(Edited version of Mr. Violante's, DAV Legislative Counsel, address to the
Veterans Compensation, Pension, Insurance and Memorial Committee)
DAV Seeks Justice, Equity for "Atomic Vets " July/August 1996
The DAV has urged swift, decisive action to reverse government policies that have denied VA health care and disability compensation to many veterans exposed to ionizing radiation.
These "atomic veterans" were placed in harms way by our government for the sole purpose of obtaining first-hand evidence about the effects of ionizing radiation, yet many have been unable to receive adequate health care treatment from the VA for ailments believed to be associated with radiation exposure. Nor have the vast majority of these veterans been compensated for their residual disabilities. And legislation to correct these injustices is long over due, DAV Legislative Counsel told a House Veterans Affairs Committee panel. The issue of ionizing radiation and its potential adverse health effects have been present for more than 50 years, the legislative counsel told the Compensation, Pension, Insurance, and Memorial Affairs Subcommittee.
Atomic veterans and their loved ones have been patiently waiting for answers from the scientific and medical communities, as well as responses to their continuing concerns from Congress and the VA. Unfortunately, all too often those answers were not forthcoming. Nor does it appear that definitive answers will ever be known. For each study done concluding one point, another study surfaces to discount the findings of the prior report. Thus, the debate rages, with no apparent end in sight.
For far too many of these veterans, gaining access to much-needed VA health care has been a frustrating experience. The VA medical system is in crisis because of years of inadequate funding and a "patchwork approach" to addressing the health care needs of veterans. In addition, atomic veterans believe their particular medical needs are not being met because physicians who examine them, for the most part, don't know enough about the harmful effects of radiation exposure to properly diagnose their illnesses and injuries. In fact, some atomic veterans honestly believe these physicians are intent on not encouraging radiation claims and, therefore, play down the medical problems of atomic veterans.
Obtaining VA disability compensation is another frustrating aspect of ionizing radiation. All too many radiation claims are denied due to the unanswered questions from the scientific and medical communities, the apparent failure of dose reconstruction methods to adequately reflect the true extent of radiation exposure experienced by atomic veterans, and the inability to obtain meaningful adjudication of radiation claims.
He also cited the inequity of denying disability compensation to atomic veterans while others receive compensation from the U.S. government for the same disabilities. For example, natives of the Marshall Islands, the site of some U.S. atmospheric nuclear tests, receive disability compensation for 27 "irrebutt-able" medical conditions presumed to be caused by exposure to ionizing radiation. By contrast, only 15 diseases are given a "rebuttable presumption" of service connection for atomic veterans.
He also called upon Congress to "take immediate action" to address DAV concerns
regarding atomic veterans as reflected in resolutions adopted by the DAV
membership at the 1995 national convention.
One resolution calls for awarding a military medal to recognize and honor the courage, sacrifice, and devotion to duty of those veterans exposed to ionizing radiation during military service. The other noted the inaccuracy of dose reconstruction estimates provided by the Defense Nuclear Agency (DNA).
The DAV called for the condemnation of this action of the DNA and urged the VA to review the accuracy of dose reconstruction estimates. Amid the swirling controversy surrounding the adverse health effects of radiation and the level of radiation exposure that would trigger various illnesses are the very real concerns of atomic veterans and their families and survivors, their concerns are "further compounded by frustration, mistrust, and anger" about the involuntary nature of radiation exposure, as well as the secrecy shrouding the government's nuclear tests and the sparse, often conflicting, information about the chronic health effects of that exposure.
Many of these veterans and their families mistrust the agency established to care for them-the VA, because it is part of a government they perceive as covering up the true facts.
While laws have been enacted to provide them with priority access to VA health care and VA disability compensation, very few atomic veterans are able to receive adequate care and treatment. One stumbling block is that if a veteran s illness could be the result of something other than radiation exposure, VA health care can be denied. Even fewer atomic veterans and their survivors are able to establish entitlement to VA disability compensation or death benefits.
Some [atomic veterans] believe the VA's sole emphasis is directed toward only those diseases that are recognized as radiogenic diseases and, if you do not have one of these diseases, you are wasting your time. Also, some veterans believe VA physicians want to discourage compensation claims, so they diagnose diseases other than those associated with radiation exposure.
Regardless of whether these problems are real or perceptions based on mistrust of the government, congressional oversight is needed to ensure that atomic veterans receive quality health care and treatment and are not improperly denied disability compensation.
It has long been the VA's policy that any condition which can be attributed to service shall be granted direct service connection, no matter how long after service the condition first became manifest. However, "be cause of the difficulty in proving causation in ionizing radiation case very few claims for direct service connection have been allowed. As Subcommittee Chairman Rep. Terry Everett (R-Ala.) noted, "A look at the numbers presents some disturbing facts". Only about 10% of those applying for radiation-related compensation have been approved."According to the DNA, 222,968 [in 1980 the DNA said 300,000] military personnel participated in U.S. .atmospheric nuclear tests conducted in Nevada and the Pacific and Atlantic Oceans after World War II.
As of April 1, the VA had processed 18,515 claims for radiation exposure (involving both direct service connection and presumptive service connection) and had granted service connection in 1,886 cases. However, the VA said it cannot be inferred from those numbers that service connection was necessarily granted on the basis of radiation exposure. Statistics current as of Dec. 1, 1995, demonstrate that of the total number of cases granted, 463 involve granting of presumptive service connection.
[The VA estimates that less than 50 claims have been granted on the basis of direct service connection for residuals of radiation exposure.]Over the years, Congress has recognized the association between some diseases and radiation exposure. And in 1984, remedial legislation was enacted, whereby a veteran suffering from a radiogenic disease was not required to submit evidence that the illness was caused by radiation exposure.
Currently, the VA recognizes 20 radiogenic diseases for service connection on a direct basis, including several forms of cancer and other diseases. Until recently, the VA considered the list of radiogenic diseases as an exclusive list. By doing so, the VA refused to consider any claims for direct service connection if it could not be demonstrated that the atomic veteran suffered from one of those listed radiogenic diseases. That policy was overturned in a 1994 ruling from U.S. Court of Appeals for the Federal Circuit in Combee vs. Brown. Mr. Combee, a U.S. Army veteran, participated in the occupation of Japan following World War II, serving in Nagasaki in 1945. Decades later he sought to establish service connection for residuals of exposure to ionizing radiation. He was diagnosed as suffering from leukopenia and thrombocytopenia, which doctors, including a VA physician, maintained were the result of exposure to ionizing radiation.
However, his claim was consistently denied by the VA rating board, the Board of Veterans Appeals, and the Court of Veterans Appeals. Mr. Combee then appealed his case to the U.S. Court of Appeals for the Federal Circuit, which reversed the lower court's decision and the VA's practice. His case was sent back to the VA for further adjudication.
Unfortunately, Mr. Combee, like so many other atomic veterans, succumbed to his disabilities before his claim could be properly adjudicated on the merits of the case.
Once atomic veterans have shown that they suffer from radiogenic disease or provided medical evidence of a cause and effect relation ship, they face their greatest obstacle in establishing entitlement to service connection on a direct basis. In more cases than not, no actual individual exposure record is available for the atomic veteran, and reconstruction dose estimates routinely fail to provide an accurate estimation of the level of radiation exposure.
As a result, radiation claims are wrongfully denied because inaccurate reconstructed dose estimates often indicate far lower levels of exposure than sufficient to cause the cancer or other disease ravaging the atomic veteran's body.
Adjudication of radiation claims has been a total failure, with almost 95% of atomic veterans failing to establish service connection for their illness, disease, or disability. The remedial legislation passed in 1984 has not provided atomic veterans with meaningful consideration of their claims. The present statistical data showing. an extremely high denial rate has changed very little since 1984. And while Congress recognized the need for further remedial legislation in 1988, much more still needs to be done.
Something is seriously wrong with this process if atomic veterans are continuously denied service connection for the residuals of radiation exposure when evidence clearly warrants an allowance in those cases. Atomic veterans have waited too long to receive the services and benefits to which they are entitled. The DAV's testimony called upon Congress to enact legislation granting service connection for all recognized radiogenic diseases, and any other disease, illness, or disability that others are being compensated for.
The Marshall Islanders have an irrebuttable presumption; at the very least, America's atomic veterans should receive a rebuttable presumption for those diseases, illnesses, or disabilities. As these new benefits would fall under the "pay-go" provisions of the Budget Enforcement Act, no additional funds could be appropriated to pay for them, It appalls the DAV, that in order to pay for the provisions of this new legislation, some other worthy group of wartime disabled veterans or their dependents will have to give up a portion of their compensation or other benefits to fund new benefits to which atomic veterans are entitled.
Congress must realize that paying for disabilities of wartime disabled veterans is nothing more than an extension of the costs of war waged by our government. In the case of atomic veterans, their disabilities not only stem from our war time actions, but also from our government's desire to learn of the effects of radiation exposure in the event of future nuclear wars.
It is unconscionable to think that one worthy group of wartime disabled veterans must give up an entitlement so that another worthy group of wartime disabled veterans can receive benefits to which they are entitled. Therefore, the DAV calls upon Congress to correct this injustice and provide an exemption to the "pay-go" provisions when new benefits are provided to wartime disabled veterans.