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June 11, 2013

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DrGrishka

Well, if one takes the view that an active duty soldier is always on duty, subject to be called at any time, and bound by various military rules 24/7 (unlike an employee who is usually not bound by company's policies once he punches out), it would then make sense that all actions that the soldier engages in are part of his employment. So that answers the basketball/ACL example, I think.

As to presumptions, I am not sure that those have to be squared with the Torts theory so much as with administrative ease. Especially since it is not an irrebuttable presumption. It also seems to me to be consistent with the multiple causes rule. And under that rule, it is generally the tortfeasor who has to exculpate himself rather than the tort victim having to prove that the disease is not attributable to an alternative cause.

James Ridgway

So is it true that administrative ease explains the spectrum of theories of tort recovery better than cost/benefit analysis or anything else? I'm just curious. I've never had the time to research the literature on Grand Unified Theories of Torts. I always assumed that tort theories were more normatively driven than determined by the practicalities of what can and cannot be judicially managed.

Brad

A theory of causality would be interesting, but I think this exchange shows that a more valuable contribution would be a thoery of presumptions. Too often the VA and commentators treat presumptions as codifications of the 50/50 rule. This is the basis for the "administrative ease" argument: in factual circumstances where the causality is likely to be 50% or higher, we'll expedite the analysis by automatically granting service connection. But this is not the "definition" of a presumption. There are other, and potentially more important, reasons for creating a presumption. Some of these were outlined in 69 FR 60,083. For example: unavailability of primary evidence and low quantity of secondary research. These justifications do not address probability, they address evidentiary problems. These examples show that presumptions are not merely short-hand for probability analysis.

As practitioners know, however, the VA tends to treat presumptions as short-hand for probability analysis. This means that the VA only adopts new presumptions when it can show that the 50/50 standard is exceeded. And it means that adjudicators tend to find service connection only when relevant presumptions are satisfied, as if any other circumstances must be less than 50/50. Both of these are errors, I believe, and we might remedy them with a better theory of presumptions.

James Ridgway

How disconnected from causation could a theory of presumptions really be? It seems to me that you quickly reach the point where administrative ease and other concerns run up against the political backlash caused when different groups of veterans perceived that they are being treated unequally. In addition, getting lay adjudicators to correctly administer the system gets very hard very quickly when the rules stop making intuitive sense.

I'm just throwing that out there. I would be very interested in seeing a theory of presumptions that looked more broadly than just causation. But I'm concerned about the practical problems that occur when you try to deploy a sophisticated, counter-intuitive theory through instructions to non-attorney agents deciding claims of unrepresented veterans.

Brad

I agree that it would have to be grounded in common sense. But there are common sense issues that lie within the scope of presumptions and outside the scope of probability theory. Evidentiary issues is a big one. It defies common sense (mine anyway) that we demand objective documented evidence of events that we know do not get documented: servicemembers simply do not document every blow to the head, for example, so why do we require this to establish mild traumatic brain injury?

As to practical problems, a theory of presumptions would not be applied directly by adjudicators. It would instead guide regulators to encourage them to create more appropriate presumptions (each of which would be relatively bright-line for adjudicators' purposes). This is what has happened with PTSD: several firm rules have been established the reflect the evidentiary realities of different circumstances. This should be the rule, not the exception.

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