(1) in the case of a physician or dentist, he is to be used on a research or an academic post or where there is no direct responsibility for the care of patients; or

(2) in any case, where the individual is to serve in a country other than the United States and his licensure or registration is in the country in which he is to serve.

Chapter 81-ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY FACILITIES; PROCUREMENT AND SUPPLY

§ 5053. Specialized medical resources

(a) To secure certain specialized medical resources which otherwise might not be feasibly available, or to effectively utilize certain other medical resources, the Administrator may, when he determines it to be in the best interest of the prevailing standards of the Veterans' Administration medical care program, make arrangements, by contract or other form of agreement, as set forth in paragraphs (1) and (2) below, between Veterans' Administration hospitals and other hospitals (or medical schools or other medical installations having hospital facilities) in the medical community:

(1) [for the exchange of use] for the mutual use or exchange of use, of specialized medical resources when such an agreement will obviate the need for a similar resource to be provided in a Veterans' Administration facility; or

(2) for the mutual use, or exchange of use, of specialized medical resources in a Veterans' Administration facility, which have been justified on the basis of veterans' care, but which are not utilized to their maximum effective capacity.

The Administrator may determine the geographical limitations of a medical community as used in this section.

(b) Arrangements entered into under this section shall provide for reciprocal reimbursement based on a charge which covers the full cost of services rendered, supplies used, and including normal depreciation and amortization costs of equipment. Any proceeds to the Government received therefrom shall be credited to the applicable Veterans' Administration medical appropriation.

(c) Eligibility for hospital care and medical services furnished any veteran pursuant to this section shall be subject to the same terms as though provided in a Veterans' Administration facility, and provisions of this title applicable to persons receiving hospital care or medical services in a Veterans' Administration facility shall apply to veterans treated hereunder.

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91ST CONGRESS 1st Session

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SENATE

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REPORT No. 91-486

CREATING REBUTTABLE PRESUMPTION OF SERVICECONNECTION FOR DISABILITIES OF CERTAIN VETERANS UNDER CERTAIN CIRCUMSTANCES

OCTOBER 17, 1969.--Ordered to be printed

Filed under authority of the order of the Senate of OCTOBER 16, 1969

Mr. CRANSTON, from the Committee on Labor and
Public Welfare, submitted the following

REPORT

[To accompany S. 1279]

The Committee on Labor and Public Welfare, to which was referred the bill (S. 1279) to provide that any disability of a veteran who is a former prisoner of war is presumed to be service connected for purposes of hospitalization and outpatient care, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and a title amendment, and recommends that the bill as amended do pass.

COMMITTEE AMENDMENTS

The amendments are as follows:

Strike out all after the enacting clause as follows:

That section 610 of title 38, United States Code, is amended by adding at the end thereof the following:

"(d) Any disability of a veteran who is a former prisoner of war, upon application for the benefits of this section or hospitalization under section 624 of this title, shall be considered for the purposes thereof to be a service-connected disability incurred or aggravated in a period of war.'

"SEC. 2. Section 612(e) of title 38, United States Code, is amended by inserting after 'veteran' the following: 'who was a former prisoner of war and any disability of a veteran'."

And insert in lieu thereof:

That (a) section 602 of title 38, United States Code, is amended by inserting "(a)" immediately before "For"; and by adding a new subsection as follows: "(b) For the purposes of this chapter, the disability of any veteran of a war or of service after January 31, 1955, shall be deemed to be service-connected if—

"(1) there are no medical records available to the Veterans' Administration for the period of such veteran's active military, naval, or air service;

"(2) there is no medical record available to the Veterans' Administration for such veteran showing the results of any physical examination which was required by law or regulation, in effect at the time of such veteran's discharge or release from active duty, to be given members of the Armed Forces immediately prior to discharge or release from active duty;

"(3) for any period of time during his active military, naval, or air service such veteran (A) was held as a prisoner of war, or (B) while in line of duty was forceably detained or interned by a foreign government or power; unless the Administrator can show by clear and convincing evidence that such disability was not incurred in or aggravated in line of duty by such veteran while serving in the active military, naval, or air service."

(b) The catch line of section 602 of title 38, United States Code, is amended to read as follows:

"§ 602. Presumption relating to certain disabilities".

(c) The table of sections at the beginning of chapter 17 of title 38, United States Code, is amended by striking out

"602. Presumption relating to psychosis."

and inserting in lieu thereof

"602. Presumption relating to certain disabilities.".

Amend the title so as to read:

A bill to create a rebuttable presumption that a disability of a veteran of any war or certain other military service is service-connected under certain circumstances.

The purpose of the amendments is essentially to change the nature of the presumption of service connection that the bill would establish from conclusive to rebuttable and to extend that rebuttable presumption to a broader group of veterans. The reasons for these changes are discussed in detail below.

INTRODUCTION

The Subcommittee on Veterans' Affairs conducted hearings on S. 1279 on July 17, 1969. Testimony was presented by spokesmen of the administration, veterans' organizations, and by U.S. Senators. In executive session on October 2, 1969, the subcommittee considered S. 1279, amended it, and unanimously ordered it reported to the full Labor and Public Welfare Committee. The Committee on Labor and Public Welfare met in executive session on October 9, 1969, at which time S. 1279, as amended, was unanimously approved and ordered reported.

This bill, as amended by the committee, would establish, for the purposes of chapter 17 of title 38, United States Code, relating to hospital, domiciliary, and medical care for veterans, a rebuttable presumption that any disability from which a veteran of any war, or of service after January 31, 1955, is suffering is service connected where any one of the following three conditions is met:

(1) When the Veterans' Administration is not, within a reasonable period of time, able to locate and examine any medical records covering such a veteran's active duty service during any particular tour of duty—that is, where there has been an enlistment and a discharge, or a discharge and a new enlistment or tour of duty. It is important to note in connection with this category that the absence of records must be total and that it is not intended by the committee that the creation of this category should open the door to claims that records for particular alleged medical conditions are absent and that the

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presumption should thus obtain. Rather, there should be relatively little, if any, dispute as to which cases fit this category-namely, those in which the Veterans' Administration calls for the file of a veteran for a particular tour of duty and no medical records for that tour of active duty are forthcoming. Although the committee considered the possibility of extending the presumption to cover cases in which no medical records were available for any substantial portion of service, this was rejected as impracticable in light of military recordkeeping practices. Since no regular (for example, monthly) positive entries are required on a serviceman's medical record, such a provision would inevitably lead to numerous claims of missing records for particular illnesses or injuries, and the Veterans' Administration would be required to spend significant time just determining whether the burden of proof should be shifted.

(2) When the Veterans' Administration is not able, within a reasonable period of time, to locate and examine the medical record of any separation physical examination which was required to be conducted by law or regulation in effect at the time of or shortly before separation of the veteran. Again, the absence of this key record should be readily ascertainable and should not serve to proliferate claims that the presumption be raised. It is the committee's understanding that separation physical examinations are generally required for servicemen who have served at least 30 days of active duty or active duty for training unless they are being separated for immediate enlistment.

(3) When the veteran in question was a prisoner of war or was forcibly detained or interned in line of duty by a foreign government or power. With respect to claims by former prisoners of war, it is the committee's understanding that the Veterans' Administration already awards to them the most expeditious treatment and medical examinations as well as the benefit of the doubt on medical interpretations. This provision of the bill would codify the benefit of the doubt as a rebuttable presumption. At the same time, this provision is not intended in any way to alter or replace the expeditious handling of such cases currently required in Veterans' Administration regulations.

In the case of those veterans who were not held during a "period of war" as defined in 38 U.S.C. 101(11) (such as during the post-Korean conflict (after January 31, 1955) and before the Vietnam era began (on August 5, 1964)), the "line of duty" concept is intended to exclude the same category of cases which would generally be excluded for workmen's compensation purposes when an employee is clearly on "a frolic of his own." This would include misconduct or disobedience of orders such as being absent without leave (AWOL). Generally, servicemen on authorized leave would be entitled to the benefit of the presumption if captured during that period by a foreign government or power or a force purporting to act in the name of such government or

power.

The committee is aware of the provision of 38 U.S.C. 354(b) that veterans of combat with the enemy shall have resolved in their favor all reasonable doubts with regard to claims of service connection of any disease or injury. However, the committee believes that in cases in which the unavailability of records, through no fault of his own, virtually precludes a veteran from successfully carrying the burden of proving service connection, the law should affirmatively relieve him of

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that burden. Thus, in the three enumerated circumstances, the burden. would be shifted to the Veterans' Administration, and it would have to disprove service connection.

In introducing this bill, Senator Montoya, its principal sponsor, estimated that somewhat less than 115,000 former prisoners of war (not including those presently held by the North Vietnamese) are now living and that many already have disabilities which are rated as service connected. He also stressed, at that time and later in testimony before the committee, the very serious nutritional deficiencies and psychiatric disturbances resulting from such imprisonment which may plague a former prisoner of war for the rest of his life and which may many years after discharge be manifested by new symptoms difficult to prove as having arisen out of service. The committee agrees that, in light of the extensive sacrifices many of these men have been called upon to make for their country, they should be relieved of the burden of proving service-connection for their disabilities.

This statutory recognition of the special medical problems of prisoners of war is recognized in present law in 38 U.S.C. 612(b)(3) which provides for furnishing of outpatient dental services and treatment and related dental appliances to former prisoners of war.

The presumption provided by the committee amendment has been made rebuttable rather than conclusive so as to preclude successful claims of service connection for disabilities resulting from conditions clearly arising before or after and independent of service. There are a number of precedents for raising such presumptions. For example, for purposes of disability compensation under 38 U.S.C. 311, there is a rebuttable presumption of sound medical condition upon enrollment in military service; and for the same purposes under sections 312 and 313 certain diseases--chronic, tropical, tuberculosis, multiple sclerosis, and Hansen's disease-manifesting themselves after service under certain conditions are rebuttably presumed to have been service connected in their origins. By contrast, the section amended by the bill, section 602, presently raises a conclusive presumption of service connection for any active psychosis developed within 2 years of discharge.

The Veterans' Administration estimates the total first-year cost of this bill for the former prisoners of war (not including those presently held as prisoners of the North Vietnamese or listed as missing in action) as approximately $1,017,000, including approximately $215,000 in administrative costs. Because of the uncertainty of the number of veterans who would apply for the benefit of the presumption under the first two categories, it is impracticable to make a precise estimate of the annual cost for those categories. However, there is no reason to believe that these categories would entail substantial expenditures.

AGENCY REPORTS

The reports of the Veterans' Administration follow:

S. Rept. 91-486