-CITE-
38 USC Sec. 1154 01/19/04
-EXPCITE-
TITLE 38 - VETERANS' BENEFITS
PART II - GENERAL BENEFITS
CHAPTER 11 - COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH
SUBCHAPTER VI - GENERAL COMPENSATION PROVISIONS
-HEAD-
Sec. 1154. Consideration to be accorded time, place, and
circumstances of service
-STATUTE-
(a) The Secretary shall include in the regulations pertaining to
service-connection of disabilities (1) additional provisions in
effect requiring that in each case where a veteran is seeking
service-connection for any disability due consideration shall be
given to the places, types, and circumstances of such veteran's
service as shown by such veteran's service record, the official
history of each organization in which such veteran served, such
veteran's medical records, and all pertinent medical and lay
evidence, and (2) the provisions required by section 5 of the
Veterans' Dioxin and Radiation Exposure Compensation Standards Act
(Public Law 98-542; 98 Stat. 2727).
(b) In the case of any veteran who engaged in combat with the
enemy in active service with a military, naval, or air organization
of the United States during a period of war, campaign, or
expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have been
incurred in or aggravated by such service satisfactory lay or other
evidence of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that there is
no official record of such incurrence or aggravation in such
service, and, to that end, shall resolve every reasonable doubt in
favor of the veteran. Service-connection of such injury or disease
may be rebutted by clear and convincing evidence to the contrary.
The reasons for granting or denying service-connection in each case
shall be recorded in full.
-SOURCE-
(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1124, Sec. 354; Pub. L.
94-433, title IV, Sec. 404(20), Sept. 30, 1976, 90 Stat. 1379; Pub.
L. 98-542, Sec. 4, Oct. 24, 1984, 98 Stat. 2727; Pub. L. 102-54,
Sec. 14(b)(1), June 13, 1991, 105 Stat. 282; renumbered Sec. 1154
and amended Pub. L. 102-83, Secs. 4(b)(1), (2)(E), 5(a), Aug. 6,
1991, 105 Stat. 404-406.)
-REFTEXT-
REFERENCES IN TEXT
Section 5 of the Veterans' Dioxin and Radiation Exposure
Compensation Standards Act, referred to in subsec. (a), is set out
below.
-MISC1-
AMENDMENTS
1991 - Pub. L. 102-83, Sec. 5(a), renumbered section 354 of this
title as this section.
Pub. L. 102-54, Sec. 14(b)(1)(A), inserted a comma after "place"
in section catchline.
Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
"Secretary" for "Administrator".
Pub. L. 102-54, Sec. 14(b)(1)(B), inserted before period at end
"(Public Law 98-542; 98 Stat. 2727)".
Subsec. (b). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
"Secretary" for "Administrator".
1984 - Subsec. (a). Pub. L. 98-542 designated existing provisions
as cl. (1) and added cl. (2).
1976 - Subsec. (a). Pub. L. 94-433 substituted "such veteran's"
for "his" in three places and "such veteran" for "he".
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-433 effective Oct. 1, 1976, see section
406 of Pub. L. 94-433, set out as a note under section 1101 of this
title.
RADIATION DOSE RECONSTRUCTION PROGRAM OF DEPARTMENT OF DEFENSE
Pub. L. 108-183, title VI, Sec. 601, Dec. 16, 2003, 117 Stat.
2667, provided that:
"(a) Review of Mission, Procedures, and Administration. - (1) The
Secretary of Veterans Affairs and the Secretary of Defense shall
jointly conduct a review of the mission, procedures, and
administration of the Radiation Dose Reconstruction Program of the
Department of Defense.
"(2) In conducting the review under paragraph (1), the
Secretaries shall -
"(A) determine whether any additional actions are required to
ensure that the quality assurance and quality control mechanisms
of the Radiation Dose Reconstruction Program are adequate and
sufficient for purposes of the program; and
"(B) determine the actions that are required to ensure that the
mechanisms of the Radiation Dose Reconstruction Program for
communication and interaction with veterans are adequate and
sufficient for purposes of the program, including mechanisms to
permit veterans to review the assumptions utilized in their dose
reconstructions.
"(3) Not later than 90 days after the date of the enactment of
this Act [Dec. 16, 2003], the Secretaries shall jointly submit to
Congress a report on the review under paragraph (1). The report
shall set forth -
"(A) the results of the review;
"(B) a plan for any actions determined to be required under
paragraph (2); and
"(C) such other recommendations for the improvement of the
mission, procedures, and administration of the Radiation Dose
Reconstruction Program as the Secretaries jointly consider
appropriate.
"(b) On-Going Review and Oversight. - The Secretaries shall
jointly take appropriate actions to ensure the on-going independent
review and oversight of the Radiation Dose Reconstruction Program,
including the establishment of the advisory board required by
subsection (c).
"(c) Advisory Board. - (1) In taking actions under subsection
(b), the Secretaries shall jointly appoint an advisory board to
provide review and oversight of the Radiation Dose Reconstruction
Program.
"(2) The advisory board under paragraph (1) shall be composed of
the following:
"(A) At least one expert in historical dose reconstruction of
the type conducted under the Radiation Dose Reconstruction
Program.
"(B) At least one expert in radiation health matters.
"(C) At least one expert in risk communications matters.
"(D) A representative of the Department of Veterans Affairs.
"(E) A representative of the Defense Threat Reduction Agency.
"(F) At least three veterans, including at least one veteran
who is a member of an atomic veterans group.
"(3) The advisory board under paragraph (1) shall -
"(A) conduct periodic, random audits of dose reconstructions
under the Radiation Dose Reconstruction Program and of decisions
by the Department of Veterans Affairs on claims for service
connection of radiogenic diseases;
"(B) assist the Department of Veterans Affairs and the Defense
Threat Reduction Agency in communicating to veterans information
on the mission, procedures, and evidentiary requirements of the
Radiation Dose Reconstruction Program; and
"(C) carry out such other activities with respect to the review
and oversight of the Radiation Dose Reconstruction Program as the
Secretaries shall jointly specify.
"(4) The advisory board under paragraph (1) may make such
recommendations on modifications in the mission or procedures of
the Radiation Dose Reconstruction Program as the advisory board
considers appropriate as a result of the audits conducted under
paragraph (3)(A)."
REVIEW OF DOSE RECONSTRUCTION PROGRAM OF THE DEFENSE THREAT
REDUCTION AGENCY
Pub. L. 106-419, title III, Sec. 305, Nov. 1, 2000, 114 Stat.
1853, provided that:
"(a) Review by National Academy of Sciences. - Not later than 30
days after the date of the enactment of this Act [Nov. 1, 2000],
the Secretary of Defense shall enter into a contract with the
National Academy of Sciences to carry out periodic reviews of the
program of the Defense Threat Reduction Agency of the Department of
Defense known as the 'dose reconstruction program'.
"(b) Review Activities. - The periodic reviews of the dose
reconstruction program under the contract under subsection (a)
shall consist of the periodic selection of random samples of doses
reconstructed by the Defense Threat Reduction Agency in order to
determine -
"(1) whether or not the reconstruction of the sampled doses is
accurate;
"(2) whether or not the reconstructed dosage number is
accurately reported;
"(3) whether or not the assumptions made regarding radiation
exposure based upon the sampled doses are credible; and
"(4) whether or not the data from nuclear tests used by the
Defense Threat Reduction Agency as part of the reconstruction of
the sampled doses is accurate.
"(c) Duration of Review. - The periodic reviews under the
contract under subsection (a) shall occur over a period of 24
months.
"(d) Report. - (1) Not later than 60 days after the conclusion of
the period referred to in subsection (c), the National Academy of
Sciences shall submit to Congress a report on its activities under
the contract under this section.
"(2) The report shall include the following:
"(A) A detailed description of the activities of the National
Academy of Sciences under the contract.
"(B) Any recommendations that the National Academy of Sciences
considers appropriate regarding a permanent system of review of
the dose reconstruction program of the Defense Threat Reduction
Agency."
IONIZING RADIATION REGISTRY
Pub. L. 99-576, title II, Sec. 232, Oct. 28, 1986, 100 Stat.
3264, as amended by Pub. L. 102-83, Secs. 5(c)(2), 6(h), Aug. 6,
1991, 105 Stat. 406, 408, provided that:
"(a) Establishment of Registry. - The Secretary of Veterans
Affairs shall establish and maintain a special record to be known
as the 'Ionizing Radiation Registry' (hereinafter in this section
referred to as the 'Registry').
"(b) Content of Registry. - Except as provided in subsection (c),
the Registry shall include the following information:
"(1) A list containing the name of each veteran who was exposed
to ionizing radiation under the conditions described in section
1710(e)(1)(B) of title 38, United States Code, and who -
"(A) applies for hospital or nursing home care from the
Department of Veterans Affairs under chapter 17 of such title;
"(B) files a claim for compensation under chapter 11 of such
title on the basis of a disability which may be associated with
the exposure to ionizing radiation; or
"(C) dies and is survived by a spouse, child, or parent who
files a claim for dependency and indemnity compensation under
chapter 13 of such title on the basis of the exposure of such
veteran to ionizing radiation.
"(2) Medical data relating to each veteran listed in the
Registry, including -
"(A) the veteran's medical history, latest health status
recorded by the Department of Veterans Affairs, physical
examinations, and clinical findings; and
"(B) a statement describing birth defects, if any, in the
natural children of the veteran.
"(3) Data on claims for the compensation referred to in
paragraph (1), including decisions and determinations of the
Department of Veterans Affairs relating to such claims.
"(4) An estimate of the dose of radiation to which each veteran
listed in the Registry was exposed under the conditions described
in section 1710(e)(1)(B) of such title.
"(c) Veterans Submitting Claims Before Date of Enactment. - If in
the case of a veteran described in subsection (b)(1) the
application or claim referred to in such subsection was submitted
or filed before October 28, 1986, the Secretary shall include in
the Registry, to the extent feasible, such veteran's name and the
data and information described in subsection (b) relating to the
veteran.
"(d) Consolidation of Existing Information. - (1) For the purpose
of establishing and maintaining the Registry, the Secretary of
Veterans Affairs shall compile and consolidate -
"(A) relevant information maintained by the Veterans Benefits
Administration and the Veterans Health Administration of the
Department of Veterans Affairs;
"(B) relevant information maintained by the Defense Nuclear
Agency of the Department of Defense; and
"(C) any relevant information maintained by any other element
of the Department of Veterans Affairs or the Department of
Defense.
"(2) With respect to a veteran whose name is included in the
Registry and for whom the information in the Registry is not
complete, the Secretary of Veterans Affairs shall include
information described in paragraph (1) with respect to that veteran
(A) to the extent that such information is reasonably available in
records of the Department of Veterans Affairs or Department of
Defense, or (B) if such information is submitted by the veteran
after October 28, 1986.
"(e) Department of Defense Information. - The Secretary of
Defense shall furnish to the Secretary of Veterans Affairs such
information maintained by the Department of Defense as the
Secretary of Veterans Affairs considers necessary to establish and
maintain the Registry.
"(f) Definition. - For the purpose of this section, the term
'veteran' has the meaning given that term in section 101(2) of
title 38, United States Code, and includes a person who died in the
active military, naval, or air service.
"(g) Effective Date. - The Registry shall be established not
later than 180 days after the date of the enactment of this Act
[Oct. 28, 1986]."
VETERANS' DIOXIN AND RADIATION EXPOSURE COMPENSATION STANDARDS;
CONGRESSIONAL FINDINGS AND STATEMENT OF PURPOSE
Sections 1-3 of Pub. L. 98-542, as amended by Pub. L. 102-4, Sec.
10(a), (b), Feb. 6, 1991, 105 Stat. 19, provided that:
"SHORT TITLE
"Section 1. This Act [amending this section, enacting provisions
set out as notes under this section, and amending provisions set
out as notes under this section and section 1116 of this title] may
be cited as the 'Veterans' Dioxin and Radiation Exposure
Compensation Standards Act'.
"FINDINGS
"Sec. 2. The Congress makes the following findings:
"(1) Veterans who served in the Republic of Vietnam during the
Vietnam era and veterans who participated in atmospheric nuclear
tests or the American occupation of Hiroshima or Nagasaki, Japan,
are deeply concerned about possible long-term health effects of
exposure to herbicides containing dioxin or to ionizing
radiation.
"(2) There is scientific and medical uncertainty regarding such
long-term adverse health effects.
"(3) In section 102 of Public Law 97-22 [see Tables for
classification], the Congress responded to that uncertainty by
authorizing priority medical care at Veterans' Administration
[now Department of Veterans Affairs] facilities for any
disability of a veteran who may have been so exposed (even though
there is insufficient medical evidence linking such disability
with such exposure) unless the disability is found to have
resulted from a cause other than the exposure.
"(4) The Congress has further responded to that medical and
scientific uncertainty by requiring, in section 307 of Public Law
96-151 [set out as a note under section 1116 of this title] and
section 601 of Public Law 98-160 [set out below], the conduct of
thorough epidemiological studies of the health effects
experienced by veterans in connection with exposure both to
herbicides containing dioxin and (if not determined to be
scientifically infeasible) to radiation, and by requiring in
Public Law 97-414 [see Tables for classification], the
development of radioepidemiological tables setting forth the
probabilities of causation between various cancers and exposure
to radiation.
"(5) There is some evidence that most types of leukemia,
malignancies of the thyroid, female breast, lung, bone, liver,
and skin, and polycythemia vera are associated with exposure to
certain levels of ionizing radiation.
"(6) As of the date of the enactment of this Act [Oct. 24,
1984], there are sixty-six federally sponsored research projects
being conducted relating to herbicides containing dioxin, at a
cost to the Federal Government in excess of $130,000,000 and, as
of 1981, federally sponsored research projects relating to
ionizing radiation were costing the Federal Government more than
$115,000,000.
"(7) The initial results of one project - an epidemiological
study, conducted by the United States Air Force School of
Aerospace Medicine, of the health status of the 'Ranch Hand'
veterans who carried out the loading and aerial spraying of
herbicides containing dioxin in Vietnam and in the process came
into direct skin contact with such herbicides in their most
concentrated liquid form - were released on February 24, 1984,
and contained the conclusion 'that there is insufficient evidence
to support a cause and effect relationship between herbicide
exposure and adverse health in the Ranch Hand group at this
time'.
"(8) The 'film badges' which were originally issued to members
of the Armed Forces in connection with the atmospheric nuclear
test program have previously constituted a primary source of dose
information for veterans (and survivors of veterans) filing
claims for Veterans' Administration [now Department of Veterans
Affairs] disability compensation or dependency and indemnity
compensation in connection with exposure to radiation.
"(9) These film badges often provide an incomplete measure of
radiation exposure, since they were not capable of recording
inhaled, ingested, or neutron doses (although the Defense Nuclear
Agency currently has the capability to reconstruct individual
estimates of such doses), were not issued to most of the
participants in nuclear tests, often provided questionable
readings because they were shielded during the detonation, and
were worn for only limited periods during and after each nuclear
detonation.
"(10) Standards governing the reporting of dose estimates in
connection with radiation-related claims for Veterans'
Administration [now Department of Veterans Affairs] disability
compensation vary among the several branches of the Armed Forces,
and no uniform minimum standards exist.
"(11) The Veterans' Administration [now Department of Veterans
Affairs] has not promulgated permanent regulations setting forth
specific guidelines, standards, and criteria for the adjudication
of claims for Veterans' Administration disability compensation
based on exposure to herbicides containing dioxin or to ionizing
radiation.
"(12) Such claims (especially those involving health effects
with long latency periods) present adjudicatory issues which are
significantly different from issues generally presented in claims
based upon the usual types of injuries incurred in military
service.
"(13) It has always been the policy of the Veterans'
Administration [now Department of Veterans Affairs] and is the
policy of the United States, with respect to individual claims
for service connection of diseases and disabilities, that when,
after consideration of all evidence and material of record, there
is an approximate balance of positive and negative evidence
regarding the merits of an issue material to the determination of
a claim, the benefit of the doubt in resolving each such issue
shall be given to the claimant.
"PURPOSE
"Sec. 3. The purpose of this Act is to ensure that Veterans'
Administration [now Department of Veterans Affairs] disability
compensation is provided to veterans who were exposed to ionizing
radiation in connection with atmospheric nuclear tests or in
connection with the American occupation of Hiroshima or Nagasaki,
Japan, for all disabilities arising after that service that are
connected, based on sound scientific and medical evidence, to such
service (and that Veterans' Administration dependency and indemnity
compensation is provided to survivors of those veterans for all
deaths resulting from such disabilities)."
[Amendment by Pub. L. 102-4 to sections 2 and 3 of Pub. L.
98-542, set out above, effective at the end of the six-month period
beginning on Feb. 6, 1991, except as otherwise provided, see
section 10(e) of Pub. L. 102-4, set out below under sections 5 to 7
of Pub. L. 98-542.]
REQUIREMENT FOR AND CONTENT OF REGULATIONS; ADVISORY COMMITTEE ON
ENVIRONMENTAL STANDARDS; NUCLEAR RADIATION MATTERS INVOLVING OTHER
AGENCIES
Sections 5-7 of Pub. L. 98-542, as amended by Pub. L. 100-321,
Sec. 2(c), May 20, 1988, 102 Stat. 486; Pub. L. 102-4, Sec. 10(c),
(d), Feb. 6, 1991, 105 Stat. 19, 20; Pub. L. 102-83, Sec. 5(c)(2),
Aug. 6, 1991, 105 Stat. 406, provided that:
"REQUIREMENT FOR AND CONTENT OF REGULATIONS
"Sec. 5. (a) In carrying out the responsibilities of the
Administrator of Veterans' Affairs [now Secretary of Veterans
Affairs] under section 1154(a)(2) [formerly 354(a)(2)] of title 38,
United States Code, and in order to promote consistency in claims
processing and decisions, the Administrator shall prescribe
regulations to -
"(1) establish guidelines and (where appropriate) standards and
criteria for the resolution of claims for benefits under laws
administered by the Veterans' Administration [now Department of
Veterans Affairs] where the criteria for eligibility for a
benefit include a requirement that a death or disability be
service connected and the claim of service connection is based on
a veteran's exposure during service in connection with such
veteran's participation in atmospheric nuclear tests or with the
American occupation of Hiroshima or Nagasaki, Japan, prior to
July 1, 1946, to ionizing radiation from the detonation of a
nuclear device; and
"(2) ensure that, with respect to those claims, the policy of
the United States described in section 2(13) [set out above] is
carried out.
"(b)(1)(A) The guidelines required to be established in
regulations prescribed under this section shall include guidelines
governing the evaluation of the findings of scientific studies
relating to the possible increased risk of adverse health effects
of exposure to ionizing radiation. Those guidelines shall require
that, in the evaluation of those studies, the Administrator [now
Secretary] shall take into account whether the results are
statistically significant, are capable of replication, and
withstand peer review.
"(B) The evaluations described in subparagraph (A) shall be made
by the Administrator of Veterans' Affairs [now Secretary of
Veterans Affairs] after receiving the advice of the Scientific
Council of the Veterans' Advisory Committee on Environmental
Hazards (established under section 6). Those evaluations shall be
published in the notice section of the Federal Register.
"(C) The standards and criteria required to be established in
regulations prescribed under this section shall include provisions
governing the use in the adjudication of individual claims of the
Administrator's [now Secretary's] evaluations made under
subparagraph (B).
"(2)(A)(i) In prescribing regulations under this section, the
Administrator [now Secretary] (after receiving the advice of the
Advisory Committee and of the Scientific Council of the Veterans'
Advisory Committee on Environmental Hazards regarding the diseases
described in subparagraph (B)) shall make determinations, based on
sound medical and scientific evidence, with respect to each disease
described in subparagraph (B) as to whether service connection
shall, subject to division (ii) of this subparagraph, be granted in
the adjudication of individual cases. In making determinations
regarding such diseases, the Administrator shall give due regard to
the need to maintain the policy of the United States with respect
to the resolution of contested issues as set forth in section 2(13)
[set out above]. The Administrator shall set forth in such
regulations such determinations, with any specification (relating
to exposure or other relevant matter) of limitations on the
circumstances under which service connection shall be granted, and
shall implement such determinations in accordance with such
regulations.
"(ii) If the Administrator [now Secretary] makes a determination,
pursuant to this subparagraph, that service connection shall be
granted in the case of a disease described in subparagraph (B), the
Administrator shall specify in such regulations that, in the
adjudication of individual cases, service connection shall not be
granted where there is sufficient affirmative evidence to the
contrary or evidence to establish that an intercurrent injury or
disease which is a recognized cause of the described disease has
been suffered between the date of separation from service and the
onset of such disease or that the disability is due to the
veteran's own willful misconduct.
"(iii) With regard to each disease described in subparagraph (B),
the Administrator [now Secretary] shall include in the regulations
prescribed under this section provisions specifying the factors to
be considered in adjudicating issues relating to whether or not
service connection should be granted in individual cases and the
circumstances governing the granting of service connection for such
disease.
"(B) The diseases referred to in subparagraph (A) are those
specified in section 2(5) [set out above] and any other disease
with respect to which the Administrator [now Secretary] finds
(after receiving and considering the advice of the Scientific
Council established under section 6(d)(2)) that there is sound
scientific or medical evidence indicating a connection to exposure
to ionizing radiation, in the case of a veteran who was exposed to
ionizing radiation in connection with such veteran's participation
in an atmospheric nuclear test or with the American occupation of
Hiroshima or Nagasaki, Japan, before July 1, 1946.
"(3) The regulations prescribed under this section shall include
-
"(A) specification of the maximum period of time after exposure
to such ionizing radiation for the development of those diseases;
and
"(B) a requirement that a claimant filing a claim based upon a
veteran's exposure to ionizing radiation from the detonation of a
nuclear device may not be required to produce evidence
substantiating the veteran's exposure during active military,
naval, or air service if the information in the veteran's service
records and other records of the Department of Defense is not
inconsistent with the claim that the veteran was present where
and when the claimed exposure occurred.
"(c)(1) The Administrator of Veterans' Affairs [now Secretary of
Veterans Affairs] shall develop the regulations required by this
section (and any amendment to those regulations) through a public
review and comment process in accordance with the provisions of
section 553 of title 5, United States Code. That process may
include consideration by the Administrator of the recommendations
of the Veterans' Advisory Committee on Environmental Hazards and
the Scientific Council thereof (established under section 6) with
respect to the proposed regulations, and that process shall include
consideration by the Administrator of the recommendations of the
Committee and the Council with respect to the final regulations and
proposed and final amendments to such regulations. The period for
public review and comment shall be completed not later than ninety
days after the proposed regulations or proposed amendments are
published in the Federal Register.
"(2)(A) Not later than one hundred and eighty days after the date
of the enactment of this Act [Oct. 24, 1984], the Administrator
[now Secretary] shall develop and publish in the Federal Register a
proposed version of the regulations required to be prescribed by
this section.
"(B) Not later than three hundred days after the date of the
enactment of this Act [Oct. 24, 1984], the Administrator [now
Secretary] shall publish in the Federal Register the final
regulations (together with explanations of the bases for the
guidelines, standards, and criteria contained therein) required to
be prescribed by this section.
"ADVISORY COMMITTEE ON ENVIRONMENTAL HAZARDS
"Sec. 6. (a) The advisory committee referred to in subsections
(b) and (c) of section 5, to be known as the Veterans' Advisory
Committee on Environmental Hazards (hereinafter in this section
referred to as the 'Committee') shall consist of nine members
appointed by the Administrator of Veterans' Affairs [now Secretary
of Veterans Affairs] after requesting and considering
recommendations from veteran organizations, including -
"(1) six individuals (of whom none may be members of the Armed
Forces on active duty or employees of the Veterans'
Administration [now Department of Veterans Affairs] or the
Department of Defense and not more than three may be employees of
other Federal departments or agencies), appointed, after
requesting and considering the recommendations of the heads of
Federal entities with particular expertise in biomedical and
environmental science, including -
"(A) three individuals who are recognized medical or
scientific authorities in fields pertinent to understanding the
health effects of exposure to ionizing radiation; and
"(B) three individuals who are recognized medical or
scientific authorities in fields, such as epidemiology and
other scientific disciplines, pertinent to determining and
assessing the health effects of exposure to ionizing radiation
in exposed populations; and
"(2) three individuals from the general public, including at
least one disabled veteran, having a demonstrated interest in and
experience relating to veterans' concerns regarding exposure to
ionizing radiation.
"(b) The Committee shall include, as ex officio, nonvoting
members, the Chief Medical Director and the Chief Benefits Director
of the Veterans' Administration [now Under Secretary for Health and
Under Secretary for Benefits of the Department of Veterans
Affairs], or their designees.
"(c) The Committee shall submit to the Administrator [now
Secretary] any recommendations it considers appropriate for
administrative or legislative action.
"(d)(1) The six members of the Committee described in subsection
(a)(1) shall, in addition to serving as members of the Committee,
constitute a Scientific Council of the Committee (hereinafter in
this section referred to as the 'Council').
"(2) The Council shall have responsibility for evaluating
scientific studies relating to possible adverse health effects of
exposure to ionizing radiation.
"(3) The Council shall make findings and evaluations regarding
pertinent scientific studies and shall submit to the Committee, the
Administrator [now Secretary], and the Committees on Veterans'
Affairs of the Senate and House of Representatives directly
periodic reports on such findings and evaluations.
"(e) The Administrator [now Secretary] shall designate one of the
members to chair the Committee and another member to chair the
Council.
"(f) The Administrator [now Secretary] shall determine the terms
of service and pay and allowances of members of the Committee,
except that a term of service of any member may not exceed three
years. The Administrator may reappoint any member for additional
terms of service.
"(g) The Administrator [now Secretary] shall provide
administrative support services and fiscal support for the
Committee.
"NUCLEAR RADIATION MATTERS INVOLVING OTHER AGENCIES
"Sec. 7. (a) In connection with the duties of the Director of the
Defense Nuclear Agency, as Department of Defense Executive Agent
for the Nuclear Test Personnel Review Program, relating to the
preparation of radiation dose estimates with regard to claims for
Veterans' Administration [now Department of Veterans Affairs]
disability compensation and dependency and indemnity compensation
under chapters 11 and 13, respectively, of title 38, United States
Code -
"(1) the Secretary of Defense shall prescribe guidelines (and
any amendment to those guidelines) through a public review and
comment process in accordance with the provisions of section 553
of title 5, United States Code -
"(A) specifying the minimum standards governing the
preparation of radiation dose estimates in connection with
claims for such compensation,
"(B) making such standards uniformly applicable to the
several branches of the Armed Forces, and
"(C) requiring that each such estimate furnished to the
Veterans' Administration [now Department of Veterans Affairs]
and to any veteran or survivor include information regarding
all material aspects of the radiation environment to which the
veteran was exposed and which form the basis of the claim,
including inhaled, ingested, and neutron doses; and
"(2) the Secretary of Health and Human Services, through the
Director of the National Institutes of Health, shall -
"(A) conduct a review of the reliability and accuracy of
scientific and technical devices and techniques (such as 'whole
body counters') which may be useful in determining previous
radiation exposure;
"(B) submit to the Administrator of Veterans' Affairs [now
Secretary of Veterans Affairs] and the Committees on Veterans'
Affairs of the House of Representatives and the Senate, not
later than July 1, 1985, a report regarding the results of such
review, including information concerning the availability of
such devices and techniques, the categories of exposed
individuals as to whom use of such devices and techniques may
be appropriate, and the reliability and accuracy of dose
estimates which may be derived from such devices and
techniques; and
"(C) enter into an interagency agreement with the
Administrator of Veterans' Affairs [now Secretary of Veterans
Affairs] for the purpose of assisting the Administrator in
identifying agencies or other entities capable of furnishing
services involving the use of such devices and techniques.
"(b) The Administrator of Veterans' Affairs [now Secretary of
Veterans Affairs], in resolving material differences between a
radiation dose estimate, from a credible source, submitted by a
veteran or survivor and a radiation dose estimate prepared and
transmitted by the Director of the Defense Nuclear Agency, shall
provide for the preparation of a radiation dose estimate by an
independent expert, who shall be selected by the Director of the
National Institutes of Health and who shall not be affiliated with
the Defense Nuclear Agency, and the Administrator shall provide for
the consideration of such independent estimate in connection with
the adjudication of the claim for Veterans' Administration [now
Department of Veterans Affairs] compensation."
[Pub. L. 102-4, Sec. 10(e), Feb. 6, 1991, 105 Stat. 20, as
amended by Pub. L. 102-86, title V, Sec. 503(b)(2), Aug. 14, 1991,
105 Stat. 425, provided that:
["(1) Except as provided in paragraph (2), the amendments made by
this section [amending sections 2 and 3 of Pub. L. 98-542, set out
above, and sections 5 and 6 of Pub. L. 98-542, set out above] shall
take effect at the end of the two-month period beginning on the
date of the enactment of the Veterans' Benefits Programs
Improvement Act of 1991 [Aug. 14, 1991].
["(2)(A) If the Secretary of Veterans Affairs determines before
the end of such period that the Environmental Hazards Advisory
Committee established under section 6 of Public Law 98-542 (38
U.S.C. 354 note) [set out above] has completed its responsibilities
under that section and the directives of the Secretary pursuant to
the Nehmer case court order, the amendments made by this section
shall take effect as of the date of such determination.
["(B) For purposes of this paragraph, the term 'Nehmer case court
order' means the court order dated May 2, 1989, in the case of
Nehmer v. Department of Veterans Affairs, in the United States
district court for the northern district of California (civil
action docket number C-86-6160 TEH).
["(3) If the Secretary makes a determination under paragraph (2),
the Secretary shall promptly publish in the Federal Register a
notice that such determination has been made and that such
amendments have thereby taken effect as of the date of such
determination."]
IDENTIFICATION OF ACTIVITIES INVOLVING EXPOSURE TO IONIZING
RADIATION BEFORE JANUARY 1, 1970
Section 10 of Pub. L. 98-542, as added by Pub. L. 102-578, Sec.
3, Oct. 30, 1992, 106 Stat. 4774, provided that:
"(a) In General. - (1) In order to determine whether activities
(other than the tests or occupation activities referred to in
section 5(a)(1)(B) [probably means section 5(a)(1), set out above])
resulted in the exposure of veterans to ionizing radiation during
the service of such veterans that occurred before January 1, 1970,
and whether adverse health effects have been observed or may have
resulted from such exposure in a significant number of such
veterans, the Advisory Committee established under section 6 [set
out above] shall -
"(A) review all available scientific studies and other relevant
information relating to the exposure of such veterans to ionizing
radiation during such service;
"(B) identify any activity during which significant numbers of
veterans received exposure; and
"(C) on the basis of such review, submit to the Secretary of
Veterans Affairs a report containing the recommendation of the
Advisory Committee on the feasibility and appropriateness for the
purpose of the determination under this paragraph of any
additional investigation with respect to any activity of such
veterans during such service.
"(2) Upon the request of the Advisory Committee, the Secretary of
Veterans Affairs (after seeking such assistance from the Secretary
of Defense as is necessary and appropriate) shall make available to
the Advisory Committee records and other information relating to
the service referred to in paragraph (1) that may assist the
Advisory Committee in carrying out the review and recommendation
referred to in that paragraph.
"(3) The Advisory Committee shall submit to the Secretary of
Veterans Affairs the report referred to in paragraph (1)(C) not
later than August 1, 1993.
"(b) Investigation Plan and Report. - (1) Upon receipt of the
report referred to in subparagraph (C) of subsection (a)(1), the
Secretary of Veterans Affairs shall -
"(A) identify which of the activities referred to in that
subparagraph, if any, that the Secretary intends to investigate
more fully for the purpose of making the determination referred
to in that subsection; and
"(B) prepare a plan (including a deadline for the plan) to
carry out that investigation and make that determination.
"(2) Not later than December 1, 1993, the Secretary shall submit
to the Committees on Veterans' Affairs of the Senate and House of
Representatives a report containing -
"(A) a list of the activities identified by the Secretary
pursuant to paragraph (1)(A) and the basis of such
identification;
"(B) a copy of the report of the Advisory Committee referred to
in subsection (a)(1)(C); and
"(C) the plan referred to in paragraph (1)(B)."
INTERIM BENEFITS FOR DISABILITY OR DEATH IN CERTAIN CASES
Section 9 of Pub. L. 98-542 provided for payment of interim
monthly disability benefits to veterans who had served in Vietnam
during Vietnam era and who had diseases chloracne and porphyria
cutanea tarda which manifested themselves within one year after
date of veteran's most recent departure from Vietnam, but with no
such interim benefits to be paid after Sept. 30, 1986.
RADIATION EXPOSURE STUDY AND GUIDE
Pub. L. 98-160, title VI, Nov. 21, 1983, 97 Stat. 1006, as
amended by Pub. L. 98-542, Sec. 8(b), Oct. 24, 1984, 98 Stat. 2732,
provided for the conduct of an epidemiological study of long-term
adverse health effects of exposure to ionizing radiation from
detonation of nuclear devices in connection with tests of such
devices or in connection with occupation of Hiroshima and Nagasaki,
Japan, between Sept. 11, 1945, and July 1, 1946, and provided for
reports to Congress on studies made together with recommendations
as to necessary legislation.
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"Buk" Frank
