ACHIEVING JUSTICE: THE CASE FOR LEGISLATIVE REFORM
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. Introduction 113
II. 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
III. The Anatomy of a Claim: Process and Problems 123
A. Process 123
B. Failed Protections 127
IV. 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
V. Combat Veterans Suffering from PTSD and
Hearing Loss Deserve Presumptive
Protection from Congress 134
VI. 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 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]
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.
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 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 decision-making, Congress simply resolved that the remaining veterans would die soon enough, and the problem would solve itself.[17]
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 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 service-connection.[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 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]
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 medical-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 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 NON-APPARENT 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 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 civilian-disability 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 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 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.
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 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 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 service-connected 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 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 service-connection 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 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 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]
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-agent-antidote 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 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 PRE-DATES 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, 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 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 “hand-in-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 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 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 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 service-connection 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.
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 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 SERVICE-CONNECTION IS A STEP TOWARD A MORE SIMPLIFIED SYSTEM THAT FAIRLY AND EFFICIENTLY COMPENSATES VETERANS DISABLED BY SERVICE TO THEIR COUNTRY.
Kristi A. Estrada*
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[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 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), (follow “VA Stats at a Glance” hyperlink).
[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 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 . . . .”).
[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.
[29]. SEVERO & Milford, supra note 6, at 182-83.
[30]. DEP’T OF VETERANS AFFAIRS, FACT SHEET: AMERICA’S WARS 1 (2007), http:// www1.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 _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 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 veterans. 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.
[51]. Id. at 23; see discussion infra Part III.B.
[52]. SEVERO & Milford, supra note 6, at 352.
[53]. Id. at 355.
[54]. Id. at 352, 355.
[55]. Hubbard, supra note 4, at 984.
[56]. Id. at 984-85.
[57]. SEVERO & Milford, supra note 6, at 360-61.
[58]. Id. at 361.
[59]. Id. at 366.
[60]. Id.
[61]. The Story of Agent Orange, THE U.S. VETERAN DISPATCH Staff Report (1990), . 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.
[67]. Id.
[68]. Id. at 307.
[69]. Id. at 304.
[70]. 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).
[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 (2005-06).
[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.
[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, 227-28, 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.
[97]. 38 U.S.C. § 5107(b) (2000); 38 C.F.R. § 3.102 (2005).
[98]. Levy, supra note 65, at 316.
[99]. Jablow, supra note 84, at 32.
[100]. Levy, supra note 65, at 316.
[101]. Murphy, supra note 64, at 556-57.
[102]. O’Reilly, supra note 93, at 227-28, 230.
[103]. See DiMatteo, supra note 77, at 996.
[104]. Levy, supra note 65, at 317.
[105]. Jablow, supra note 84, at 32.
[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 criteria to assist a veteran [in] establish[ing] his or her entitlement to service-connected 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 .
[116]. 38 U.S.C. § 108(b) (2000).
[117]. Id. § 1111.
[118]. Id. § 1153.
[119]. INST. OF MED., IMPROVING tHE PRESUMPTIVE Disabilty DECISION-MAKING 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).
[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).
[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).
[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 non-military 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).
[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.”).
[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.
[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 .
[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.
[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.
[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 .
[188]. DECISION-MAKING PROCESS, supra note 119, at 38.
[189]. See generally ANALYSIS oF PRESUMPTIONS, supra note 32.
[190]. See CONG. BUDGET OFFICE, STRUCTURING tHE ACTIVE aND RESERVE ARMY for tHE TWENTY-FIRST CENTURY 10 (Dec. 1997), available at .
[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:/ /pdf/FinalReport10-11-07-compressed.pdf [hereinafter HONORING 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 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 .
[197]. 137 Cong. Rec. S1128 (1991) (statement of Sen. Daschle).
[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 .
[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).
[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, (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.”).
[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.
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