Somewhere, there is someone who was present at the creation of the first VA Disability Presumptive Class. I was not. So, I’m left to piece that history together. Why? Because understanding that history will give you insight into why the AMIC is in pursuit of a longer term goal of obtaining the creation of a new presumptive class, the Aviator Cancer Presumptive Class.
This link is to a short article on the VA.gov website that provides a brief summary of the history of what we today call the Veteran’s Administration. This link is to a presumption talking paper that is hosted at VA.gov. However, no single document more concisely yet effectively articulates the basis for the creation of the doctrine of presumption than a 2008 report produced by the National Academy of Sciences (http://nap.edu/11908) titled, “Improving the Presumption Disability Decision-Making Process For Veterans.” The passage below is quoted in its entirety from the General Summary, page 1:
The United States has long recognized and honored the service and sacrifices of its military and veterans. Veterans who have been injured by their service (whether their injury appears during service or afterwards) are owed appropriate health care and disability compensation. For some medical conditions that develop after military service, the scientific information needed to connect the health conditions to the circumstances of service may be incomplete. When information is incomplete, Congress or the Department of Veterans Affairs (VA) may need to make a “presumption” of service connection so that a group of veterans can be appropriately compensated. The missing information may be about the specific exposures of the veterans, or there may be incomplete scientific evidence as to whether an exposure during service causes the health condition of concern. For example, when the exposures of military personnel in Vietnam to Agent Orange could not be clearly documented, a presumption was established that all those who set foot on Vietnam soil were exposed to Agent Orange. What emerges from that quote is that presumption is both a method and a doctrine intended to level the playing field for Veterans. Specifically, presumption gave Veterans the way to obtain VA care for conditions rooted in their military service…when the medical and scientific evidence was still catching up. No more single presumptive class illustrates this than the Agent Orange class. This link is to the VA.gov webpage that explains both the conditions that satisfy eligibility for Agent Orange service connection and how VBA claims examiners adjudicate Agent Orange claims.
Since this brief article is about presumption as method and doctrine, it’s important to take a brief look at how presumptive classes come into existence. This will also inform how RRVA proceeds in its planning to establish an Aviator Cancer Presumptive Class. Figure 1, taken from NAS publication, “Improving the Presumption Disability Decision-Making Process For Veterans” pg. 11, National Academy of Sciences publication 11908, 2008, Washington, DC, depicts the process in use since 1991.  In figure 1, “Stakeholders” are every organization, body, agency, entity, and individual with a stake in the deliberative outcome. “Congress” is depicted as an acknowledgment of its legislative capacity to mandate the existence of any presumptive class. This Congressional authority was created in 1921 by Congress as a named federal oversight power. In that same act, Congress delegated its ability to create presumption to the Secretary of the VA.
The “Study Charge” is an interesting function that can flow from one of two sources to any agency charged with a specific analytic task. Here, the Congress can direct the VA to let a contract with an agency external to the VA to study a particular set of conditions which may be eligible for consideration as a new presumptive class or a proposed change in scope of an existing presumption. The VA can use its inherent authorities to contract with an external agency, in recent practice, the National Academy of Sciences (NAS). This ought to inform one as to the substantial influence the NAS has in promoting or impeding the creation of a presumption.
The National Academies illustrated in figure 1, specifically its Institute of Medicine (IoM) and National Research Council, responds to a charge to study a topic of interest. The IoM does on occasion unilaterally opt to study a matter then submit its report to the VA and/or Congress.
At the end of the analytical sausage-making is the decision to proceed with the establishment or modification of a presumption, or not. The influence points for Veterans are essentially within the Congress and the VA. The IoM does not form its study committees charged with study design, associated research, and report writing from the activist community. The VA will typically remain neutral on a presumption decision that involves the creation of a new presumption. However, the VA can and does respond to influence on matters of the modification of an existing presumption.
As occurred in the case Agent Orange case, the federal courts can and have decided key aspects of a presumption when activists and others with legal standing, sought legal remedy for matters such as scope, eligibility criteria, associated medical conditions, etc. Finally, as shown in figure 1, the VA may appeal any U.S. federal courts decision or actions. Additionally, if appropriate, Congress may enact public law to establish the needed changes to a presumptive class.
This was a brief discussion of what presumption is and how presumptive classes come to be enacted. Congress created presumption in 1921 and used presumptive authority to work with the Veteran’s Bureau of the 1920s to provide care for Veteran’s exposed to large-scale, frequent mustard gas attacks of WWI, and later isolated attacks in WWII. Later, Congress created the “Atomic Warriors” presumptive class to care for Veterans exposed to nuclear weapons tests in Nevada and in the Pacific. The Agent Orange, Gulf War Veteran, and Camp LeJeune Housing presumptive classes came later. RRVA is beginning a multi-year campaign that will require a lot of focused effort. Go well. |
