S. 75 Text - Introduced in Senate - 115th Congress (2017-2018)

To provide for the reconsideration of claims for disability compensation for veterans who were the subjects of experiments by the Department of Defense during World War II that were conducted to assess the effects of mustard gas or lewisite on people, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Arla Harrell Act”.

SEC. 2. Findings.

Congress makes the following findings:

(1) During World War II, the Government carried out a program of testing mustard gas and lewisite exposure on members of the Armed Forces. This program was classified and participating members were threatened with dishonorable discharges and imprisonment if they revealed their participation.

(2) On July 12, 1973, a fire at the National Personnel Records Center destroyed more than 16,000,000 official military personnel files. The records affected more than 80 percent of members and former members of the Army who were discharged between November 1, 1912, and January 1, 1960. As a result, due to no fault of their own, veterans who were subjected to testing under the program are unable to rely on a full and complete record of their service to produce proof that they were subjected to such testing.

(3) The Armed Forces did not fully acknowledge its role in the program until the last of the experiments was declassified in 1975, 30 years after testing under the program was completed and 2 years after the fire destroyed military records at the National Personnel Records Center.

(4) The oath of secrecy was not effectively lifted until 1991, 46 years after the testing was completed, further hampering the ability of veterans to provide proof that they were subjected to the testing.

(5) The Department of Veterans Affairs is relying on incomplete information to adjudicate claims, which often provides conflicting data regarding veterans’ mustard gas or lewisite exposure due to recordkeeping failures outside of the veterans’ control.

(6) The Department has rejected approximately 90 percent of claims for benefits under laws administered by the Secretary of Veterans Affairs relating to mustard gas or lewisite exposure.

(7) Veterans who participated in the mustard gas or lewisite testing were not afforded the same opportunity to provide evidence of their exposure for disability compensation and ought to be afforded unique consideration.

SEC. 3. Reconsideration of claims for disability compensation for veterans who were the subjects of mustard gas or lewisite experiments during World War II.

(a) Reconsideration of claims for disability compensation in connection with exposure to mustard gas or lewisite.—

(1) IN GENERAL.—The Secretary of Veterans Affairs, in consultation with the Secretary of Defense, shall reconsider all claims for compensation described in paragraph (2) and make a new determination regarding each such claim.

(2) CLAIMS FOR COMPENSATION DESCRIBED.—Claims for compensation described in this paragraph are claims for compensation under chapter 11 of title 38, United States Code, that the Secretary of Veterans Affairs determines are in connection with exposure to mustard gas or lewisite during active military, naval, or air service during World War II and that were denied before the date of the enactment of this Act.

(3) PRESUMPTION OF EXPOSURE.—In carrying out paragraph (1), if the Secretary of Veterans Affairs or the Secretary of Defense makes a determination regarding whether a veteran experienced full-body exposure to mustard gas or lewisite, such Secretary—

(A) shall presume that the veteran experienced full-body exposure to mustard gas or lewisite, as the case may be, unless proven otherwise; and

(B) may not use information contained in the DoD and VA Chemical Biological Warfare Database or any list of known testing sites for mustard gas or lewisite maintained by the Department of Veterans Affairs or the Department of Defense as the sole reason for determining that the veteran did not experience full-body exposure to mustard gas or lewisite.

(4) REPORT.—Not later than 90 days after the date of the enactment of this Act, and not less frequently than once every 90 days thereafter, the Secretary of Veterans Affairs shall submit to the appropriate committees of Congress a report specifying any claims reconsidered under paragraph (1) that were denied during the 90-day period preceding the submittal of the report, including the rationale for each such denial.

(b) Development of policy.—Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs and the Secretary of Defense shall jointly establish a policy for processing future claims for compensation under chapter 11 of title 38, United States Code, that the Secretary of Veterans Affairs determines are in connection with exposure to mustard gas or lewisite during active military, naval, or air service during World War II.

(c) Investigation and report by Secretary of Defense.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall—

(1) for purposes of determining whether a site should be added to the list of the Department of Defense of sites where mustard gas or lewisite testing occurred, investigate and assess sites where—

(A) the Army Corps of Engineers has uncovered evidence of mustard gas or lewisite testing; or

(B) more than two veterans have submitted claims for compensation under chapter 11 of title 38, United States Code, in connection with exposure to mustard gas or lewisite at such site and such claims were denied; and

(2) submit to the appropriate committees of Congress a report on experiments conducted by the Department of Defense during World War II to assess the effects of mustard gas and lewisite on people, which shall include—

(A) a list of each location where such an experiment occurred, including locations investigated and assessed under paragraph (1);

(B) the dates of each such experiment; and

(d) Investigation and report by Secretary of Veterans Affairs.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall—

(1) investigate and assess—

(A) the actions taken by the Secretary to reach out to individuals who had been exposed to mustard gas or lewisite in the experiments described in subsection (c)(2)(A); and

(B) the claims for disability compensation under laws administered by the Secretary that were filed with the Secretary and the percentage of such claims that were denied by the Secretary; and

(2) submit to the appropriate committees of Congress—

(A) a report on the findings of the Secretary with respect to the investigations and assessments carried out under paragraph (1); and

(B) a comprehensive list of each location where an experiment described in subsection (c)(2)(A) was conducted.

(e) Definitions.—In this section:

(1) The terms “active military, naval, or air service”, “veteran”, and “World War II” have the meanings given such terms in section 101 of title 38, United States Code.

(2) The term “appropriate committees of Congress” means—

(A) the Committee on Veterans’ Affairs, the Committee on Armed Services, and the Special Committee on Aging of the Senate; and

(B) the Committee on Veterans’ Affairs and the Committee on Armed Services of the House of Representatives.

(3) The term “full-body exposure”, with respect to mustard gas or lewisite, has the meaning given that term by the Secretary of Defense.