope of the VA’s mission and should be authorized and administered under Social Security or some more appropriate Government agency. H.R. 1020 Congressman Snyder introduced H.R. 1020 for himself and several cosponsors. The "Veterans Hepatitis C Benefits Act of 1999" would amend title 38, United States Code, to establish a presumption of service connection for the occurrence of hepatitis C in certain veterans. The DAV appreciates the introduction of H.R. 1020, and we support its goal. However, we are concerned that any pay-as-you-go offset will be taken from other veterans’ programs. We believe legislation would be unnecessary if VA would make a more meaningful effort to improve adjudication of these claims. Additionally, under the circumstances of hepatitis C infection, direct service connection is more appropriate than presumptive service connection. Where evidence of service incurrence or exposure to a known cause exists, direct service connection is in order. Where disabilities manifest after service and a basis to assume service onset exists but proof is generally lacking, the law may allow the presumption of service connection. For those reasons, the Independent Budget includes a recommendation that the Secretary of Veterans Affairs amend 38 C.F.R. § 3.303(d) to expressly include provisions that will assure service connection is granted where a veteran suffering from hepatitis C is shown to have been exposed to a risk factor during service. We certainly have no objection to enactment of H.R. 1020 if there is no offset against other veterans’ benefits. H.R. 3816 Congressman Stupak and several cosponsors introduced this bill to provide that a stroke or heart attack that is incurred or aggravated in the performance of duty while performing inactive duty for training by a member of a reserve component shall be considered to be service connected for purposes of benefits under laws administered by the Secretary of Veterans Affairs. Section 101(24) of title 38, United States Code, provides in part that any period of inactive duty training during which the individual concerned was disabled or died from an injury [shall be considered to be an injury] incurred or aggravated in line of duty. This bill seeks to clarify the term "injury" as specifically related to the above noted statute by adding the following new sentence: "For purposes of this paragraph, a cardiovascular accident or an acute myocardial infarction incurred in performance of duty during inactive duty training shall be considered to be an injury incurred or aggravated in line of duty." Based on the known strenuous physical rigors associated with military training, it is appropriate that a resulting stroke or heart attack due to such physical stresses should be service connected. The DAV has no mandate from our membership on this measure. However, its purpose is a beneficial one and we do not object to its favorable consideration. H.R. 3998 The DAV National Convention, assembled in Orlando, Florida, August 21-25, 1999, voted to support DAV Resolution No. 102, to amend section 1114(k) of title 38, United States Code, to add the anatomical loss of a female mammary gland. Currently, service connection is available for the surgical removal of one or both breasts under 38 C.F.R. § 4.116, Diagnostic Code 7626. Section 1114(k) of title 38 United States Code, and section 3.350(a) of 38 C.F.R. grant special monthly compensation (SMC) to a veteran who, as a result of a service-connected disability, suffers the anatomical loss of use of one hand, one foot, both buttocks, one or more creative organs; blindness¾ one eye having light perception only, deafness¾ both ears having the absence of air and bone conduction; and complete organic aphonia with constant inability to communicate by speech. Current VA regulations do not authorize SMC payments, which are payable in addition to the basic rate of compensation on the basis of degree of disability, for veterans who have lost a breast due to radical or modified mastectomy. Traditionally, Congress has provided service connection for medical conditions incurred or aggravated during military service based on the loss of earning capacity. However, as noted by Congressman Lane Evans in his March 9 "Dear Colleague" letter, "…there has long been recognition that certain disabilities impact the veteran in non-economic ways such as a loss of physical integrity. The special monthly compensation payment for conditions listed in 38 U.S.C. § 1114(k) include recognition of non-economic losses such as loss of physical integrity." The breast is a distinctive characteristic and fundamental feature of female anatomy. The female mammary gland is an essential post partum accessory organ and an integral part of the female reproductive system. There is a significant hormonal interrelationship between the female mammary glands and the female reproductive system. Severe physical disfigurement and complete loss of use is a common result of the removal of the female mammary gland and generally requires reconstructive surgery or utilization of prosthesis to replace the amputated organ. Women veterans who are entitled to service connection for residuals of a radical mastectomy are no less deserving of SMC payments under 38 U.S.C. § 1114(k) than other veterans who suffer the effects of disabilities authorized under this statute. The DAV agrees with the recommendation made by the VA Advisory Committee on Women Veterans in its 1998 Annual Report: "…a mastectomy involves a loss comparable to those covered in the law and should qualify for special monthly compensation k-award." We strongly believe veterans who have suffered severe physical disfigurement and complete loss of one or both breasts due to the effects of radical mastectomy have been unfairly denied this additional payment for these losses. Mr. Chairman, we commend Representative Lane Evans, along with the 22 original cosponsors of H.R. 3998, for introduction of this legislation. We believe this bill will provide for gender equity in recognition of the service-connected losses suffered from the devastating surgical effects of radical mastectomy. We appreciate the Subcommittee’s serious consideration of this bill. H.R. 4131 House Veterans’ Affairs Committee Chairman Bob Stump introduced H.R. 4131, with Congressmen Evans, Quinn, and Filner, cosponsoring this bill to increase the rates of disability compensation, dependency and indemnity compensation (DIC), and clothing allowance. This legislation would adjust these benefit rates effective December 1, 2000, to reflect the rise in the cost of living. To fulfill their purpose, veterans’ benefits must be adjusted periodically to keep pace with increases in the cost of living. The DAV supports H.R. 4131 and is appreciative of the annual increases Congress provides. However, as recommended by the Independent Budget, ancillary benefits for severely disabled veterans and their dependents should also be included for annual raises. The value of these benefits erode to the extent they are not adjusted every year to offset inflation. Any erosion due to inflation has a direct detrimental impact on recipients, especially those on fixed incomes. To be effective¾ and accomplish the purpose for which they are intended¾ ancillary benefits such as educational assistance for survivors and dependents, automobile and adaptive equipment grants, housing grants and home adaptation grants for seriously disabled veterans need to be adjusted automatically each year to keep pace with the rise in the cost of living. For the same reasons that annual increases are warranted for compensation, DIC, and clothing allowance, they are warranted for these ancillary benefits. We recommend Congress enact a cost-of-living adjustment (COLA) for all compensation benefits sufficient to offset the rise in cost of living. DAV is opposed to the rounding down of COLA’s in veterans’ benefits to the next lower dollar amount and request a repeal of the provision that authorizes such action. We also urge the Subcommittee to consider instituting a process to include all these benefits for service-connected veterans and their dependents or survivors in an annual cost-of-living bill. CONCLUSION We hope that our statement is helpful to you. These bills all have beneficial provisions that would improve benefits and services for disabled veterans and their eligible dependents and survivors. The DAV appreciates the Subcommittee’s interest in these issues and its efforts to make these improvements to better serve our Nation’s veterans. Back to Witness List |