The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

December 2003
VETERANS BENEFITS
 
 

Presumptive Service-Connected Lists

BY LEONARD J. SELFON, VETERANS BENEFITS PROGRAM

Pursuant to the Agent Orange Act of 1991, the U.S. Department of Veterans Affairs entered into an agreement with the National Academy of Science's (NAS) Institute of Medicine (IOM) to review the scientific associations between exposure to herbicides used in Vietnam during the war and diseases suspected to be the result of such exposure. IOM submits reports every two years.

The law also provides that whenever the VA determines, based on sound medical and scientific evidence, that a positive association (the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure to herbicidal agents, the VA will publish regulations establishing presumptive service connection for that disease, which means that veterans do not have to provide medical evidence of a relationship between exposure and the subsequent onset of the disease in question. The Secretary's determination must be based on consideration of the NAS IOM reports and all other available sound medical and scientific information and analysis.

Between July 1993 and April 2001, the VA issued regulations that established presumptive service connection for several diseases where the veteran served in the Republic of Vietnam. These include: chloracne, type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. If a veteran who was exposed to an herbicide in service subsequently develops one of the presumptive diseases, the VA will presume that the disease was caused by exposure to an herbicidal agent for purposes of establishing entitlement to service-connected benefits.

In its four previous biennial reports, the NAS IOM determined there was
"inadequate/insufficient" evidence to determine whether an association exists between exposure to an herbicide and the subsequent development of leukemia. Following the last NAS report in 2001, the VA asked that NAS IOM review the possible association between exposure to Agent Orange and a particular form of leukemia, chronic lymphocytic leukemia (CLL). In its 2002 update, the NAS IOM concluded there is sufficient evidence (in the form of several scientific studies) of such an association. After considering all of the evidence, VA secretary Anthony Principi determined there is a positive credible association between exposure to herbicidal agents used in Vietnam and the subsequent occurrence of CLL and that a presumption of service connection for CLL is warranted.

Consequently, on October 16, the VA published a final regulation to add CLL to the list of presumptively service-connected diseases incurred as the result of exposure to herbicides used in the Vietnam War. With respect to the effective dates of awards of service connection for CLL where the original claim for benefits was filed before the effective date of the regulation (October 16, 2003), the VA has determined the provisions of a 1991 Stipulation and Order in Nehmer v. U.S. Veterans Administration (a class action brought by Vietnam veterans which had the effect of requiring the VA to pay retroactive benefits for certain diseases related to exposure to Agent Orange where the initial claim was filed before the regulations that added those diseases to the presumptive list became effective) does not apply to CLL awards.

In this respect, the VA believes because the Agent Orange Act of 1991 had a sunset provision that extended the Act until September 30, 2002, the Nehmer stipulation only applies to diseases added to the presumptive list before September 30, 2002. Nevertheless, in December 2001, Congress extended the VA Secretary's authority to add new Agent Orange-related diseases to that list until September 30, 2015. Accordingly, VVA and other veterans service organizations are considering a legal challenge to the VA's decision in this respect in federal court.

In a related matter, Secretary Principi has determined that cirrhosis of the liver, a degenerative scarring of the liver commonly associated with alcohol abuse and advanced hepatitis C, should be added to the list of diseases that are presumed to be service connected for all former prisoners of war. In recent studies, the NAS IOM has determined there was a significantly increased incidence of cirrhosis in World War II and Korean War veterans, regardless of the levels of alcohol consumption. The effective date of the regulation that added cirrhosis to the POW presumptive list is July 18, 2003. Other diseases that are presumptively service-connected to
POW internment include: avitaminosis; beriberi and beriberi heart disease; chronic dysentery; dysthymic disorder (depression); helminthiasis; irritable bowel disease; malnutrition; frostbite residuals; pellagra and other nutritional deficiencies; peptic ulcer disease; peripheral neuropathy; post-traumatic osteoarthritis; psychosis; and anxiety neurosis.

COMBAT-RELATED SPECIAL COMPENSATION

The National Defense Authorization Act for Fiscal Year 2003 established a new veterans benefit administered by the Department of Defense, not the VA. The benefit provides for a special payment to certain military retirees to compensate for some or all of their military retired pay that had been waived in order to receive VA disability compensation benefits for their service-connected disorders.

Eligibility for Combat-related Special Compensation (CRSC) requires 20 or more years of military service; current status as a retiree; current entitlement to retired pay (even if reduced due to receipt of VA compensation); and current VA service-connected disability compensation if the veteran has been awarded a Purple Heart and has a disability rating of 10 percent or higher; or who has current combat-related disability(-ies) that would carry a combined disability rating of 60 percent or higher.

The CRSC program became effective on May 31, 2003, with benefits payable on June 1. CRSC is not considered to be military retirement pay and is currently exempt from federal income taxes.  Like VA compensation, however, CRSC is subject to U.S. Treasury offset to recover a debt owed to the United States, as well as to garnishment for child support.

Each service department has established a CRSC review board to receive, review, and process applications. Evaluations will include an assessment of which disabilities are combat-related, (both actual and simulated, or which result from uniquely hazardous duty, an instrumentality of war and environmental exposures. Veterans with service-connected Post-traumatic Stress Disorder will be required to produce documentation to support a combat-related underlying stressor.

There is currently proposed legislation (H.R. 1588, the National Defense Authorization Act of 2003) that could drastically affect the CRSC program, particularly with respect to the issue of the establishment of concurrent receipt of full military retirement pay and VA disability compensation, (also referred to as the elimination of the disabled veterans tax). The proposed language would expand CRSC to include all combat or hazardous duty disabilities that are VA rated from 10 percent to 100 percent, effective January 1, 2004.

Additionally, the DOD provision would authorize all career military retirees with VA disability ratings of 50 percent or higher to have full concurrent receipt phased in over a ten-year period.  No application is expected to be required. If the bill is enacted into law, the following benefits would become effective for military retirees as of January 1, 2004:

  • 100 percent disability, $750 per month
  • 90 percent disability, $500 per month
  • 80 percent disability, $350 per month
  • 70 percent disability, $250 per month
  • 60 percent disability, $125 per month
  • 50 percent disability, $100 per month.
The proposed law provides that until 2014 payment amounts will increase by approximately 10 percent. In 2005, eligible veterans would receive an additional 10 percent of any remaining offset. In 2006, such veterans would receive 20 percent of the remaining offset, and so on. By January 2014, disabled retirees with a VA rating of 50 percent or higher will be entitled to full concurrent receipt of military retired pay and VA disability compensation.

National Guard and Reserve career retirees will be treated the same as active-duty retirees and will be included in both the CRSC program and the phase-in of concurrent receipt for veterans rated 50 percent or higher. Disabled retirees who qualify for both programs would have to choose between them. The DOD maintains a website that provides the latest information on CRSC, as well as an online application process. The web address is: www.defenselink.mil/prhome/crsc.html

   

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