Senate Report 105-343 - JUSTICE FOR ATOMIC VETERANS ACT OF 1998

[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.

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.

* * * * * * *