Congressional Record Statement of Senator Daniel K. Akaka

Mr. President, I am today introducing the proposed Clarification of Characteristics of Combat Service Act of 2009. This legislation is designed to address concerns which have been noted during the Committee's oversight visits to VA regional offices. From the review of claims folders as part of ongoing oversight, Committee staff has noted that VA adjudicators often fail to factor in the existence of common occurrences when considering claims from combat veterans because there is no formal evidence on the matters in question in the claimant's official military records.

When common hazards exist in particular areas where our armed forces have or are serving, a means must be established to determine whether a particular veteran's claim of exposure to such hazard or matter is consistent with the circumstances of service in that area, even without evidence in individual official records. This proposed bill would establish a mechanism by requiring VA to promulgate regulations that would include standards that VA adjudicators would use for evaluating the consistency between lay evidence and claimed matters, such as exposure to factors common to servicemembers serving in particular combat areas.

This proposed bill is intended to result in recognition by VA that, where there is evidence of common events, a veteran's testimony, if consistent with other evidence, would be accepted without requiring specific, formal evidence of individual exposure to the event. By law, lay testimony is currently recognized in claims where a veteran served in a military unit which participated in combat. While this bill is not intended to provide a presumption of service-connection for any particular disability, it should improve the accurate adjudication of claims in those cases where a veteran served in an area where certain events or exposures are widespread.

For example, there is widespread agreement that those who have served in Iraq since the start of the conflict there have been exposed to improvised explosive devices--IEDs. However, based on Committee oversight, it appears that it often happens that, when a veteran applies for compensation for disabilities related to IED exposure, such as tinnitus, the claim may be denied if the veteran's service medical record does not show treatment for tinnitus in service or otherwise documents exposure to an IED. Since it would be highly unusual to find documentation of treatment where a veteran in a combat zone has consulted with medical personnel for a relatively minor condition, such as exposure to an IED which did not cause acute observable injury, the formal records would not be of use to the claimant. The regulations required by the legislation I am introducing would likely include provision for conceding exposure to an IED in claims brought by veterans who served in Iraq.

Another example of the problems that the legislation is designed to address involves claims from Korean war veterans, many of whom were exposed to extreme cold, but whose records may not have documentation of treatment for a cold injury or information on the actual temperature to which they were exposed. I would anticipate that the regulations required by this legislation would provide for VA to concede exposure to subfreezing temperatures in such cases if consistent with the location where the veteran served.

I expect that this measure should speed the processing by claims, by not requiring each veteran to individually establish by official government records, which often do not document individual participation, exposure to one or more events which are well established as circumstances involving the place and type of the veteran's service.

In closing, I note that this legislation has been developed in consultation with VA and with a variety of individuals and groups interested in VA claims but I do not view it as a final approach. I look forward to working with my colleagues on the Committee and in the Senate, as well as with those with an interest in this issue, to improve this bill so that combat veterans of the current conflicts and of earlier conflicts who allege exposure to well-recognized events will not be burdened by requirements of acquiring official evidence of individual participation in such events. This should help veterans receive the benefits they deserve in a timely manner. I urge support for this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

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April 28, 2009