[Senate Report 105-343]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 596
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-343
_______________________________________________________________________


 
                JUSTICE FOR ATOMIC VETERANS ACT OF 1998

                                _______
                                

               September 22, 1998.--Ordered to be printed

_______________________________________________________________________


  Mr. Specter, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1385]

    The Committee on Veterans' Affairs, to which was referred 
the bill (S. 1385) to expand the list of diseases presumed to 
be service connected with respect to radiation-exposed 
veterans, having considered the same, reports favorably thereon 
with an amendment in the form of a substitute, and recommends 
that the bill, as amended, do pass.

                          Committee Amendment

    The amendments are as follows:
    Strike out all after the enacting clause as follows:

[SECTION 1. SHORT TITLE.

    [This Act may be cited as the ``Justice for Atomic Veterans Act of 
1997''.

[SEC. 2. EXPANSION OF LIST OF DISEASES PRESUMED TO BE SERVICE CONNECTED 
                    FOR RADIATION-EXPOSED VETERANS.

    [Section 1112(c)(2) of title 38, United States Code, is amended by 
adding at the end the following:
          [``(P) Lung cancer.
          [``(Q) Bone cancer.
          [``(R) Skin cancer.
          [``(S) Colon cancer.
          [``(T) Posterior subcapsular cataracts.
          [``(U) Non-malignant thyroid nodular disease.
          [``(V) Ovarian cancer.
          [``(W) Parathyroid adenoma.
          [``(X) Tumors of the brain and central nervous system.
          [``(Y) Rectal cancer.''.]

    Insert in lieu thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Justice for Atomic Veterans Act of 
1998''.

SEC. 2. EXPANSION OF LIST OF DISEASES PRESUMED TO BE SERVICE CONNECTED 
                    FOR RADIATION-EXPOSED VETERANS.

    Section 1112(c)(2) of title 38, United States Code, is amended by 
adding at the end the following:
          ``(P) Lung cancer.
          ``(Q) Ovarian cancer.
          ``(R) Tumors of the brain and central nervous system.''.

                              Introduction

    On November 6, 1997, Committee Member Paul Wellstone 
introduced S. 1385, the ``Justice for Atomic Veterans Act of 
1997.'' As introduced, S. 1385 would have expanded the list of 
diseases presumed to be service connected with respect to 
radiation-exposed veterans to include the following diseases: 
lung cancer; bone cancer; skin cancer; colon cancer; posterior 
subcapsular cataracts; non-malignant thyroid nodular disease; 
ovarian cancer; parathyroid adenoma; tumors of the brain and 
central nervous system; and rectal cancer.
    On April 21, 1998, the Committee held a hearing to receive 
testimony on pending legislation, including S. 1385. Testimony 
was received from the Honorable Kenneth W. Kizer, M.D., M.P.H., 
Under Secretary for Health, Department of Veterans Affairs 
(VA); the Honorable Joseph Thompson, Under Secretary for 
Benefits, VA; Ms. Joan Ma Pierre, Director for Electronics and 
Systems, Defense Special Weapons Agency, U.S. Department of 
Defense; Captain Richard L. LaFontaine, USN, U.S. Navy Bureau 
of Medicine and Surgery; Rosalie Bertell, Ph.D., International 
Institute of Concern for Public Health, Toronto, Canada; Mr. 
William J. Brady, Health Physicist; Otto Raabe, Ph.D., 
University of California, Davis; Richard B. Setlow, Ph.D., 
Brookhaven National Laboratory; Steve Wing, Ph.D., University 
of North Carolina; Mr. Tidoro A. Garcia; Mr. James J. Garrity; 
and Mr. Albert G. Parrish.

                           Committee Meeting

    After carefully reviewing the testimony from the foregoing 
hearing, the Committee met in open session on July 28, 1998, 
and voted unanimously to report S. 1385 with an amendment in 
the nature of a substitute.

                     Summary of S. 1385 as Reported

    S. 1385 as reported (hereinafter referred to as the 
``Committee bill'') contains amendments to title 38, United 
States Code, that would add to the statutory listing of 
diseases presumed to be service connected with respect to 
radiation-exposed veterans the following three diseases: lung 
cancer; ovarian cancer; and tumors of the brain and central 
nervous system.

                               Discussion

Background

    The Department of Veterans Affairs affords priority access 
to health care services and pays compensation to veterans who 
have sustained service-connected diseases or disabilities. See 
38 U.S.C. chapters 11 and 17. Generally, veterans will be 
deemed to be ``service-connected'' if they can show that there 
is a causal link between their military, naval or air service 
and their disease or disability. Alternatively, they will be 
presumed to be ``service-connected,'' even though they cannot 
demonstrate such a causal link, if they meet requirements 
established with respect to various statutory presumptions. For 
example, various chronic and tropical diseases will be presumed 
to be service-connected if they manifest within 1 year after 
the veteran's separation from service, and tuberculosis will be 
presumed to be service-connected if it manifests within 3 years 
after the veteran's separation from service. 38 U.S.C. 
Sec. 1112(a).
    The Radiation-Exposed Veterans Compensation Act of 1988, 
Public Law 100-321, subsequently amended by the Veterans 
Radiation Exposure Amendments of 1992, Public Law 102-578, 
established such presumptions with respect to veterans who 
participated in ``radiation-risk activities'' in service, i.e., 
those who participated in the occupation of Hiroshima or 
Nagasaki immediately after World War II or who were on site at 
atmospheric nuclear testing in the Pacific, Nevada, or 
elsewhere. See 38 U.S.C. Sec. 1112(c). If any such veteran 
manifests at any time any of 15 specified cancers (leukemia, 
multiple myeloma, non-Hodgkin's lymphomas, or cancers of the 
thyroid, breast, pharynx, esophagus, stomach, small intestine, 
pancreas, bile ducts, gall bladder, liver, salivary gland, or 
urinary tract), he or she will be presumed to be service-
connected. Accordingly, radiation-exposed veterans stricken 
with one of these presumed radiation-induced cancers will not 
have to prove a causal link between their service and the 
cancer to gain compensation and priority access to VA medical 
care. Radiation-exposed veterans stricken with other diseases 
are still eligible forcompensation. They must, however, 
establish the causal link that is presumed with respect to radiation-
exposed veterans stricken with the 15 presumptive cancers.
    In specifying the rules outlined above, the Committee 
relied principally on 1980 and 1989 reports issued by the 
National Academy of Sciences (NAS) Committee on the Biological 
Effects of Ionizing Radiation. These reports, commonly referred 
to as the NAS BEIR III and BEIR V reports, addressed the 
scientific basis of the effects of radiation exposure on humans 
and encompassed a review and evaluation of scientific knowledge 
on the effects of radiation exposure on humans developed since 
the first BEIR report was issued in 1972.
    BEIR III and BEIR V are now supplemented by a 1996 study by 
the Institute of Physics, London, titled Health Effects of 
Exposure to Low-Level Ionizing Radiation (HEELLIR). Of 
particular relevance is a chapter of HEELLIR titled ``Risk 
Estimates for Radiation Exposures'' by John D. Boice Jr., 
Ph.D., the former Chief of the Radiation Epidemiology Branch, 
National Cancer Institute, U.S. Department of Health and Human 
Services. Boice focuses particularly on exposures to low levels 
of radiation and the cancers that are associated with such 
exposures.

Committee bill

    The Committee bill would add the following three cancers to 
the list of presumptive radiation diseases: lung cancer; 
ovarian cancer; and tumors of the brain and central nervous 
system.
    In adding lung cancer, ovarian cancer, and tumors of the 
brain and central nervous system to the list of presumed 
radiation-induced cancers, the Committee relies on scientific 
support found in the BEIR III, BEIR V, and HEELLIR studies. 
Those sources indicate that lung cancer, ovarian cancer, and 
tumors of the brain and central nervous system have either a 
``convincing'' or ``very strong'' association with low-level 
exposures to radiation. Specifically, BEIR V describes all 
three cancers as ones that are ``induced by exposure to low 
levels of radiation.'' HEELLIR indicates that evidence of a 
connection between such exposure and ovarian cancer and tumors 
of the brain and central nervous system is ``convincing.'' 
HEELLIR states, further, that evidence of a connection between 
lung cancer and low-level exposure is ``very strong.'' Implicit 
in the Committee's addition of these three low level exposure 
cancers to the list of presumed radiation diseases is the 
presumption that veterans who participated in ``radiation risk 
activities'' and who were, therefore, actually on site at 
Hiroshima, Nagasaki, or at nuclear testing sites were exposed, 
at minimum, to low levels of radiation.
    The Committee is less than satisfied with the Nuclear Test 
Personnel Review (NTPR) Program of the Department of Defense 
(DOD). That program attempts to ``reconstruct'' radiation doses 
to which individual veterans, or groups of veterans, were 
exposed in service; VA relies on such ``dose reconstruction'' 
estimates in determining whether compensation will be granted 
to veterans who are stricken with non-presumptive diseases. The 
Committee's hearing on April 21, 1998, revealed that, within 
the panel of scientific authorities who testified, there is 
still significant disagreement on the health effects of low 
levels of ionizing radiation. None of these experts, however, 
spoke favorably on the use of dose reconstruction as an 
instrument for determining eligibility for VA benefits. 
Further, a 1995 Institute of Medicine study group report cast 
doubt on the reliability of the dose reconstruction database on 
which VA has relied, stating that information is missing or 
changed and that individual versus group data often varied 
significantly, and that, therefore, such data could not be used 
in epidemiological research.
    The Committee has requested that the General Accounting 
Office (GAO) conduct a thorough review to determine whether 
dose reconstruction can be relied on as a tool for measuring an 
individual claimant's past exposure to radiation. The Committee 
has requested, in addition, that GAO assess the proper role, if 
any, of DOD's dose reconstruction methods in determining 
whether individual veterans should be granted VA benefits.

                             Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by the Congressional Budget Office (CBO), 
estimates that the costs resulting from the enactment of the 
Committee bill, as compared to costs under current law and as 
scored against the current CBO baseline for the first 5 years 
following enactment, would be as follows: direct spending would 
increase by $13 million in fiscal year 1999, and would increase 
by $372 million in fiscal years 1999-2003. The bill would not 
affect the budgets of State, local, or tribal governments.
    The cost estimate provided by CBO, setting forth a detailed 
breakdown of costs, follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 17, 1998.
Hon. Arlen Specter,
Chairman, Committee on Veterans' Affairs
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1385, the Justice 
for Atomic Veterans Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Charles 
Riemann.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

S. 1385--Justice for Atomic Veterans Act of 1998

    Summary: S. 1385 would add lung cancer, ovarian cancer, and 
tumors of the brain and central nervous system to the list of 
15 diseases currently presumed to be connected to military 
service for certain veterans who were exposed to nuclear 
radiation. CBO estimates that enacting the bill would increase 
direct spending by $13 million in 1999 and by $372 million over 
the 1999-2003 period. In addition, it would increase 
discretionary spending by $1 million in 1999 and by $14 million 
over the five-year period, assuming appropriation of the 
necessary amounts. Because the bill would affect direct 
spending, pay-as-you-go procedures would apply.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not have any significant effect on the budgets of 
state, local, or tribal governments.
    Estimated Cost to The Federal Government: The estimated 
budgetary impact of S. 1385 is shown in the following table. 
Direct spending costs would stem from payments for disability 
compensation and dependency and indemnity compensation (DIC). 
Discretionary spending would increase because of the provision 
of additional medical care services, assuming appropriation of 
the necessary amounts. The costs of this bill fall within 
budget function 700 (veterans' affairs).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                     -----------------------------------------------------------
                                                        1998      1999      2000      2001      2002      2003
----------------------------------------------------------------------------------------------------------------
                                           CHANGES IN DIRECT SPENDING
Spending under current law for disability
 compensation:
    Estimated budget authority......................    17,115    18,271    19,296    20,784    22,193    23,587
    Estimated outlays...............................    17,039    18,164    19,252    20,741    22,158    23,554
Proposed changes:
    Estimated budget authority......................         0        14        58        91       106       111
    Estimated outlays...............................         0        13        55        88       105       111
Spending under S. 1385 for disability compensation:
    Estimated budget authority......................    17,115    18,285    19,354    20,875    22,299    23,698
    Estimated outlays...............................    17,039    18,177    19,307    20,829    22,263    23,665
                                        SPENDING SUBJECT TO APPROPRIATION
Spending under current law for veterans' medical
 care:
    Estimated authorization level \1\...............    17,739    17,739    17,739    17,739    17,739    17,739
    Estimated outlays...............................    17,615    18,122    17,763    17,739    17,739    17,739
Proposed changes:
    Estimated authorization level...................         0         1         2         3         4         4
    Estimated outlays...............................         0         1         2         3         4         4
Spending under S. 1385 for veterans' medical care:
    Estimated authorization level \1\...............    17,739    17,740    17,741    17,742    17,743    17,744
    Estimated outlays...............................    17,615    18,123    17,765    17,742    17,743    17,744
----------------------------------------------------------------------------------------------------------------
\1\ The 1998 level is the amount appropriated for that year. The current law amounts for 1999-2003 assume that
  appropriations remain at the 1998 level. If they are adjusted for inflation, the base amounts would rise by
  about $600 million a year, but the estimated changes would remain as shown.

    Disability Compensation.--The Radiation-Exposed Veterans 
Compensation Act of 1988 (Public Law 100-321) established 
presumptions of service connection for 13 cancers for veterans 
who participated on-site in an atmospheric nuclear weapons test 
or in the occupation of Hiroshima and Nagasaki. That act was 
amended in 1992 by Public Law 102-578, which added two cancers 
to the list of presumed service-connected diseases. S. 1385 
would add lung cancer, ovarian cancer, and tumors of the brain 
and central nervous system to that list. By requiring a 
presumption that, for certain veterans, the three illnesses are 
service-connected, the bill would add to the number of 
radiation-exposed veterans who are eligible for disability 
compensation or whose spouses are eligible for DIC benefits. 
CBO estimates that enactment of S. 1385 would increase direct 
spending by about $13 million in 1999 and by about $372 million 
over the 1999-2003 period.
    Data from the Defense Special Weapons Agency (DSWA), 
formerly the Defense Nuclear Agency, indicate that 
approximately 210,000 military, civilian, and contract 
personnel employed by the Department of Defense (DoD) 
participated in atmospheric nuclear tests. In addition, 
approximately 200,000 DoD personnel participated in the post-
war occupation of Hiroshima and Nagasaki, Japan. CBO estimates 
that about 200,000 of these veterans are alive today, assuming 
that the average participant was 24 years old.
    To estimate the caseload of veterans having each disease, 
CBO used disease and age-specific incidence and mortality rates 
from the National Cancer Institute (NCI). (CBO has no basis for 
estimating different incidence and mortality rates for this 
particular population.) Based on this analysis, CBO estimates 
that about 3,500 of these veterans and about 9,000 spouses of 
deceased veterans would be eligible for benefits in 1999. The 
estimate assumes that approximately 20,000 of these veterans 
died from the three diseases during the 1945-1998 period, that 
two-thirds of the deceased veterans had spouses, and that 20 
percent of those spouses remarried, making them ineligible for 
DIC.
    For the 1999-2003 period, CBO estimates benefit payments 
based on the incidence of the three diseases, expected 
mortality rates among veterans and survivors, the number of 
potential beneficiaries at the start of 1999, and assumptions 
about annual participation. CBO projects that, of the 12,500 
veterans and survivors who would be eligible for benefits in 
1999, about 2,400 would receive benefits in that year. 
Recognizing that a small number of affected veterans and 
survivors may draw benefits under current law and that not all 
potential new beneficiaries would participate, this estimate 
assumes that, ultimately, 50 percent of all eligible survivors 
at the end of 1998 would apply for benefits and 75 percent of 
all veterans and post-1998 survivors would participate in the 
program. The estimate also assumes that it would take about 
three years to reach the full estimated participation rate. CBO 
anticipates that in 2003 about 8,500 veterans and survivors 
would receive benefits as a result of the bill.
    CBO used data from VA that was specific to the three 
diseases to calculate the average compensation payment to 
veterans. Average annual benefits for veterans with the three 
diseases are approximately $16,000 for brain cancer, $15,300 
for lung cancer, and $5,000 for ovarian cancer, reflecting the 
differing disability ratings of veterans currently receiving 
benefits for these illnesses. However, those benefit levels 
also include payments to veterans for additional disabilities, 
and thus incremental benefits under S. 1385 would be less than 
those averages. CBO has no information as to what portions of 
those averages stem from disabilities other than those covered 
by the bill. We assume that incremental compensation benefits 
would fall below those averages by about $2,000. For DIC 
recipients, the estimated benefit is approximately $11,000 
annually for all survivors. This estimate also assumes that 
beneficiaries would receive annual cost-of-living adjustments.
    Medical Care.--VA provides medical care to veterans based 
on priorities established in law. The highest priorities are 
given to veterans with service-connected disabilities, but VA 
also has a program under current law to provide health care to 
veterans with potentially radiogenic diseases, but only for 
treatment of those diseases. Under S. 1385 certain veterans 
with lung, brain, and ovarian cancer would receive the highest 
priorities because their diseases would be presumed to be 
service-connected. By requiring this presumption of service 
connection, the bill would probably draw a greater number of 
veterans to VA for care. It might also lead some veterans who 
currently receive care from VA to have a greater share of their 
needs taken care of by VA.
    CBO estimates that the bill would raise the costs of 
veterans' medical care by about $1 million in 1999 and by about 
$14 million over the 1999-2003 period, assuming appropriation 
of the necessary amounts. The CBO estimate depends primarily on 
assumptions about how many of the affected veterans already 
enjoy the highest priorities, how many veterans the bill would 
attract to the VA health system, and how many current patients 
would receive a greater range of care. The key assumptions are 
as follows:
    Roughly one-third of these veterans would already have high 
priority access based on other compensable service-connected 
disabilities or income, as allowed under current law. (This 
figureis based on CBO's estimate of the proportion of World War 
II veterans with such status in 1996.)
    Similarly, about one-third of the veterans who gain a 
higher priority would use VA medical services. CBO estimates 
that VA would spend about $21,000 annually per new patient, 
which is roughly five times VA's average annual cost per user. 
This cost factor is based on a recent study showing a 
comparable difference between Medicare's average annual cost 
per beneficiary with certain types of cancer, including lung 
cancer, and all beneficiaries who receive medical care.
    One-fourth of the veterans who would use priority care 
under this bill would already be receiving cancer treatment 
from VA, based on data from the 1992 Survey of Veterans. CBO 
estimates that VA would spend an additional $900 annually for 
these veterans, based on VA's per capita spending in 1997 for 
veterans at the third priority level compared to veterans in 
the sixth priority level.
    Pay-As-You-Go Considerations: Section 252 of the Balanced 
Budget and Emergency Deficit Control Act sets up pay-as-you-go 
procedures for legislation affecting direct spending or 
receipts. The net changes in outlays and governmental receipts 
that are subject to pay-as-you-go procedures are shown in the 
following table. For the purposes of enforcing pay-as-you-go 
procedures, only the effects in the current year, the budget 
year, and the succeeding four years are counted.

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                           ---------------------------------------------------------------------
                                             1999   2000   2001   2002   2003   2004   2005   2006   2007   2008
----------------------------------------------------------------------------------------------------------------
Changes in outlays........................     13     55     88    105    111    117    123    128    133    136
Changes in receipts.......................                              Not Applicable
----------------------------------------------------------------------------------------------------------------

    Intergovernmental and private-sector impact: The bill 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would not have 
any significant effect on the budgets of state, local, or 
tribal governments.
    Estimate prepared by: Federal costs: Charles Riemann 
(compensation) and Shawn Bishop (medical care); Impact on 
State, local, and tribal governments: Marc Nicole; Impact on 
the private sector: Rachel Schmidt.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                       Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact which 
would be incurred in carrying out the Committee bill. The 
Committee finds that the Committee bill would not entail any 
significant regulation of individuals or businesses or result 
in any significant impact on the personal privacy of any 
individuals, and that the paperwork resulting from enactment 
would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7 of rule XXVI of the Standing 
Rules of the Senate, the following is a tabulation of votes 
cast in person or by proxy by members of the Committee on 
Veterans' Affairs at its July 28, 1998, meeting. On that date, 
the Committee, by unanimous voice vote, ordered S. 1385, as 
amended, reported favorably to the Senate.

                              Agency Report

    On April 21, 1998, the Committee held a hearing to receive 
testimony on pending legislation, including S. 1385. Testimony 
was received from the Honorable Kenneth W. Kizer, M.D., M.P.H., 
Under Secretary for Health, Department of Veterans' Affairs, 
and the Honorable Joseph Thompson, Under Secretary for 
Benefits, Department of Veterans' Affairs. An excerpt from that 
testimony is reprinted below:

      Statement of Department of Veterans Affairs, April 21, 1998

    Mr. Chairman, and Members of the Committee, we are pleased 
to be here this morning to discuss a number of issues 
concerning radiation-exposed, or ``atomic'' veterans. Your 
invitation letter of April 10, 1998, indicated that today's 
hearing would focus on the following items or issues: (1) S. 
1385, a bill to amend title 38, United States Code, to expand 
the number of diseases presumed to be service connected with 
respect to radiation-exposed veterans, introduced by Senator 
Wellstone; (2) S. 1822, a bill to amend title 38, United States 
Code, to authorize provision of care to veterans treated with 
nasopharyngeal radium irradiation, introduced by the Chairman 
at VA's request; (3) current ``dose reconstruction'' policies 
that govern claims for service connection of radiation-related 
disabilities, and (4) the Federal government's response to the 
needs of atomic veterans.
    Adjudication of Claims for Service Connection of 
Disabilities or Deaths Associated With Exposure to Ionizing 
Radiation
    First, Mr. Chairman, we believe it would be beneficial to 
review how the Department of Veterans Affairs (VA) has 
responded to the needs of atomic veterans and to describe the 
process by which VA adjudicates claims for service connection 
of disabilities or deaths associated with exposure to ionizing 
radiation.
    Approximately 195,000 U.S. servicemen were involved in the 
occupation of Hiroshima and Nagasaki during World War II. 
Another 205,000 participated at U.S. tests of atmospheric 
nuclear devices between 1945 and 1962. As more became known 
about the long-term health effects of exposure to radiation, 
these ``atomic veterans'' raised legitimate concerns about 
possible adverse consequences to their health. While there are 
still areas of uncertainty surrounding the long-term health 
effects of exposure, it is now generally agreed that many forms 
of cancer can be induced by ionizing radiation but may not 
actually become manifest until many years after exposure.
    There have also been concerns raised about the accuracy of 
dose estimates provided from official military records. For 
example, many believe that the film badges issued in connection 
with atmospheric testing provide an incomplete measurement of 
exposure.
    On October 24, 1984, the Veterans' Dioxin and Radiation 
Exposure Compensation Standards Act, Pub. L. No. 98-542, was 
enacted to ensure compensation to veterans and their survivors 
for disabilities or deaths related to exposure to ionizing 
radiation during atmospheric nuclear testing or the occupation 
of Hiroshima and Nagasaki. The law instructed VA to prescribe 
regulations setting forth specific guidelines, standards, and 
criteria for adjudicating compensation claims based on 
radiation exposure. (Pub. L. No. 98-542 also made similar 
provisions regarding Vietnam veterans exposed to herbicides 
containing dioxin, but Pub. L. No. 102-4, the Agent Orange Act 
of 1991, removed those provisions and substituted the 
requirements and procedures now codified at 38 U.S.C. 
Sec. 1116.)
    On September 25, 1985, VA published 38 C.F.R Sec. 3.311b 
(now designated Sec. 3.311) to implement the radiation 
provisions of Pub. L. No. 98-542. This regulation contains 
standards and criteria under which service connection is to be 
considered for diseases first appearing after service in 
radiation-exposed veterans.
    A disability may be considered to be service connected if 
it results from injury or disease incurred or aggravated in 
line of duty during active military service. In the case of 
certain chronic diseases, disability may be considered to be 
service connected on a presumptive basis if the disease appears 
within a specific time period following active service. Under 
VA regulations, direct service connection may be established 
for disability from a disease first manifesting itself after 
active service, but not during any applicable presumptive 
period, when all evidence establishes that the disease is 
related to an in-service event. Section 3.311 is intended to 
assist veterans whose claims for compensation fall under this 
latter provision. Although the regulation does not provide 
presumptive service connection, its procedures offer the 
veteran a detailed, multilevel review.
    Under section 3.311, several factors are taken into 
consideration in determining whether a veteran's disease 
resulted from exposure to ionizing radiation during service:
          (1) the probable radiation dose, including type, 
        rate, and duration;
          (2) the relative sensitivity of the tissue involved 
        to induction of the disease by ionizing radiation;
          (3) the veteran's gender and pertinent family 
        history;
          (4) the veteran's age at time of exposure;
          (5) the time lapse between exposure and onset of the 
        disease; and
          (6) the extent to which exposure to radiation or 
        other carcinogens outside of military service might 
        have contributed to development of the disease.
    Although Pub. L. No. 98-542 mentioned only two sources of 
exposure, atmospheric nuclear testing and the occupation of 
Hiroshima and Nagasaki, the applicability of 38 C.F.R 
Sec. 3.311 is not limited to these situations. The regulation's 
provisions cover veterans who were exposed from any source 
while on active duty. Hence, the claims of all veterans who 
were exposed occupationally or therapeutically may receive 
consideration under section 3.311.
    For the purposes of section 3.311, a veteran is under no 
obligation to provide evidence establishing his or her presence 
at the site of exposure, so long as official military records 
are consistent with the claim that the veteran was present. If 
military records do not establish the veteran's presence or 
absence from the exposure site, we concede that the veteran was 
present.
    If a veteran alleges exposure from atmospheric testing or 
from the occupation of Nagasaki and Hiroshima, our source for 
providing a dose reconstruction is the Defense Special Weapons 
Agency (DSWA), formerly the Defense Nuclear Agency. If other 
types of exposure are alleged, VA has responsibility for 
requesting preparation of a dose estimate from official 
military records. A veteran may submit an alternative dose 
estimate from a credible source (a person or organization 
certified to have the requisite scientific expertise). When it 
is necessary to reconcile a material difference between the 
dose estimate developed from official military records and that 
developed by a credible source, VA obtains a separate estimate 
prepared by an independent expert selected by the Director of 
the National Institutes of Health.
    It should be emphasized that VA does not verify 
participation or provide radiation doses for atomic veterans. 
These are mandated responsibilities of the DSWA. Because many 
service personnel were not issued radiation badges and due to 
other problems with dose measurement, the DSWA frequently has 
to provide exposure estimates by dose reconstruction. It is our 
understanding that the DSWA philosophy is to overestimate 
(``high-side'') doses rather than underestimate them. When the 
DSWA reports a dose range, VA uses the ``upper bound'' dose in 
formulating medical opinions.
    Based on the information provided by DSWA, most veterans 
received relatively low radiation doses. The average dose for 
atmospheric nuclear weapons test participants was 0.6 rem and 
fewer than 1% participants received over 5 rem. The DSWA 
estimates that the maximum exposure for service personnel 
involved in the occupation of Hiroshima and Nagasaki was less 
than 1 rem.
    Following the dose reconstruction development, a claim for 
compensation under 38 C.F.R. Sec. 3.311 is referred by the 
regional office of jurisdiction to VA Central Office for review 
by the Director of the Compensation and Pension Service, who 
forwards each case for a medical opinion to the office of the 
Assistant Chief Medical Director for Public Health and 
Environmental Hazards. Upon receiving that opinion, the 
Director of the Compensation and Pension Service issues an 
advisory opinion whether it is at least as likely as not that 
the veteran's disease is the result of exposure to ionizing 
radiation during military service. The regional office of 
jurisdiction uses this opinion in reaching a final decision. If 
the Director of the Compensation and Pension Service is unable 
to conclude whether it is at least as likely as not that the 
veteran's disease is the result of exposure to ionizing 
radiation during military service, the claim may be referred to 
an outside consultant for another evaluation. The outside 
consultant is selected by the Under Secretary for Health upon 
the recommendation of the Director of the National Cancer 
Institute.
    Currently, 38 C.F.R. Sec. 3.311 specifies 22 diseases as 
radiogenic. We have published a proposed amendment to this rule 
to add ``prostate cancer'' and ``all other cancers'' as 
radiogenic diseases for purposes of section 3.311. The final 
amendment is now under Departmental review.
    Originally, a veteran must have had one of the listed 
radiogenic diseases before the provisions of 38 C.F.R. 
Sec. 3.311 would apply. In 1994, the U.S. Court of Appeals for 
the Federal Circuit ruled that VA did not have the authority to 
adopt an exclusive list of radiogenic diseases (Combee v. 
Brown). In addition, section 501(b) of Pub. L. No. 103-446 
amended title 38, U.S.C. to allow veterans to pursue service 
connection on a direct basis for any diseases not considered 
``radiogenic.'' In February 1995, we amended section 3.311 to 
allow consideration of diseases other than those listed as 
radiogenic. However, if the claimed disease is not one of the 
listed diseases, the veteran must cite or submit competent 
scientific or medical evidence showing that it is radiogenic 
before consideration under the regulation may be made.
    VA receives advice on the relationships of various diseases 
to ionizing radiation from the Veterans'' Advisory Committee on 
Environmental Hazards, which was established by Pub. L. No. 98-
542. The Committee is composed of medical and scientific 
authorities in fields related to the health effects of ionizing 
radiation; individuals recognized as authorities in such fields 
as epidemiology and other scientific disciplines pertinent to 
assessing the health effects of ionizing radiation; and members 
of the general public, including at least one disabled veteran, 
with interest and experience relating to veterans' concerns 
about exposure to ionizing radiation.
    Currently, the Committee has nine members and includes 
several distinguished scientists and physicians who have 
extensive involvement in the issues related to ionizing 
radiation. Three of the members recently served on the 
President's Advisory Committee on Human Radiation Experiments. 
All members, past and present, have brought with them 
experience and expertise that have served us well since 1985. 
The Committee has met 29 times since then, most recently on 
January 21 and 22, 1998. The next meeting is scheduled for May 
20-21 of this year.
    Mr. Chairman, the procedures established by 38 C.F.R. 
Sec. 3.311 are for application regardless of either the source 
or level of exposure to ionizing radiation. The regulatory 
criteria apply to claims in which service connection cannot be 
established under other provisions of law. Through application 
of the regulation's detailed standards in each individual case, 
it is our intent to establish service connection for all 
veterans whose diseases are shown by the scientific and medical 
evidence to be related to radiation exposure while on active 
duty.
    Despite the passage of Pub. L. No. 98-542 and its 
implementation in 38 C.F.R Sec. 3.311, Congress remained 
concerned that these measures were insufficient to compensate 
all deserving veterans and survivors for disabilities and 
deaths resulting from exposure to ionizing radiation. 
Therefore, further legislation was enacted.
    Pub. L. No. 100-321, effective May 1, 1988, (codified at 38 
U.S.C. Sec. 1112(c)) provided compensation on a presumptive 
basis for radiation-exposed veterans who developed one of 13 
specified diseases to a degree of 10 percent or more within 40 
years following participation in a radiation risk activity. The 
presumptive period for one of the 13 diseases, leukemia, was 
set at 30 years.
    The law defined a radiation-risk activity as:
          (1) on-site participation at the atmospheric 
        detonation of a nuclear device;
          (2) occupation of Hiroshima and Nagasaki; and
          (3) internment as a POW in Japan during World War II, 
        resulting in an opportunity for exposure.
    Pub. L. No. 100-321 is implemented by VA regulations at 38 
C.F.R Sec. 3.309(d). Subsequent legislation has expanded or 
modified the original provisions of this law. Pub. L. No. 102-
86 (enacted August 14, 1991) increased the presumptive period 
for leukemia to 40 years and expanded eligibility for 
presumptive service connection to persons who participated in 
radiation-risk activities during a period of active duty for 
training or inactive duty for training.
    Pub. L. No. 102-578 (enacted October 30, 1992) added 
cancers of the salivary gland and urinary tract to the list of 
presumptive diseases, effective October 1, 1992. VA has defined 
``urinary tract'' as the kidneys, renal pelves, ureters, 
urinary bladder, and urethra. Pub. L. No. 100-578 also removed 
both the requirement that a disease be 10 percent disabling at 
the time it first appears and the 40-year presumptive period. 
The diseases may now appear at any time following exposure to 
ionizing radiation for the presumption to apply.
    Section 501(a) of Pub. L. No. 103-446 (November 2, 1994) 
also clarified the intent of Congress that onsite participation 
at the atmospheric detonation of a nuclear device was not to be 
limited to participation in a test conducted by the United 
States.
    The presumptive provisions in statute are more limited in 
their applicability than 38 C.F.R. Sec. 3.311, affecting only 
those ``radiation-exposed'' veterans who participated in 
atmospheric nuclear testing, those involved in the occupation 
of Hiroshima and Nagasaki, and some who were prisoners of war 
in Japan. However, so long as participation in a radiation-risk 
activity and the existence of one of the presumptive diseases 
can be established, service connection can be granted. The 
extensive development for information and the detailed 
examination of the various factors required by 38 C.F.R 
Sec. 3.311 are not part of the framework of 38 C.F.R. 
Sec. 3.309(d).
    Since 1985, we have tracked radiation claims, as well as 
other issues, in our Special Issue Rating System, or SIRS. This 
data base was established as a means of collecting information 
about claims that fall into categories of special interest to 
the Department and Congress. It was intended as a tool for 
identifying the number of claimants and the type of 
disabilities claimed in each special category. Prior to the 
establishment of SIRS, VA maintained information in a similar 
automated data base operated by an independent contractor, who 
was responsible for input of information from rating sheets 
provided by the regional offices. The data in this system 
served as the foundation for the records initially entered into 
SIRS. The following information is based on data concerning 
radiation cases tracked in SIRS.
    As of April 14, 1998, we have received radiation-related 
compensation claims from 19,885 veterans and survivors. In 
2,406 cases we have established service connection for at least 
one condition claimed to have resulted from exposure to 
ionizing radiation. Presumptive service connection has been 
established in 498 of these cases. They are broken down as 
follows:
          Exposure from atmospheric testing--321
          Exposure from Hiroshima and Nagasaki (including 
        prisoners of war)--177
    In the remaining 1,908 cases, our data base does not 
specify that service connection was necessarily established 
under the criteria of 38 C.F.R Sec. 3.311, as opposed to other 
provisions of statute or regulations. However, the distribution 
of grants is as follows:
          Exposure from atmospheric testing--1,057
          Exposure from Hiroshima and Nagasaki (including 
        prisoners of war)--351
          Occupational or therapeutic exposure--300
          Other types of exposure--200
    SIRS was not intended to provide the level of information 
that is required to answer the questions that are now recurring 
with increasing frequency and increasing urgency. We recognize 
that answers to these questions could enhance the overall 
effectiveness of the programs we have in place to assist 
veterans. Therefore, we have taken steps to implement an 
improved version of SIRS that will allow us to provide more 
detailed and sophisticated information about the claims in each 
of the special categories.
VHA Ionizing Radiation Program
    Mr. Chairman, we would also like to provide information 
about the Veterans Health Administration's (VHA) Ionizing 
Radiation Program. Currently the Ionizing Radiation Program is 
available to veterans who potentially were exposed to radiation 
following the atomic bombing of Hiroshima and Nagasaki, Japan, 
and participants of U.S. atmospheric nuclear weapons tests.
    The Ionizing Radiation Program consists of two components. 
First, atomic veterans are eligible to participate in the 
Ionizing Radiation Registry Examination Program. This includes 
a complete medical history, physical examination, standard 
diagnostic tests, and additional specialized tests and 
consultations if needed. Approximately 22,000 Ionizing 
Radiation Registry examinations have been performed as of 
December 1997.
    It should be emphasized that the Ionizing Radiation 
Registry program basically fulfills a clinical care purpose by 
offering atomic veterans a free health examination which 
potentially serves as an entry point for VA care. Because the 
participants are self-selected and the historical information 
is not verified, the registry database cannot be used for 
epidemiological research.
    Second, these veterans now have special eligibility for 
treatment of the 26 diseases currently covered by 
``presumptive'' legislation and/or recognized by VA as 
potentially radiogenic by regulation. Prior to the enactment of 
the Veterans'' Health Care Eligibility Reform Act of 1996 (Pub. 
L. No. 104-262), atomic veterans had special eligibility for 
treatment of any condition except those determined to result 
from a cause other than the radiation exposure. Care for these 
conditions is provided without regard to the veteran's age, 
service-connected status, or ability to defray the cost of 
medical care, and no co-payment by the veteran is required.
    In other words, even if an atomic veteran has never filed a 
compensation claim or if the claim has been denied, the veteran 
can still receive free care for potentially radiogenic 
diseases. In general we believe that this program is working 
satisfactorily. We have received a few complaints from veterans 
that some VA medical centers were not familiar with the special 
programs available to radiation-exposed veterans. The VHA's 
Office of Public Health and Environmental Hazards has provided 
additional information to medical centers throughout the VA 
system. Also, VA's proposal in S. 1822 (discussed below) would 
make veterans treated with nasopharyngeal (NP) radium 
irradiation during military service eligible for the VHA 
Ionizing Radiation Program.
S. 1385
    Mr. Chairman, S. 1385, the ``Justice for Atomic Veterans 
Act of 1997,'' would amend section 1112(c) of title 38, United 
States Code, by adding 10 new diseases to the list of diseases 
in that section that are presumed to be service connected for 
radiation-exposed veterans. Currently, there are 15 cancers for 
which this presumption is provided: leukemia (other than 
chronic lymphocytic leukemia); cancer of the thyroid, breast, 
pharynx, esophagus, stomach, small intestine, pancreas, bile 
ducts, gall bladder, salivary gland, and urinary tract; 
multiple myeloma; lymphomas (except Hodgkin's disease); and 
primary liver cancer (except if cirrhosis or hepatitis B is 
indicated). S. 1385 would add to this list the following 
diseases: lung cancer, bone cancer, skin cancer, posterior 
subcapsular cataracts, non-malignant thyroid nodular disease, 
ovarian cancer, parathyroid adenoma, tumors of the brain and 
central nervous system, and rectal cancer. The amendment to 
section 1112(c) would be effective on the date of enactment of 
the Act.
    Mr. Chairman, VA opposes this bill. VA has never advocated 
presumptions of service connection for radiation-related 
claims. The extent of exposure to ionizing radiation 
experienced by atomic test participants and Hiroshima/Nagasaki 
occupation forces has been thoroughly studied, and the results 
peer reviewed. The military services have documented that 
individual exposures were, for the most part, so low as to pose 
little health risk to most former members--as dose-responses 
are currently understood from decades of observations of 
exposed populations, primarily the Japanese atomic-bomb 
survivors. We are aware that these data are not without their 
critics, but if the doses were significantly higher than 
reported to VA or the health risks much greater from the 
reported doses, the effects would be observable when sizable 
populations of exposed veterans have been studied. Yet, studies 
such as the 1996 Institute of Medicine's ``Mortality of Veteran 
Participants in the CROSSROADS Nuclear Test,'' which analyzed 
causes of death among 40,000 test participants, have not borne 
this out. The authors of that report determined that exposure 
to ionizing radiation did not contribute to increased mortality 
among this sizable study population.
    We have concluded that, under the circumstances, blanket 
presumptions of service connection for cancers suffered by 
atomic veterans would be vastly over-inclusive, and that the 
more responsible policy is to afford claimants case-by-case 
determinations based on the individual merits of their unique 
cases. If evidence ever comes to light suggesting this approach 
poses substantial risks of causing injustices to claimants, we 
would, of course, rethink our position.
    S. 1385 is subject to the pay-as-you-go requirement of the 
Omnibus Budget Reconciliation Act of 1990, and if enacted, it 
would increase direct spending. VA's preliminary estimate 
indicates that enactment of S. 1385 would result in a benefits 
cost of $287 million in fiscal year 1999, and a 5-year total 
cost, through fiscal year 2003, of $1.7 billion. We estimate 
further that the enactment of this bill would result in an 
administrative cost of approximately $6.4 million in fiscal 
year 1999, and a 5-year total cost of $9 million.

           *       *       *       *       *       *       *

    Mr. Chairman, that concludes VA's testimony.

          Changes in Existing Law Made by S. 1385 as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Committee bill, as reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *


                       PART II--GENERAL BENEFITS

CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH

           *       *       *       *       *       *       *


Subchapter II--Wartime Disability Compensation

           *       *       *       *       *       *       *


Sec. 1112. Presumptions relating to certain diseases disabilities

    (a) * * *

           *       *       *       *       *       *       *

    (c)(1) * * *
    (2) The diseases referred to in paragraph (1) of this 
subsection are the following:
          (A) * * *

           *       *       *       *       *       *       *

          (P) Lung cancer.
          (Q) Ovarian cancer.
          (R) Tumors of the brain and central nervous system.

           *       *       *       *       *       *       *


                                
