[Congressional Record Volume 155, Number 63 (Tuesday, April 28, 2009)]
[Senate]
[Pages S4817-S4818]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA:
  S. 919. A bill to amend section 1154 of title 58, United States Code, 
to clarify the additional requirements for consideration to be afforded 
time, place, and circumstances of service in determinations regarding 
service-connected disabilities; to the Committee on Veterans' Affairs.
  Mr. AKAKA. Mr. President, I am today introducing the proposed 
Clarification of Characteristics of Combat Service Act of 2009. This 
legislation is designed to address concerns which have been noted 
during the Committee's oversight visits to VA regional offices. From 
the review of claims folders as part of ongoing oversight, Committee 
staff has noted that VA adjudicators often fail to factor in the 
existence of common occurrences when considering claims from combat 
veterans because there is no formal evidence on the matters in question 
in the claimant's official military records.
  When common hazards exist in particular areas where our armed forces 
have or are serving, a means must be established to determine whether a 
particular veteran's claim of exposure to such hazard or matter is 
consistent with the circumstances of service in that area, even without 
evidence in individual official records. This proposed bill would 
establish a mechanism by requiring VA to promulgate regulations that 
would include standards that VA adjudicators would use for evaluating 
the consistency between lay evidence and claimed matters, such as 
exposure to factors common to servicemembers serving in particular 
combat areas.
  This proposed bill is intended to result in recognition by VA that, 
where there is evidence of common events, a veteran's testimony, if 
consistent with other evidence, would be accepted without requiring 
specific, formal evidence of individual exposure to the event. By law, 
lay testimony is currently recognized in claims where a veteran served 
in a military unit which participated in combat. While this bill is not 
intended to provide a presumption of service-connection for any 
particular disability, it should improve the accurate adjudication of 
claims in those cases where a veteran served in an area where certain 
events or exposures are widespread.
  For example, there is widespread agreement that those who have served 
in Iraq since the start of the conflict there have been exposed to 
improvised explosive devices--IEDs. However,

[[Page S4818]]

based on Committee oversight, it appears that it often happens that, 
when a veteran applies for compensation for disabilities related to IED 
exposure, such as tinnitus, the claim may be denied if the veteran's 
service medical record does not show treatment for tinnitus in service 
or otherwise documents exposure to an IED. Since it would be highly 
unusual to find documentation of treatment where a veteran in a combat 
zone has consulted with medical personnel for a relatively minor 
condition, such as exposure to an IED which did not cause acute 
observable injury, the formal records would not be of use to the 
claimant. The regulations required by the legislation I am introducing 
would likely include provision for conceding exposure to an IED in 
claims brought by veterans who served in Iraq.
  Another example of the problems that the legislation is designed to 
address involves claims from Korean war veterans, many of whom were 
exposed to extreme cold, but whose records may not have documentation 
of treatment for a cold injury or information on the actual temperature 
to which they were exposed. I would anticipate that the regulations 
required by this legislation would provide for VA to concede exposure 
to subfreezing temperatures in such cases if consistent with the 
location where the veteran served.
  I expect that this measure should speed the processing by claims, by 
not requiring each veteran to individually establish by official 
government records, which often do not document individual 
participation, exposure to one or more events which are well 
established as circumstances involving the place and type of the 
veteran's service.
  In closing, I note that this legislation has been developed in 
consultation with VA and with a variety of individuals and groups 
interested in VA claims but I do not view it as a final approach. I 
look forward to working with my colleagues on the Committee and in the 
Senate, as well as with those with an interest in this issue, to 
improve this bill so that combat veterans of the current conflicts and 
of earlier conflicts who allege exposure to well-recognized events will 
not be burdened by requirements of acquiring official evidence of 
individual participation in such events. This should help veterans 
receive the benefits they deserve in a timely manner. I urge support 
for this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 919

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Clarification of 
     Characteristics of Combat Service Act of 2009''.

     SEC. 2. CLARIFICATION OF ADDITIONAL REQUIREMENTS FOR 
                   CONSIDERATION TO BE AFFORDED TIME, PLACE, AND 
                   CIRCUMSTANCES OF SERVICE IN DETERMINATIONS 
                   REGARDING SERVICE-CONNECTED DISABILITIES.

       Subsection (a) of section 1154 of title 38, United States 
     Code, is amended to read as follows:
       ``(a)(1) The Secretary shall include in the regulations 
     pertaining to service-connection of disabilities the 
     following:
       ``(A) Additional provisions in effect requiring that in 
     each case where a veteran is seeking service-connection for 
     any disability due consideration shall be given to the 
     places, types, and circumstances of such veteran's service as 
     shown by such veteran's service record, the official history 
     of each organization in which such veteran served, such 
     veteran's medical records, and all pertinent medical and lay 
     evidence.
       ``(B) Additional provisions specifying that, in the case of 
     a veteran who served in a particular combat zone, the 
     Secretary shall accept credible lay or other evidence as 
     sufficient proof that the veteran encountered an event that 
     the Secretary specifies in such regulations as associated 
     with service in particular locations where the veteran served 
     or in particular circumstances under which the veteran served 
     in such combat zone.
       ``(C) The provisions required by section 5 of the Veterans' 
     Dioxin and Radiation Exposure Compensation Standards Act 
     (Public Law 98-542; 98 Stat. 2727).
       ``(2) In paragraph (1)(B), the term `combat zone' means a 
     combat zone for purposes of section 112 of the Internal 
     Revenue Code of 1986 or a predecessor provision of law.''.
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