Urgent action needed to stop Reduction in VA benifits

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Hawk
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Urgent action needed to stop Reduction in VA benifits

Post by Hawk » Thu Sep 25, 2003 2:22 am

:cry: found at http://www.patriotfiles.com/forum/showt ... ck here: http://www.dav.org/voters/statement_surratt_092303.html
to read DAV’s September 23, 2003, testimony before the Senate Veterans’ Affairs Committee. We urge you to continue your grassroots efforts to defeat this proposal to greatly limit service connection and to get legislation authorizing concurrent receipt of military retired pay and disability compensation.
I am only one but I am one. I can not do everything but I can Do something And because I cannot do everything I will not refuse to do the something that I can do What I can do I should do And what I should do by the grace of God I will do. Edward E. Hale
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Post by Hawk » Thu Sep 25, 2003 2:25 am

more info:

Current description of
eligibilty criteria Code of Federal Regulations, Section 38---Para. 3.4.

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§3.4 Compensation.

(a) Compensation. This term means a monthly payment made by the Department of Veterans Affairs to a veteran because of service-connected disability, or to a surviving spouse, child, or parent of a veteran because of the service-connected death of the veteran occurring before January 1, 1957, or under the circumstances outlined in paragraph (c)(2) of this section. If the veteran was discharged or released from service, the discharge or release must have been under conditions other than dishonorable. (Authority: 38 U.S.C. 101(2), (13))

(b) Disability compensation.

(1) Basic entitlement for a veteran exists if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service if the injury or the disease was incurred or aggravated in line of duty. (Authority: 38 U.S.C. 1110, 1131)

(2) An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 per centum or more disabling. (Authority: 38 U.S.C. 1115)

(c) Death compensation. Basic entitlement exists for a surviving spouse, child or children, and dependent parent or parents if:

(1) The veteran died before January 1, 1957; or

(2) The veteran died on or after May 1, 1957, and before January 1, 1972, if at the time of death a policy of United States Government Life Insurance or National Service Life Insurance was in effect under waiver of premiums under 38 U.S.C. 1924 unless the waiver was granted under the first proviso of section 622(a) of the National Service Life Insurance Act of 1940, and the veteran died before return to military jurisdiction or within 120 days thereafter. (See §3.5(d) as to Public Health Service.) (Authority: 38 U.S.C. 1121, 1141)


[26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979]
I am only one but I am one. I can not do everything but I can Do something And because I cannot do everything I will not refuse to do the something that I can do What I can do I should do And what I should do by the grace of God I will do. Edward E. Hale
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Post by Hawk » Thu Sep 25, 2003 2:27 am

more info: The DAV testimony in the Senate "broke it down to street level" better than I could.

Here is a portion of what they testified today.

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This House republicans plan would have our Government renounce all responsibility to compensate and care for members of the Armed Forces disabled in the line of duty, except under extremely restricted circumstances. This move would abandon the fundamental principles of our Nation’s relationship between its citizens and the veterans who have made extraordinary sacrifices in their behalf. For a veteran who suffers service-connected disability, our Government has deemed it our moral obligation to provide the disabled veteran a range of benefits designed to ease the economic and other losses and disadvantages incurred as a consequence of serving his or her country. These benefits include compensation, medical care, and vocational rehabilitation. Other special benefits are provided to the most severely disabled veterans and to the survivors of veterans whose deaths are from service-connected causes. The House plan would bring these benefit programs to an end for the majority of our future disabled veterans and their families and would essentially deny increased compensation for many current disabled veterans when their disabilities worsen.

Under current law, the term "service-connected" means generally, "with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in the line of duty in the active military, naval, or air service." 38 U.S.C.A. § 101(16) (West 2002). An injury or disease incurred "during" military service "will be deemed to have been incurred in the line of duty" unless the disability was caused by the veteran’s own misconduct or abuse of alcohol or drugs, or was incurred while absent without permission or while confined by military or civilian authorities for serious crimes." 38 U.S.C.A. § 105 (West 2002).

Based on equitable considerations, several named "chronic" diseases may be presumed service connected because of their sometimes insidious onset and clinical manifestation within relatively short periods of time following service. Others may be presumed service connected based on the likelihood of a causal connection between the specified disabilities and certain circumstances of military service or exposure to certain hazards during service. These include tropical diseases for veterans who had service in areas where such diseases were endemic; diseases suffered by former prisoners of war from malnutrition, unsanitary conditions, physical hardships or abuse, and mental hardships or abuse; radiation-related disabilities for veterans who were exposed to radiation during service; diseases associated with exposure to herbicides used during the war in Vietnam; and disabilities peculiar to veterans who had service in the Persian Gulf War. 38 U.S.C.A. §§ 1112, 1116, 1117, 1118 (West 2002). In addition, the Secretary of Veterans Affairs presumes certain diseases are service connected when suffered by veterans who, during service, were exposed to mustard gas and Lewisite. 38 C.F.R. § 3.316 (2002).

Thus, disabilities are service connected under current law when incurred, aggravated, or presumed incurred or aggravated during or by military service. While service connection may be established based on a demonstrated or presumed cause-and-effect relationship, service-related causation is not required where there is evidence of a condition during service or a presumptive period. Under current law, disabilities of onset coincident with military service may be service connected without necessity to establish and prove a causal link between the performance of military duties, per se, and the disability. If the disability is of service origin, it is deemed attributable to service-related factors. “Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.” 38 C.F.R. § 3.303(a) (2002) (emphasis added).

Clearly, Congress fully understood and intended this equitable and practical basis to compensate veterans for a wide range of disabilities for which the extraordinary rigors and hardships of military service can fairly be assumed to have played a precipitating or aggravating role, although the very nature of the circumstances of military service coupled with imperfect science make proof of causation extremely difficult or impossible in many instances. “Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans benefits. This is particularly true of service-connected disability compensation where the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty.” H.R. Rep. No. 100-963, at 13 (1988).

Under the draft proposal of the House leadership, service connection would be granted only where the disability is from: (1) “njuries directly resulting from the performance of official military duties,” and (2) “llnesses directly resulting from exposure to the causes of the illness while performing official military duties or directly resulting from exposure to the causes of the illness at the duty location to which the member is assigned.” (Emphasis added.) Excluded from the scope of service connection under this restricted standard would be (1) “injuries that are sustained while not performing official military duties,” and (2) “illnesses determined to be relating to aging and/or preexisting medical conditions of the member.” The proposed scheme narrowly defines “official military duties” as including: (1) “[d]uties performed in an official government capacity directly related to those functions and scope of duties associated with the occupational skill assigned to the member,” (2) “[o]ther actions or functions in an official government capacity that the member was ordered to execute by a member (or civilian supervisor) of senior grade or rank or in a senior or superior position, or a member that is designated by such as senior individual to give the member instructions, to include unspecified preparatory or follow-on actions and functions,” and (3) “duties that result in qualified combat-related disabilities as defined in section 1413a of title 10, [United States Code].” Essentially all other activities of military service fall under a broad exclusion from the definition of “official military duties,” even events that occur during duty hours. Excluded are “actions and time periods unrelated to official government business to include travel to and from the member’s home and permanent duty station, meals, and other activities selected and carried out by the member at an official duty location and during hours designated as duty hours for the member.”

Disability may arise in the course of military service but not be susceptible to strict proof that it was the proximate result of performing activities of the member’s specific military occupation, as opposed to engaging in the wide range of activities typical of service in the Armed Forces. The current terms for service connection provide both an equitable and sensible approach because it is often impossible to disassociate the disability from service-related factors, even while the veteran is unable to establish a definite causation. It is generally recognized that the cause of disease may be multifactorial. Therefore, disability incurred in the line of duty is sometimes not directly due to a job injury or traceable to known causes, but certainly may be due to subtle or less obvious factors inherent in the Armed Forces environment.

Mental illnesses present a good example of disabilities that can properly be service connected under current law but would not qualify for service connection in many cases under the proposed new standards. Under the proposed change, how will it be fairly determined whether a mental illness that begins during military service is attributable to the performance of duties only, as opposed to (1) the stresses of the military environment generally to include the stresses associated with the performance of military duties combined with the stresses of serving in certain generally stressful military environments, (2) the emotional strain of serving away from home and family or in isolated duty stations, or (3) psychological stressors or factors totally unrelated to the military environment? Under the House plan, would service connection for mental illness be in order if it were clearly shown to have been partially caused by the performance of military duties and partially caused by other stresses of the military environment? In addition, it is being recognized more and more that mental stress plays a role in physical health. How will the Department of Veterans Affairs (VA) properly adjudicate complex questions of service connection for physical illnesses that are not directly shown to be related to performance of military duties but may have been triggered or intensified by the stressors of combat, terrors of a prisoner of war experiences, or the anxieties of highly stressful military occupations?

If service connection were currently subject to proof of service causation, Persian Gulf War veterans suffering from very real but poorly understood, undiagnosed illnesses would be left without compensation or medical treatment. Although a discrete group having the common experience of presence in a geographical region at the same period in time suffers from a syndrome comprising a commonality of symptoms, the link between the syndrome and the common experience is only circumstantial. It follows that there currently is no possibility of ascertaining whether these illnesses are directly due to the performance of military job functions or whether mere presence in the region, both on and off duty, could have caused them. The true nature of disease is unknown, and thus its cause or causes are unknown. With the additional exclusions included in the House plan, it is not at all clear that conditions such as these will be deemed by VA to qualify for service connection within the ambit of 10 U.S.C.A. § 1413a (West Supp. 2003)(“Qualifying combat-related disability”).

In a variety of other situations, it will be very difficult for veterans to prove that they were exposed to the causes of their diseases while performing military duties on the job as opposed to having been exposed while off duty. For example, how will a veteran prove that he was exposed to asbestos on a Navy ship only while performing his job functions as opposed to exposure in off duty hours? How will a veteran who contracted malaria in a tropical region prove that the mosquito bit him or her while performing military duties. How will the veteran who develops Lyme disease after field training prove that the tick that transmitted the disease bit him or her while performing military duties rather than while taking a rest break or sleeping in a tent?

Numerous other similar examples can be foreseen, particularly with respect to the question of whether the causes underlying a whole range of infectious or degenerative diseases were solely attributable to the performance of military job functions, attributable to the overall military environment (including the stresses and rigors of military service generally), attributable to both the environment within the confines of the military facility and off-base living facilities, or attributable to both military occupational functions and off-duty recreational activities.

For many in our Armed Forces who have military occupations that require them to stay in top physical condition, the line between what is performance of duty and recreation is blurred, if not nonexistent. If service connection is to be denied for the soldier who injures his knee playing special services basketball, is it also to be denied for the sailor who, at the encouragement or direction of her superiors, injures her knee participating in authorized recreational or sports activities while stationed on an aircraft carrier in the Persian Gulf? Or is it also to be denied for the marine who injures his knee while keeping in shape in the exercise room in the foreign embassy where he is stationed?

Consider the circumstances in which servicemembers were killed and disabled from a terrorist attack on their barracks in Beirut, Lebanon. Most were probably not performing military duties at the time. Consider the circumstances in which soldiers were the victims of the terrorist attack on a Berlin nightclub. In a strict sense, that was not performance of duty. On the other hand, unlike a civilian job, those soldiers were at the disposal of the Army 24 hours a day and were placed at risk because of military service. Military life, like civilian living, involves work, recreation, commuting between work and home, but in the Armed Forces these are all the performance of duty in the broader sense, especially when the servicemember is located in a military community or is isolated on a foreign station.

The radical House plan will have other far-reaching implications. There will be no presumptive service connection for “chronic diseases” because service connection is based on a presumption that the chronic disease has its onset during military service. Inasmuch as there is no evidence of the disease during service, it follows that the disease cannot be linked to the performance of military duties. As noted, presumptive service connection for illnesses attributed to service in the Persian Gulf is in doubt under this plan. The same difficulty exists in proving that exposure to herbicides—and radiation during the occupation of Hiroshima and Nagasaki—occurred solely in connection with the performance of military duties.

The House’s draft plan also expressly excludes from disabilities subject to service connection “illnesses determined to be related to aging and/or preexisting medical conditions of the member.” This indicates there will be no service connection by reason of aggravation. An individual could enter service with some minimal defect that did not disqualify the person for military service and have that disability aggravated by superimposed injury during service to an extent that it disqualified the member from further military service and resulted in total disability, but service connection would not be in order. The veteran would be sent home to fend for himself or herself.

Because the House plan would apply to new claims for service connection and evaluations of existing service-connected disabilities, veterans who suffer worsening of their service-connected disabilities could receive no increased ratings unless they could prove their already service-connected disabilities were the direct result of the performance of duty.

A servicemember who was paralyzed, for example, due to medical malpractice by a military physician would be without any remedy or benefits. A disability incurred in connection with military medical treatment would not meet the performance-of-duty requirement, and the member would be barred under Feres v. United States, 340 U.S. 135 (1950) (the “Feres doctrine”) from bringing a tort action to recover damages from the Government. Here again, the disabled veteran would be left to his or her own means to survive.

The House plan would plunge servicemembers into an extremely precarious position. Members of the Armed Forces have no real ability to obtain disability insurance from commercial insurers. Even if such insurance were available to them, the price would be prohibitive given the increased risks inherent in military service. Only the Federal Government is in a position to bear this risk—and it should without question.

Another incidental adverse effect would impact disability retirement from military service. Compensation is often elected in lieu of military disability retirement. Servicemembers who become disabled before completion of military careers are now eligible for disability retirement from the Armed Forces. Many of these disability retirees find it advantageous to elect to receive disability compensation. However, neither military retirement nor disability compensation would be available under the proposed plan unless the disability was due to the performance of military duties. Other Federal and private sector disability retirement programs do not require that the disability be job related.

Because entitlement to most benefits for veterans’ dependents and survivors is derived from the veterans’ service-connected status, the House plan would therefore also have a major adverse impact on veterans’ families. It is unclear how it might impact disability and other benefits under chapter 18 of title 38, United States Code, provided to Vietnam veterans’ children who suffer from spina bifida.

Beyond these more readily recognizable adverse effects, this change has the potential to cause myriad unforeseen and unintended consequences for veterans, servicemembers, veterans’ and servicemembers’ families, and for VA. For VA, numerous adverse consequences are easily foreseeable.

The “line of duty” standard dispenses with many complex issues related to disability causation. It is where the claim for service connection rests on proof of causation that VA now has its most complex and administratively burdensome adjudications. These complex adjudications involve proof of service connection for disabilities not shown during service or any presumptive period, such as, posttraumatic stress disorder, asbestosis, non-presumptive radiogenic diseases, and others. These cases demand a much greater investment of VA time and resources to resolve. To impose a causation requirement upon all new disabilities and claims for increase will complicate VA’s work beyond belief. It will generate untold numbers of disputes about causation, and the innumerable factual nuances in questions of causation will make fair and uniform determinations on this element of claims near impossible to achieve.

Because this change would strike at the very foundation of veterans’ disability benefits, it would require a virtual rewrite of title 38, United States Code, and title 38, Code of Federal Regulations.

The change would likely have similar adverse consequences for the Armed Forces. With the knowledge that military service generally involves far greater risks of injury than civilian careers, that this increased risk of disability is borne by the servicemember personally rather than the Government, and that the Government will have no hesitation in sending the servicemember into perilous situations that expose the servicemember to all manner of known and unforeseen hazards, potential recruits would be wise to consider other alternatives to military service. Although it is not a primary concern of this Committee, it bears noting that this proposed change might cause substantial decline in military enlistments and reenlistments.

This proposal to leave it to this Nation’s sons and daughters to serve in our Armed Forces at their own risk is simply indefensible. It is a bad idea for numerous reasons. Its only object seems to be abrogation of the Government’s responsibility to its servicemembers and veterans. We urge the members of this Committee to take the lead in opposing this ill-advised scheme.

folks we all got to call our representatives and put a stop to this!! 8O 8O
I am only one but I am one. I can not do everything but I can Do something And because I cannot do everything I will not refuse to do the something that I can do What I can do I should do And what I should do by the grace of God I will do. Edward E. Hale
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Post by Hawk » Fri Sep 26, 2003 2:07 am

here is a link to let them know how you feel:

http://veterans.senate.gov/

click on the link
scroll to the bottom of the page
select the contact tab
select a Senator's photo
on the home page displayed select contact
sound off, let them know how you feel about this, we have to let them know we oppose this :evil: :evil: :evil: :evil:
I am only one but I am one. I can not do everything but I can Do something And because I cannot do everything I will not refuse to do the something that I can do What I can do I should do And what I should do by the grace of God I will do. Edward E. Hale
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