SUSAN H. MATHER, M.D., M.P.H.
CHIEF PUBLIC HEALTH AND ENVIRONMENTAL HAZARDS OFFICER
DEPARTMENT OF VETERANS AFFAIRS
BEFORE THE HOUSE COMMITTEE ON GOVERNMENT REFORM
SUBCOMMITTEE ON NATIONAL SECURITY, VETERANS AFFAIRS
AND INTERNATIONAL RELATIONS
HEARING ON VA'S IMPLEMENTATION OF THE
"PERSIAN GULF WAR VETERANS ACT OF 1998"
April 22, 1999
Mr. Chairman and members of the Subcommittee, it is a pleasure to appear before you to describe and discuss implementation of the "Persian Gulf War Veterans Act of 1998," which was enacted on October 21, 1998, as part of omnibus consolidated appropriations legislation, Public Law 105-277. Accompanying me today are Mr. John H. Thompson, Deputy General Counsel, Dr. Frances M. Murphy, Chief Consultant, Occupational and Environmental Health, and Mr. Bob Epley, Director, Compensation and Pension Service.
Although the letter inviting us today refers to VA’s implementation of the "Persian Gulf War Veterans Act of 1998," (Gulf War Veterans Act), VA is also charged with simultaneously implementing the provisions of section 101 of the "Veterans Programs Enhancement Act of 1998" (Programs Enhancement Act), which establishes an overlapping framework for addressing issues relating to the health status of Persian Gulf War veterans. Thus, our implementation of the former statute must take into account our responsibilities under the latter.
The Programs Enhancement Act was originally introduced in the 105th Congress as H.R. 4110. H.R. 4110 was passed by the House of Representatives on October 10, 1998. It was subsequently passed, without amendment, by the Senate and cleared for the President on October 21, 1998. Passage of this measure by the Senate occurred only hours after its final action on an omnibus appropriation measure, H.R. 4328 (Making Omnibus Consolidated and Emergency Supplemental Appropriations for Fiscal Year 1999), which included in Division C, title XVI, the Gulf War Veterans Act provisions (based on the adoption of an amendment offered by Senator Robert Byrd). The omnibus appropriation measure was signed into law that same day. The Programs Enhancement Act was signed into law on Veterans Day, November 11, 1998. Thus, VA was presented with the unusual situation of interpreting and implementing two similar-purpose acts that were passed within hours of one another.
Although similar in purpose, there are several instances in which these measures take seemingly inconsistent approaches to the study of health risks associated with service in the Gulf War and to provision of compensation to veterans who may have incurred disability as a result of Gulf War service. In addition, the Gulf War Veterans Act contains a provision (section 1604) purporting to nullify "section 101 of the Veterans Programs Enhancement Act of 1998, or any similar provision of law enacted during the second session of the 105th Congress requiring an agreement with the National Academy of Sciences (NAS) regarding an evaluation of health consequences of service in Southwest Asia during the Persian Gulf War."
Section 101 of the Programs Enhancement Act requires the Secretary of Veterans Affairs to seek to enter into a contract with the NAS for the purpose of conducting a review and evaluation of available scientific and medical information regarding the health status of Gulf War veterans and the health consequences of exposures to risk factors during service in the Gulf War, including identification of risk factors to which Gulf War veterans may have been exposed, the illnesses that are associated with such factors, and the illnesses that are manifest in such members to a higher degree than in comparison groups. The measure contemplates that, under the contract, the NAS will be required to determine (to the extent available scientific evidence permits) whether, for each illness identified, there is scientific evidence of an association with Gulf War service or exposure during Gulf War service to one or more risk factors. Under the contemplated contract, the NAS will be required to perform subsequent reviews of available evidence and data and to periodically report to the Secretary of Veterans Affairs and the Committees on Veterans’ Affairs concerning its activities.
The Secretary is, in turn, required to review each report from the NAS and, based on that review, submit to the Committees on Veterans' Affairs a report on the available scientific and medical information regarding the health consequences of Gulf War service and of exposures to risk factors during service in the Gulf War. The Secretary is required to include in the report the Secretary's recommendations as to whether there is sufficient evidence to warrant a presumption of service connection for the occurrence of a specified condition in Gulf War veterans.
The Gulf War Veterans Act also includes requirements for the Secretary to seek to enter into an agreement with the NAS for the review of available scientific information regarding the health of Gulf War veterans and for submission by the NAS of its findings and recommendations. However, there is a major distinction between the two statutes as to actions the Secretary of Veterans Affairs must
take following receipt of a report from the NAS. In particular, the Gulf War Veterans Act requires the Secretary to determine, based on the NAS report, whether particular illnesses warrant a presumption of service connection and, if so, to promulgate regulations establishing a presumption of service connection for each such illness. This contrasts sharply with the Programs Enhancement Act requirement that the Secretary report to Congress any recommendation regarding the establishment of a presumption of service connection for any illness. In addition, the two acts differ in several respects concerning study details and the timing and submission of reports.
In view of the inconsistencies between the two statutes and the purported nullification provision in the Gulf War Veterans Act, on December 8, 1998, VA’s General Counsel asked the Department of Justice, Office of Legal Counsel (OLC), for an opinion regarding VA’s implementation of the two statutes. The General Counsel requested OLC’s opinion on the legal effect of section 1604 of the Gulf War Veterans Act, including whether this provision improperly infringes on Congress’ power under the Constitution to legislate changes to existing law. The General Counsel requested that, in the event OLC were to conclude that section 1604 of the Gulf War Veterans Act is not effective to nullify section 101 of the Programs Enhancement Act, OLC render an opinion as to whether the two statutes as a whole, or particular provisions identified by the General Counsel which appear to take inconsistent approaches to particular aspects of the matter covered, could be reconciled. The General Counsel asked further that, to the extent that irreconcilable conflicts were found to exist between the two statutes, the OLC provide guidance in resolving these conflicts.
The OLC responded to the General Counsel’s letter on March 12, 1999. In brief, the OLC opined that: "(1) section 1604 of the [Gulf War Veterans Act] is constitutionally invalid and ineffective insofar as it purports to nullify certain described legislation (including section 101 of the [Programs Enhancement Act]) that might be enacted in the future; (2) under governing principles of statutory interpretation, every effort must be made to reconcile the provisions of two statutes enacted under the circumstances presented, before resorting to rules of construction for giving one primacy over the other; and (3) the respective provisions of the two laws … although redundant and burdensome in some respects if both laws are given effect, are not inherently conflicting or mutually exclusive, and therefore the provisions of both laws must be treated as valid and effective."
The OLC determined that since the Programs Enhancement Act was passed by Congress and signed into law by the President after the Gulf War Veterans Act, the Programs Enhancement Act constitutes the later enacted of the two statutes. Next, the OLC determined that section 1604 of the Gulf War Veterans Act cannot constitutionally nullify the subsequent enactment of section 101 of the Programs Enhancement Act.
With respect to the areas of conflict between the two statutes, the OLC found the most significant variation between the two bills to be the action required to be taken by the Secretary after receiving a report from the NAS. The OLC determined, however, that the two provisions are not mutually exclusive, that compliance with both of these provisions would not appear to be inordinately burdensome, and that VA must, therefore, attempt to comply in good faith with both provisions. Consequently, VA must not only make an administrative determination with respect to creation of presumptions of service connection for particular diseases, but must also submit recommendations to Congress concerning the issue. In addition, the OLC advised that compliance with both provisions will require VA to contract with the NAS to address all study elements in either of the two provisions and to adhere to the earlier of any time-specific reporting requirements.
Following receipt of the opinion of the OLC, VA’s General Counsel conducted an intensive review of the provisions of each statute, consistent with the guiding principles set forth by the OLC, in order to insure proper implementation of both statutes by all concerned parties. As a result of this review, the General Counsel has advised VA’s program officials as to the measures needed to fulfill VA’s duties under the two laws.
I understand that you are particularly interested in the contract with the NAS, including its status, terms, conditions, and timelines. I will briefly summarize this information, and will be happy to provide a copy of the full contract to you.
Aware of the real concerns and fears of Gulf War veterans and their families about long-term health consequences of military service in the Gulf War, the Under Secretary for Health sent a letter to the NAS on October 31, 1997 requesting that NAS comprehensively review, evaluate, and summarize the available scientific and medical information regarding the association between exposures during the Gulf War and adverse health effects experienced by some Gulf War veterans. The National Academy of Sciences’ proposal was accepted and the contract was signed on June 24, 1998, which was four months prior to the enactment of Public Law 105-277.
The project will be carried out by the NAS’ Institute of Medicine’s (IOM) Board on Health Promotion and Disease Prevention. An NAS Committee will provide a comprehensive review, evaluation, and summary of available scientific/medical information regarding the association between exposure during the Gulf War and adverse health effects experienced by Gulf War veterans. This review will include an assessment of biologic plausibility that exposures, or synergistic effects of combinations of exposures, are associated with illnesses experienced by Gulf War veterans. The NAS will make recommendations for additional scientific studies to resolve areas of continued scientific uncertainty related to health consequences. The total estimated cost of this review is $1,250,000 over a 27-month period from June 1, 1998 through August 31, 2000. The initial-year funding was established at $500,000.
The project is being conducted in three phases. In the initial phase, the NAS is identifying health outcomes of interest and the selected exposures to be examined. Exposures may include but are not limited to depleted uranium, pesticides, insecticides, chemical and biological warfare agents, vaccines, pyridostigmine bromide, health stress, solvents, paints, fuels, smoke from oil-well fires, and sand. A review of the literature regarding some prototypic exposure-health effect associations is being conducted to develop methods to be used for analysis and syntheses of different types of research findings (for example, animal toxicology data, occupational exposure data, and epidemiology data). In conducting the reviews, the NAS committee established for this project is, for each medical condition considered, assessing the latency periods, if any, between exposures to the potential risk factors and manifestation of illnesses.
Scientific evidence concerning association of exposures and illness is being examined, taking into account the strength of scientific evidence and the appropriateness of the methods used to identify associations; whether the evidence indicates the levels of exposure of the studied populations were comparable to the exposures of Gulf War veterans; and whether there exists a plausible biological mechanism or other evidence of an association between exposures to the risk factor or factors and the medical condition. A report of the activities and findings of the Committee will be produced.
During phase two the remaining exposures will be subject to a similar review and analysis. Finally, VA will seek to enter into a contract with NAS for a series of updates of the literature and the associations, to be conducted every two or three years.
The overall process is governed by a committee of experts from a broad range of scientific endeavors. Dr. Harold Sox chairs the committee. Dr. Sox directs the Robert Wood Johnson Generalist Physician Initiative at Dartmouth. He currently serves as President of the American College of Physicians-American Society of Internal Medicine. The Institute of Medicine Board on Health Promotion and Disease Prevention is overseeing the project.
The committee plans to meet six times during the 27 months. The initial meeting was held on January 11-12, 1999. The second, February 16, 1999. The next meeting is scheduled for April 27-28. A report will be prepared and issued which describes the framework by which association is to be determined, criteria by which specific exposures and adverse health outcomes are to be considered for study, a list of exposures and outcomes to be considered in the first two phases, and language to be used to categorize the associations under study.
The report will include a literature review of the association between specific health effects and 3-6 exposures experienced during Gulf War deployment, and directions for future scientific research to resolve continued scientific uncertainty for the exposures assessed within the report.
The exposures covered in this first report will be chosen to reflect a variety of data sources and methodologic problems. For example, the review of associations which depend most heavily on biologic plausibility and animal toxicology data will differ from associations dependent upon occupational exposure in populations other than Gulf War veterans and from associations dependent on exposure data and epidemiologic data from Gulf War veterans.
Because this effort pre-dated the enactment of Public Law 105-277, it does not conform precisely to the legislative language. The study has been designed by the NAS to be of high scientific merit and to be completed in the shortest timeframes deemed feasible. Therefore, we feel that it fully meets the intent of Public Law 105-277 (and the similar Public Law 105-368). More importantly, this study will provide a thorough review of the scientific literature by an expert committee. Their conclusions are of utmost importance because they will form the basis for compensation decisions.
We are certain that the current contract sets out the minimum time required to provide a high quality, comprehensive literature review. This genuine effort responds to the concerns of Gulf War veterans and their families and the intent of Public Law 105-277.
The "Persian Gulf War Veterans Act of 1998" also asks VA to enter into an agreement with the NAS to review and identify empirically valid models of treatment for various chronic illness which employ successful treatment modalities for populations with similar symptoms. Under this review, the NAS would make recommendations for additional scientific studies and treatment trials. In 1998, VA contracted with the NAS to provide advice on the optimal methods to assess the health status of Gulf War veterans and the effectiveness of treatments being delivered by the Departments. The NAS will complete this project in June 1999. After the final report is completed, the committee will continue and expand its study to address the mandate of Public Law 105-277.
I understand that some observers have expressed concerns about delays in research and the negative impact on medical care and other benefits and services that Gulf War veterans have earned through their military service. Please be assured that research efforts and other important efforts on behalf of Gulf War veterans are continuing uninterrupted.
Large numbers of Gulf War veterans are receiving medical attention from VA. Over 230,000 Gulf War veterans have received healthcare services at VA facilities, and more than 74,000 Gulf War veterans have completed the VA Gulf War Registry Health Examination program. Gulf War veterans with difficult to diagnose illnesses are still being transferred to our four national Gulf War Referral Centers for intensive in-patient examinations and special consultations. Gulf War veterans with chronic undiagnosed illness, as well as those with diagnosed service-connected illnesses, are receiving disability compensation. VA has granted claims for service connection for more than 128,000 Gulf War theater veterans.
We are totally committed to providing the benefits and services to which these veterans are entitled.
Review of Previously Disallowed Disability Claims
Mr. Chairman, we were recently advised of the Committee’s interest in the status of a number of Gulf War veterans’ disability claims for which additional review was determined to be warranted.
On July 16, 1996, our Compensation and Pension Service mandated a review of all previously disallowed Gulf War disability claims. The purpose of the review was to assure that all necessary development had been completed, and to assure that all evidence had been properly considered in reaching the decision. At that time, 10,736 claims were developed for readjudication. The results of the readjudication are as follows: Service connection was granted in 2,802 claims. Compensation for undiagnosed conditions was granted in 1,348 claims. That figure includes previously denied undiagnosed conditions (1,044) and newly considered undiagnosed conditions (304). Diagnosed conditions were granted service connection in 1,454 claims. That figure includes previously denied undiagnosed conditions (597) and newly considered diagnosed conditions (857).
In 5,264 claims, there were no changes on review, but service connection had already been granted for another condition. In the remaining claims, service connection could not be granted for any condition, and denial of service connection was confirmed. There are four cases for which action has yet to be completed under this review.
That concludes my statement. My colleagues and I would be happy to answer any questions you may have.
U.S. Department of Veterans Affairs - 810 Vermont Avenue, NW - Washington, DC 20420
Reviewed/Updated Date: November 10, 2009