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Full text of "Judicial review of veterans' claims : hearings before the Subcommittee on Oversight and Investigations of the Committee on Veterans' Affairs, House of Representatives, Ninety-eighth Congress, first session, July 21 and July 26, 1983"

JUDICIAL REVIEW OF VETERANS' CUIMS 



HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON 
OVEESIGHT AND INVESTIGATIONS 

OF THE 

COMMITTEE ON VETERANS' AFFAIRS 
HOUSE OF REPRESENTATr\^ES 

NINETY-EIGHTH CONGRESS 

FIRST SESSION 



JULY 21 AND JULY 26, 1983 



Printed for the use of the Committee on Veterans' Affairs 

Serial No. 98-25 




JUDICIAL REVIEW OF VETERANS' CUIMS 



HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON 
OVERSIGHT AND INVESTIGATIONS 

OF THE 

COMMITTEE ON VETERANS' APFAIES 
HOUSE OF REPRESENTATIVES 

NINETY-EIGHTH CONGRESS 

FIRST SESSION 



JULY 21 AND JULY 26, 1983 



Printed for the use of the Committee on Veterans' Affairs 

Serial No. 98-25 




U.S. GOVERNMENT PRINTING OFFICE 
25-550 WASHINGTON : 1983 



COMMITTEE ON VETERANS' AFFAIRS 
G. V. (SONNY) MONTGOMERY, Mississippi, Chairman 



DON EDWARDS, California 

BOB EDGAR, Pennsylvania 

SAM B. HALL, Jr., Texas 

DOUGLAS APPLEGATE, Ohio 

MARVIN LEATH, Texas 

RICHARD C. SHELBY, Alabama 

DAN MICA, Florida 

THOMAS A. DASCHLE, South Dakota 

WAYNE DOWDY, Mississippi 

MATTHEW G. MARTINEZ, California 

LANE EVANS, Illinois 

MARCY KAPTUR, Ohio 

FRANK HARRISON, Pennsylvania 

ALAN B. MOLLOHAN, West Virginia 

TIMOTHY J. PENNY, Minnesota 

HARLEY O. STAGGERS, Jr., West Virginia 

J. ROY ROWLAND, Georgia 

JIM SLATTERY, Kansas 

JOHN BRYANT, Texas 

BILL RICHARDSON, New Mexico 



JOHN PAUL HAMMERSCHMIDT, Arkansas 

CHALMERS P. WYLIE, Ohio 

ELWOOD HILLIS, Indiana 

GERALD B. H. SOLOMON, New York 

BOB McEWEN, Ohio 

CHRISTOPHER, H. SMITH, New Jersey 

DENNY SMITH, Oregon 

PHIL GRAMM, Texas 

DAN BURTON, Indiana 

DON SUNDQUIST, Tennessee 

MICHAEL BILIRAKIS, Florida 

NANCY LEE JOHNSON, Connecticut 



1 



Mack Fleming, Chief Counsel and Staff Director 



Subcommittee on Oversight and Investigations 
G. V. (SONNY) MONTGOMERY, Mississippi, Chairman 



DON EDWARDS, California 
SAM B. HALL, Jr., Texas 
TIMOTHY J. PENNY, Minnesota 
HARLEY O. STACJGERS, Jr., West Virginia 
J. ROY ROWLAND, Georgia 
LANE EVANS, Illinois 



ELWOOD HILLIS, Indiana 
GERALD B. H. SOLOMON, New York 
DAN BURTON, Indiana 
DON SUNDQUIST, Tennessee 
NANCY LEE JOHNSON, C>)nnecticut 



(II) 



CONTENTS 



July 21, 1983 



Page 

Judicial Review of Veterans' Claims 1 

Statements of Committee Members 

Chairman G. V. "Sonny" Montgomery 1 

Prepared statement of Chairman Montgomery 89 

Hon. Elwood Hillis 1 

Hon. Don Edwards 2 

Witnesses 

Cranston, Senator Alan, ranking minority member. Senate Committee on 

Veterans' Affairs 3 

Prepared statement of Senator Alan Cranston 124 

Egan, Paul S., deputy director, National Legislative Commission, and Robert 
E. Lyngh, director. National Veterans Affairs and Rehabilitation Commis- 
sion, the American Legion 23 

Prepared statement of the American Legion 161 

Heilman, John F., national legislative director, AMVETS 22 

Prepared statement of Mr. Heilman 154 

Kuhl, Carolyn B., Deputy Assistant Attorney General, Civil Division, Depart- 
ment of Justice 10 

Prepared statement of Ms. Kuhl 138 

LaFalce, Hon. John, a Representative in Congress from the State of New 

York 6 

Prepared statement of Congressman LaFalce 130 

Mayo, Philip R., special assistant. National Legislative Service, Veterans of 

Foreign Wars of the United States 24 

Prepared statement of Mr. Mayo 173 

Passamaneck, Lt. Col. David J., national legislative director, AMVETS 20 

Prepared statement of Colonel Passamaneck 149 

Material Submitted for the Record 

Bills: 

H.R. 1959— To amend title 38, United States Code, to establish certain 
procedures for the adjudication of claims for benefits under laws ad- 
ministered by the Veterans' Administration; to apply the provisions of 
section 553 of title 5, United States Code, to rulemaking procedures of 
the Veterans' Administration; to provide for judicial review of certain 
final decisions of the Administrator of Veterans' Affairs; to provide for 
the payment of reasonable fees to attorneys for rendering legal repre- 
sentation to individuals claiming benefits under laws administered by 

the Veterans' Administration; and for other purposes 90 

Section-by-section analysis of H.R. 1959 117 

Statement: 

Hart, Hon. Gary, U.S. Senator from the State of Colorado 128 

(III) 



IV 

July 26, 1983 p^^ 

Judicial Review of Veterans' Claims 37 

Statement of Committee Members 

Chairman G. V. "Sonny" Montgomery 37 

Prepared statement of Chairman Montgomery 177 

Hon. Elwood Hillis 37 

Witnesses 

Statements: 

Davis, Frederick, dean. University of Dayton School of Law, appearing on 

behalf of the American Bar Association 62 

Prepared statement of Mr. Davis 212 

Cushman, Philip E., executive director. Veterans Due Process, Inc 76 

Prepared statement of Mr. Cushman 251 

Murphy, John P., general counsel. Veterans' Administration, accompa- 
nied by Kenneth E. Eaton, chairman. Board of Veterans Appeals; Doro- 
thy L. Starbuck, chief benefits director; and Edward Lukey, deputy 

assistant general counsel 38 

Prepared statement of Mr. Murphy 178 

Smith, Loren A., Chairman, Administrative Conference of the United 

States, accompanied by Richard K. Berg, general counsel 58 

Prepared statement of Mr. Smith 202 

Terzano, John F., legislative director, Vietnam Veterans of America 73 

Prepared statement of Mr. Terzano 228 

Weil, Frank E. G., national secretary, American Veterans Committee 80 

Prepared statement of Mr. Weil 262 

Material Submitted for the Record 

Statements: 

DeBoer, Rebecca, Oregon State representative, district 50, Jackson 

County, Oreg 266 

Gold, Shirley, Oregon State representative, district 14, Multnomah 

County, Oreg 270 

Hunter, Hon. Elmo B., U.S. District Judge for the Western District of 

Missouri and chairman, Committee on Court Administration, Judicial 

Conference of the United States 392 

Jewish War Veterans of the United States of America 319 

National Association of Atomic Veterans 320 

Roberts, Lonnie J., Oregon State representative, district 21, Multnomah 

County, Oreg 274 

Valimont, Robert W., Department of Pennsylvania, the American Legion . 330 
Written committee questions and their response: 

American Legion 280 

American Veterans Committee 28b 

Disabled American Veterans 290 

Veterans' Administration 294 

Veterans Due Process 303 

Veterans of Foreign Wars 307 

Vietnam Veterans of America 312 

University of Dayton School of Law 317 

Cost estimate: Administrative Conference of the United States Courts 403 



JUDICIAL REVIEW OF VETERANS' CLAIMS 



THURSDAY, JULY 21, 1983 

House of Representatives, 
Subcommittee on Oversight and Investigations, 

Committee on Veterans' Affairs, 

Washington, D.C. 
The subcommittee met, pursuant to notice, at 9 a.m., in room 
334, Cannon House Office Building, Hon. G. V. (Sonny) Montgom- 
ery (chairman of the subcommittee) presiding. 

Present: Representatives Montgomery, Edwards, Penny, Stag- 
gers, Rowland, Evans, Hillis, Solomon, and Johnson. 

Also present: Representatives Edgar and Kaptur, members of the 
full Committee on Veterans' Affairs. 

OPENING STATEMENT OF CHAIRMAN MONTGOMERY 

Mr. Montgomery. Good morning. The subcommittee will come to 
order and I thank my colleagues for being here and being here on 
time. We're proud of the fact that on this committee and our sub- 
committees we do try to start our hearings and meetings on time. As 
you know, we are here today on judicial review of veterans' claims 
for veterans' benefits. 

Under section 211 of the title 38 of U.S. code, it states that: 

The decision of the Administrator on any question of law or fact under any law 
administered by the Veterans' Administration providing benefits for veterans and 
their dependents or survivors shall be final and conclusive and no other official or 
any court in the United States shall have the power or jurisdiction to review any of 
these decisions. 

We know that there are arguments which support retention of 
the current review process and also there are arguments which call 
for judicial review. This issue is far from simple. I would like to ask 
unanimous consent that my full statement be put in the record.^ 

The Chair would like to recognize Mr. Hillis, the ranking minority 
member on this subcommittee. 

OPENING STATEMENT OF HON. ELWOOD HILLIS, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA 

Mr. Hillis. Thank you, Mr. Chairman. The hearing this morning 
will focus on an issue that is of considerable concern to the com- 
mittee. For years the subject of judicial review of veterans' claims 
has been before us and it's a subject of considerable debate ranging 
from suggested simplistic reasons for creating court review to 
strong opposition to any change whatsoever in the status quo. 



' The statement of Chairman Montgomery appears on p. 89. 

(1) 



The idea of a right to a day in court seems to be supreme in the 
eyes of the principal advocates of judicial review and the idea of 
clogging the Federal courts, increased costs, creating a new bu- 
reaucracy, establishing adversary roles between the Government 
and the veteran in the adjudication of veterans' claims is the argu- 
ment made against it. 

This morning we will undoubtedly hear more details of both 
these opposing sides. Our witnesses are individuals who are well- 
versed on this matter and I look forward to hearing from all of 
them. 

Mr. Montgomery. Thank you, Mr. Hillis. 

I would like to thank Mr. Solomon of New York for being here 
this morning and my close personal friend and the ranking major- 
ity member on this side of the aisle, Mr. Don Edwards, who re- 
quested me, as chairman, to have these hearings. I would like to 
recognize Don Edwards at this time and also ask Don if he would 
introduce our distinguished first witness this morning. 

STATEMENT OF HON. DON EDWARDS, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. Edwards. Thank you very much, Mr. Chairman. I do thank 
you for scheduling this important hearing. As you know, I have 
been, for a long time, a supporter of judicial review. I believe that 
the veterans of this country are entitled to the same rights enjoyed 
by our other citizens under the Constitution and these rights in- 
clude the due process of law. Under current law our veterans are 
denied that basic due process right. They lack any right to appeal 
to the courts for any decision made within the Veterans' Adminis- 
tration; and so, on March 8 of this year I again introduced legisla- 
tion to correct this inequity and I would like to enter for the record 
of this hearing the language of that bill, H.R. 1959 ^ and the sec- 
tion-by-section analysis of the bill.^ 

Mr. Montgomery. Without objection, so ordered. 

Mr. Edwards. Thank you, Mr. Chairman. Legislation very simi- 
lar to H.R. 1959 passed the Senate on June 15, 1983, as it has in 
the 96th and 97th Congresses. I am absolutely delighted that my 
Senator, my personal Senator from California, the most distin- 
guished Senator from the Golden State, has been able to join us 
here. He is not only my distinguished Senator, but he's a friend of 
many, many years. 

Senator Cranston, Mr. Chairman, as you know, in the Senate has 
been in the forefront of the struggle to obtain for veterans this fun- 
damental right of citizenry. 

Alan, I welcome you with great pleasure and I speak for all of 
my colleagues and we are all looking forward to your testimony 
this morning. 



• See p. 90. 
^Seep. 117. 



STATEMENT OF SENATOR ALAN CRANSTON, RANKING MINORITY 
MEMBER OF THE SENATE COMMITTEE ON VETERANS' AFFAIRS 

Senator Cranston. Thank you, Don. I appreciate very, very 
much that generous introduction and your own good work and 
your friendship over so many years. 

Mr. Chairman, I thank you very much for this opportunity and I 
thank the members of the committee for their presence. 

As a strong, long-time supporter of legislation to provide for judi- 
cial review of VA decisions denying claims for veterans, I am de- 
lighted to appear before this subcommittee this morning and I con- 
gratulate you, Mr. Chairman, for scheduling this hearing and I 
thank you for this opportunity to testify. 

My statement will be rather brief. I have a longer statement that 
I ask appear in the hearing record. 

Mr. Montgomery. Without objection. ^ 

Senator Cranston. Thank you. 

I want to note the strong interest in this issue of my good friend 
and colleague from California, Don Edwards, who has introduced 
legislation pending before your committee. 

As you all know, the Senate Veterans' Affairs Committee report- 
ed S. 636 on May 18 and it was passed by the Senate on June 15. I 
urge your full and careful consideration of this legislation which is 
the product of refinements by our committee over four Congresses. 

In my view, finding fault with the current system is not a neces- 
sary step in making the case for a judicial review. Rather, I believe 
that appropriate first question is whether there is any continuing 
reason — putting to one side the question of whether there ever was 
a valid reason — for denying veterans the same right of access to 
court review of VA benefit decisions that is available in the case of 
virtually every other Federal benefit. 

When the issue is posed as, "Why should veterans be denied 
rights available to others in their dealings with the Federal Gov- 
ernment," I have never heard a satisfactory answer justifying 
maintaining the current law preclusion. 

I realize that concerns have been expressed that judicial review 
would have an undue impact on the agency's current claims adjudi- 
cation processes. I have also heard concerns that providing for judi- 
cial review could make the VA claims process more adversarial 
and that it would create unnecessary delay and would cost veter- 
ans money in the form of attorney's fees. 

Although I fully recognize the genuineness of these concerns, I 
do not believe that any of them are well-founded. 

It is possible that providing for judicial review and doing nothing 
else could have an untoward effect on the current VA system. 
However, the legislation that has been developed in the Senate con- 
tains numerous provisions that have been designed expressly to 
avoid that result. These provisions in S. 636 would insure that, to 
the extent feasible, the VA's desirable adjudication practices and 
procedures would be protected by providing a statutory basis for 
them. 



'The prepared statement of Senator Alan Cranston appears on p. 124. 



With reference to the concerns about judicial review causing 
undue delay or about it somehow making the veteran and the 
agency adversaries, it's important to remember that under S. 636 
judicial review would be available only after a veteran's claim had 
been turned down by the regional office and on appeal by the 
Board of Veterans' Appeals. 

At that point it is difficult to see how providing for judicial 
review would create any delay. The VA proceedings would have 
run their normal course. A process no longer going anywhere 
really cannot be delayed. Moreover, a veteran whose claim has 
been finally denied upon appeal would not become an adversary of 
the VA by virtue of having court review available. 

Regarding attorney's fees, it's almost incomprehensible to me — in 
fact, it is incomprehensible— that the $10 limit has survived to this 
time. Whatever behavior characterized the legal profession follow- 
ing the Civil War, it is no longer credible to insist that attorneys 
would prey on innocent veterans. I also am unable to accept the 
view that veterans, as a class, are so unable to protect themselves 
that there needs to be a barrier erected in law between them and 
attorneys. 

I also note that S. 636 would not lift the $10 limit until after the 
veteran has received an initial BVA decision. 

With respect to the impact on the Federal judiciary, I do not un- 
derstand why veterans and others with claims beifbre the VA 
should continue to be discriminated against and denied important 
rights because treating them fairly might enlarge the responsibility 
of the court system. If the Federal courts are overburdened, the 
Congress should address that problem on an equitable basis by ex- 
panding available resources or limiting access to court on some 
basis that applies to all citizens. 

It is blatantly unfair and it is arbitrary to deal with perceived 
problems in the court by singling out veterans for exclusion with 
respect to benefits earned by service in the military. 

In terms of positive reasons for judicial review legislation, I be- 
lieve the general reasons outlined in my 1980 testimony before this 
subcommittee — insuring fairness to individual claimants and pro- 
viding the basis for a review of questionable VA actions restricting 
benefits — continue to be valid. 

I am particularly concerned about the need for veterans to be 
able to challenge general agency decisions and practices restricting, 
withholding, or withdrawing VA benefits. There have been numer- 
ous examples of such actions in the recent past which I describe on 
page 3 of my full statement. 

Although our two committees do our utmost to oversee the activ- 
ities of the VA, our limited resources do not allow us to review 
fully and act to resolve satisfactorily all of the issues arising in 
such a large and complex agency. We are legislative bodies. We 
cannot effectively be the courts of last resort. 

Rather, the remedy should be one of outside review by the inde- 
pendent branch of Government established in our constitutional 
framework with the special responsibility of determining whether 
governmental action is lawful and fundamentally fair. This would 
mean that the VA would have its processes subjected to appropri- 
ate scrutiny, and where the agency s actions were upheld, it would 



be vindicated. Likewise, to the extent that the agency's actions 
were held unlawful or fundamentally unfair, remedial steps could 
be taken to insure that the agency was meeting its responsibilities 
fully. I 

The VA recently testified to our committee that there was no 
need for legislation in this area because of a general trend in court 
decisions permitting veterans to challenge VA regulations. I do not 
agree with this analysis for two important reasons. First, the court 
decisions on this point have varied from one court of appeals to an- 
other. A clear legislative resolution, as in S. 636 would eliminate 
any confusion and any difference in result. 

Second, despite the VA's acknowledgement that some courts of 
appeals clearly have allowed veterans to bring actions challenging 
the VA regulations on other than constitutional grounds, the U.S. 
Government continues to raise the title 38 statutory bar to judicial 
review in VA cases which do not, and I emphasize "not," involve 
individual claims for benefits. 

Again, a clearly statutory basis for judicial review would end this 
disingenuous practice and the confusion that it engenders. 

One additional point: I believe it is vital that whatever scope of 
review is chosen must provide some basis for court review of ques- 
tions of fact. S. 636 includes a very narrow scope of review of factu- 
al issues, providing such a very narrow base for factual review by a 
court not only reaffirms the BVA's role as the expert final arbiter 
of such questions, but also would afford an opportunity for correc- 
tion of truly egregious decisions on questions of fact. 

Although I believe such decisions are rare, I do not believe that 
total preclusion of review of facts would be appropriate or produc- 
tive. 

Again, Sonny, please accept my thanks for the opportunity to 
appear before you on this very important issue. I look forward to 
continuing to work with you and all of the members of the commit- 
tee on this and on other matters. 

Mr. Chairman, I am scheduled to appear at another committee 
on the Senate side at 9:30 and then attend a Veterans' Affairs 
Committee markup at 10 a.m. I regret that because of that I will be 
unable to stay here. Should any members of the subcommittee 
have any questions on my statement or any aspect of S. 636, I 
would be pleased to respond in writing. 

Mr. Montgomery. Thank you very much, Alan. Let me say that 
I have always thought of you in the Senate as "Mr. Veteran" and I 
have certainly enjoyed working with you over the years when you 
were chairman of the full Committee on Veterans' Affairs and 
since you have been the ranking minority member over there. 

I also want to thank you — as we all know, you are running for 
the highest office in the land — that you would take the time to 
come here and testify before this subcommittee on an issue that 
you feel so strongly about. I would like to welcome Jon Steinberg, a 
member of your staff who has been most helpful to us over the 
years working on legislative matters. 

If any member would like to make a brief comment and then we 
will let you go, Senator. 

Any other comments? 



Mr. Edwards. Thank you, Mr. Chairman. I would just like to tell 
Senator Cranston that I have read his full statement and it cer- 
tainly answers any questions that I think anybody will have. It's 
really a splendid statement. 

Senator Cranston. I have given you an overwhelming case for 
affirmative action and I thank you very, very much and I appreci- 
ate your very generous and thoughtful words. 

Thank you all very much. 

Mr. Montgomery. Thank you. Senator. 

John, why don't you come to the witness stand. Senator Gary 
Hart asked to be heard, but he's not able to get here this morning. 
Without objection, his statement will be put in this record.^ 

We are very glad to have our good friend John LaFalce who is a 
very able Representative from the 32d District of New York and 
John, you may proceed. Your full statement will be put in the record, 
without objection, and we are very glad to have you with us this 
morning. 

STATEMENT OF HON. JOHN LaFALCE, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF NEW YORK 

Mr. LaFalce. Thank you very much, Mr. Chairman, for inviting 
me to testify. I am honored to appear before this subcommittee. I 
think before I testify though I must disclaim some of the rumors 
that have been evident in the past few days or so. Despite the fact 
that Senator Cranston has testified and that Senator Hart was 
scheduled to testify and I am scheduled to testify, I am not a candi- 
date for the U.S. Presidency. I just wanted you to know that. 

Mr. Montgomery. Well, let the record show that. 

Mr. LaFalce. I have made Mr. Solomon's day. He was awfully 
worried there for a while. 

Mr. Chairman, every American who believes that he or she has 
been unfairly judged by a court of law or by a Federal administra- 
tive agency is entitled to judicial review of the court order or ad- 
ministrative decision, every American except veterans dealing with 
the Veterans' Administration. 

Veterans, Americans who have fought and served to protect and 
defend the Constitution, are denied that basic constitutional right 
of due process when dealing with the Veterans' Administration. 

I introduced a bill during the previous Congress, H.R. 1331, to 
correct this glaring inequity and I have reintroduced it again 
during this Congress, H.R. 3300. In each instance, not only for 
myself, but also on behalf of the Vietnam-Era Veterans in Congress 
Caucus, and I am here testifying in their stead today. 

I would like to especially recognize the efforts of our colleague 
from California, Don Edwards, a member of this subcommittee, 
who introduced very similar legislation, H.R. 1959, to provide for 
such judicial review. I welcome his leadership on this issue. 

Our bills are designed to redress a grievous wrong that has been 
perpetrated on veterans for the past 50 years. Veterans who be- 
lieve that the VA has wrongfully or illegally denied them the dis- 
ability compensation which they earned, and to which they are en- 



' The statement of Senator Hart appears on p. 128. 



titled by law, are denied the right to appeal their cases to a fair 
and impartial court of law. 

When individuals are angered by a court decision, Mr. Chairman, 
or an administrative order, we often hear them give the retort, "I 
am going to fight this all the way to the Supreme Court." 

Now we know that the Supreme Court hears very few cases 
every year. The probability of it hearing any given case is remote, 
but the ability to appeal to a higher authority, in this cage, the 
highest court in the land, is a fundamental right enjoyed by all 
Americans. It carries with it not only a procedural safeguard 
against the abuse of judicial and administrative power, but also a 
S)mibolic value that is fundamental to the definition of our democ- 
racy. 

Veterans who feel that they have been unjustly denied compen- 
sation benefits, however, enjoy no such safeguard. They enjoy no 
such symbolic reward. For the veteran there is no right to appeal 
VA determinations "all the way to the Supreme Court." Indeed, 
there is no right to appeal VA decisions to any court. 

Veterans are also effectively denied the right to hire an attorney 
to represent them in their cases before the VA's compensation bu- 
reaucracy. Present law makes it a crime for an attorney to charge 
a veteran more than $10 for total services rendered in the veter- 
an's case. I would like to ask the members of this subcommittee 
who are lawyers and who have practiced law before being elected 
to Congress, "How many cases they handled for $10?" I would like 
to, but I don't have to. I think we know the answer. The cost of 
preparing such a claim would far exceed $10, frightening away all 
but the most altruistic amongst us. 

Veterans are also denied the protection of the Administrative 
Procedures Act. This law, enacted in 1946, was designed to protect 
the rights of Americans from being violated by agencies of the Fed- 
eral Government. As the Government has grown, the need for 
these protections has grown. Every Member of this body plays an 
ombudsman role for his constituents. We look after social security 
checks that are not delivered. We help our constituents and their 
families in foreign countries with immigration matters. We track 
down refund checks from the IRS. And, we make sure medicare 
benefits are promptly paid. 

But most of all it is our duty to make sure that our constituents 
are afforded every available safeguard when dealing with the Fed- 
eral bureaucracy. In this regard, Mr. Chairman, we have failed our 
veterans who are, by law, denied these basic protections. 

I am here today to suggest to this subcommittee that it is time to 
change our ways. It is time to bring our veterans under the broad 
umbrella of constitutional and statutory protections that shield 
every other American from the arbitrary and capricious decisions 
of the Federal bureaucracy. 

The House has been remiss in this regard. On several occasions 
our colleagues in the Senate have passed veterans' judicial review 
legislation and we have failed to follow their lead. 

Most recently, the Senate on June 15 passed Senator Hart's judi- 
cial review bill, S. 636, as a substitute for a House-passed bill, H.R. 
2936, that would expand the size of the VA's Board of Veterans' 
Appeals. We now have an opportunity to accept the Senate-passed 



8 

measure or to consider bills that have been introduced in the 
House. 

Before outlining the approach that I would take in H.R. 3300 let 
me say that if the Veterans' Affairs Committee were to accept the 
Senate-passed language in conference, I would be delighted to sup- 
port that. 

My bill and the bill introduced by Representative Edwards are 
worthy substitutes, but in this instance, the need to act far 
outweighs any pride of authorship. Nonetheless, I would suggest, 
that H.R. 3300 does contain several provisions that should be in- 
cluded in veterans' judicial review legislation, including provisions 
to codify, for VA adjudication purposes, the burden of proof and 
reasonable doubt standard currently provided for by VA regula- 
tion; establish that if an approximate balance of positive and nega- 
tive exists regarding the merits of a claim, the VA is to resolve 
such doubt in favor of the claimant; increase the size of the Board 
of Veterans' Appeals from 50 to 65; require that the Board provide 
notice to a claimant that an opportunity for a rehearing before a 
decision may be based on new evidence; remove the current re- 
quirement that new material that will allow the Board to reopen a 
previously denied claim be in the form of official reports; and es- 
tablish new procedural rules for adjudication regarding admissibil- 
ity of evidence, procedural rights of claimants, and the right of a 
claimant to obtain and examine a copy of the hearing record. 

All of those are important provisions that should be included. 
But there are also provisions of H.R. 3300 that I think must be in- 
cluded in any legislation. 

First, the VA s rulemaking procedures must be included under 
the provisions of the Administrative Procedures Act. Second, allow- 
able attorney's fees must be reasonable so that veterans can be 
fully represented by legal counsel before the VA. I don't wish to 
downgrade the quality or the value of the service performed by vet- 
erans' organizations in providing technical assistance to veterans. 
It's great. The free service is invaluable in stepping the veteran 
through the VA's bureaucratic maze, but it's not legal counsel. If 
we are to give veterans access to the courts, I believe we must in- 
crease the $10 limitation on legal fees. H.R. 3300 would raise the 
limit to $500 and allow for additional fees in extraordinary cases. 

Finally, and of course, the very heart of the matter, is providing 
for judicial review of VA decisions in the Federal court system. It 
doesn't have to be unlimited nor unbridled. Judicial review of a 
final decision should be sought within 180 days of the Veterans Ap- 
peals Board mailing of the notice of its decision. The bill would also 
provide that the court may decide questions of law and interpret 
constitutional and regulatory provisions but that questions of fact 
will not be subject to any de novo trial. These are reasonable limi- 
tations. 

They are also consistent with the rights and privileges enjoyed 
by all other Americans when appealing administrative decisions to 
the courts. 

Mr. Chairman, I would like to close my testimony by noting that 
advocates of judicial review of veterans' claims decisions do not 
view the VA as an adversary. We are cognizant of the VA's at- 
tempts to provide a nonconfrontational forum to resolve disputes. 



We are also cognizant of the VA's pronounced policy of bending 
over backward to meet legitimate claims. But anyone who lends an 
ear to veterans, who believe that they have been wrongly judged by 
the VA, knows that even the VA makes mistakes. Veterans must 
be afforded the opportunity, the right, to have their grievances 
aired in a court of law. We have taken this right away from those 
who fought and served to protect the Constitution of the United 
States and we have suffered this injustice for far too long. 

I hope that this morning's hearings will provide the impetus that 
is needed to extend the constitutional protection of due process of 
law to America's veterans. If we do not fully restore to those who 
served, how can we expect, how can we ask others to serve to pro- 
tect and defend the Constitution? 

It seems to me that there is a mutual bargain and it's time for 
the U.S. Congress to fulfill our part of that bargain. I hope that 
this subcommittee and its parent committee that you chair will 
give us that opportunity. 

I thank you very much. 

[The prepared statement of Congressman LaFalce appears on p. 
130.] 

Mr. Montgomery. Thank you very much, John. 

Mr. LaFalce. Mr. Chairman. 

Mr. Montgomery. Yes. 

Mr. LaFalce. I hate to make the same reservation that Senator 
Cranston did, but I am scheduled to give a speech in Baltimore at 
10 o'clock. With your permission, I would like to answer any ques- 
tions in writing. 

Mr. Montgomery. We don't really have a lot of problems with 
that. We have a lot of witnesses and we'll have some votes on the 
floor. Thank you very much. If any member would like to make a 
quick comment. 

Mr. Edwards. Thank you, Mr. Chairman. The only problem is I 
hope Mr. LaFalce has a helicopter or something. 

Mr. LaFalce. We are going to be a little late, but they are on 
notice. 

Mr. Edwards. That was really a fine statement and we appreci- 
ate it. 

Mr. Solomon. Would the chairman yield? 

Mr. Montgomery. Yes. 

Mr. Solomon. I would just like to pose a question: Is it a political 
speech, because if it is we will keep you here for a little while, 
John. 

Mr. LaFalce. I have never given a political speech in my life, 
Jerry. [Laughter.] 

Mr. Solomon. May I just say one word on behalf of John 
LaFalce. You know, we are of the opposite political persuasion and 
we disagree on a lot of things at times. I served with John in the 
State legislature and in the Congress here, and I feel compelled to 
laud him because of his long-standing commitment to veterans. 
John, we appreciate your testimony this morning. 

Mr. LaFalce. Thanks very much. 

Mr. Montgomery. Thank you. 

Our next witness will be the Honorable Carolyn Kuhl, Deputy 
Assistant Attorney General, Civil Division, Department of Justice. 



10 

We would like to welcome you and your full statement will be 
entered in the record. If you could summarize your statement, it 
would certainly help the committee. 

STATEMENT OF CAROLYN B. KUHL, DEPUTY ASSISTANT ATTOR- 
NEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE 

Ms. KuHL. Good morning, Mr. Chairman. 

Mr. Montgomery. Good morning. 

Ms. KuHL. I would be glad to summarize my statement and I ap- 
preciate very much the opportunity to appear here before the sub- 
committee this morning to present the views of the Justice Depart- 
ment on proposals to create a right of judicial review for veterans' 
benefits determinations. 

Especially when dealing with the administrative adjudicatory 
process, I think there is much truth in the old addage that if the 
system isn't broken, don't fix it. It has been noted in prior years 
and I don't think that it has been refuted here this morning that 
there really is no proof of fundamental unfairness in the present 
system. In the 96th Congress which considered a bill to supply judi- 
cial review in this area, a committee report stated that the decision 
to consider legislation was not based on the belief that the current 
system, resulting in a final unappealable decision being made by 
the Board of Veterans' Appeals, results in widespread unjustices. 
To the contrary, the committee report stated, "There is no evidence 
that most claimants are not satisfied with the resolution of their 
claim for VA benefits." 

I would add to this that to the extent there are cases of individu- 
al dissatisfaction with the VA process or with the result of that 
process, litigants in the court system are also often dissatisfied 
with the individual result of that process. 

We would suggest, therefore, that there has not been a showing 
of sufficient problems created by the present system to require 
adding additional layers of review. If there are specific problems 
with certain kinds of decisions made by the Veterans' Administra- 
tion, the better course would be to deal directly with those prob- 
lems by legislation, not to seek to solve them indirectly by passing 
responsibility to the courts. 

Second, I would like to note that trying to, "fix," the present 
system by adding a superstructure of judicial review ^yill cause 
problems for an overburdened judiciary and we believe it will in- 
evitably introduce an element of unfairness into the process of ad- 
judicating veterans' benefit claims. 

One of the purposes of precluding judicial review has been to 
insure uniformity in the adjudication of complex technical issues. If 
judicial review is instituted, uniformity will be lost. It is inevitable 
that the many district courts and the 12 circuit courts of appeals 
will reach different conclusions on the technical legal or factual 
and medical issues. Resolution of these inconsistencies breeds liti- 
gation to the expense of claimants, the VA, the Justice Depart- 
ment, and the judiciary. 

One of the chief objectives of a benefit review system and a hall- 
mark of fairness is uniformity of result. Judicial review would take 
the system further away from that objective. In the social security 



11 

disability benefits area, inconsistencies created by the judicial 
review process have, in turn, created high reversal rates at each 
layer of review, both within the administrative system and within 
the court system. A high reversal rate then becomes its own reason 
to litigate through many layers. Thus, the system also has an ele- 
ment of unpredictability. 

In addition, it seems inevitable that the nonadversary character 
of the present benefit adjudication system will be lost, at least to 
some extent. As claimants' lawyers are introduced into the process, 
not only at the court level, but also, no doubt, in the administrative 
process, the Veterans' Administration's present role of assisting 
the claimant in the process is bound to change. 

As for the problems of an overloaded judiciary, the Chief Justice, 
among others, has repeated again and again, and increasingly in 
recent months, that the courts have taken on increasingly crowded 
calendars and that thereby the delivery of justice has become 
slower and the quality of the decisionmaking process has declined. 
It is only realistic to expect that veterans' benefits claims cases will 
not take precedence on a court's calendar in terms of the resources 
expended. This is especially so because the legal issues will be un- 
familiar to the courts and the records will be fact-bound. Many 
social security benefits claims are dealt with, in the main, by mag- 
istrates in the district court system. 

I would like to add one final note, Mr. Chairman. We have in- 
cluded in our testimony an estimate prepared in 1978 of the likely 
cost of judicial review in terms of the Justice Department's re- 
sources. The Justice Department's Justice Management Division is 
updating that cost estimate and if the chairman would consent to 
keeping the record open, we would like to supplement the record 
with these updated cost estimates when they are available, hopeful- 
ly in the near future. 

Mr. Montgomery. Without objection.^ 

Ms. KuHL. Thank you, Mr. Chairman. At this time I would be 
happy to answer any questions that any of you have. 

The prepared statement of Ms. Kuhl appears on p. 138.] 

Mr. Montgomery. Thank you, Ms. Kuhl, for your testimony and 
for your brevity and for coming right to the main issues of judicial 
review. 

Let me just say, without objection, the Chair will recognize mem- 
bers who would like to ask questions and will not go down the list 
this morning, in trying to get all the witnesses, if we can. So 
anyone would like to ask Ms. Kuhl a question or make some com- 
ments, the Chair will recognize that individual. 

Mr. Hillis. 

Mr. Hillis. Thank you, Mr. Chairman. I have a couple of ques- 
tions. I think that there are many questions that could be asked in 
this whole area, but let me begin by asking, do you see judicial 
review, if it were to be enacted by Congress in this area, as placing 
the Federal Government and the veteran claimant in an adversary 
position? 

Ms. Kuhl. Yes, I certainly do. That is inevitable in the court 
system and we believe that in introducing that adversary relation- 

'See p. 146. 



12 

ship at the court level, it inevitably is going to affect the way all 
sides in the litigation approach the administrative process as well. 

Mr. HiLLis. Well, in time, would we not see then the development 
of precedents, in other words, decisions in a claim almost identical 
to other claims then would be binding in judicial circuits and in 
some instances across the country? In other words, we would have 
a whole new field, would we not, and all of the problems that some- 
times result in conflicts between jurisdictions and circuits and that 
sort of thing? 

Ms. KuHL. Well, it would be a very long process creating that 
body of law. The social security system, I think, is a good example 
of that. Issues of law, sometimes closely coupled with issues of fact, 
are being continuously litigated in that system and there are 
almost an infinite variety of questions that can arise. It takes 
many years to litigate even one issue of law on which there is a 
conflict in the circuits to a resolution because you will go through 
the district court process to the court of appeals maybe a couple of 
years later until a conflicting position results in another circuit. 
And the Supreme Court simply is not constituted to be able to take 
a sufficient number of cases every year to resolve these conflicts. 
Therefore, it is a very long and tortured process of creating that 
body of law even though it might exist theoretically. 

It is my understanding that the VA has had good success in de- 
veloping uniformity in its own body of law, uniformly applicable 
within the administrative system presently. 

Mr. HiLLis. One final question. It's been indicated that about 74 
percent of the cases considered by the Board of Veterans' Appeals 
are denied and that would mean about 26 percent are allowed. If 
these figures are anywhere near accurate, how do you view them? 
Are they comparable to court decisions of aggrieved persons in, 
say, social security cases? 

Ms. KuHL. I really do not have a good basis on which to judge in 
comparison to social security cases. I would be glad to check with 
the Social Security Administration and see what percentage of 
their cases are ultimately denied when looking at the process as a 
whole. 

Mr. HiLLis. It might be helpful information for the record if you 
could do that. 

Ms. KuHL. We will try to get that information and submit it to 
the committee. ^ 

Mr. Montgomery. Don Edwards. 

Mr. Edwards. Thank you, Mr. Chairman. I appreciate the testi- 
mony of Ms. Kuhl. You testified that there is no proof that this leg- 
islation is needed and that most claimants are taken care of. What 
about the others? Don't you think that the others deserve some 
consideration, especially when we see that in social security — 
where there is judicial review — in 25 percent, or something like 
that, of the cases that go to judicial review, the court finds that the 
agency, the bureaucracy, was wrong or denied the appropriate 
remedy? 

Ms. Kuhl. There's not a guarantee of justice, that is, of the right 
result in each individual case in the judicial system either. I am 

'See p. 146. 



13 

certain that in the administrative system one could point to a mis- 
take that has been made. It is no less true in the judicial system. 
Mankind is not perfect; judges are not necessarily more perfect 
than administrators in a good system. 

In the social security system the high reversal rate exists at 
every stage of the process. The administrative law judges reverse 
60 percent of the determinations initially made and that high re- 
versal rate continues. Half of the cases that reach the district court 
are reversed and remanded to the Social Security Administration 
in that system. In our view, that is a product of a system in which 
there is not a consistent body of law being adequately developed. 
Because of the distribution of the developing legal issues across the 
country in the many circuits, there is inconsistency and uncertain- 
ty in that system. 

Mr. Edwards. Well, I don't really think that you answered the 
question as to what we are going to do with the people who are 
denied a further remedy in the system that we have now. If it's 25 
percent in the civil service appeals where there is a reversal, why 
wouldn't it be about the same percentage in the VA system? As I 
said, don't those people count? 

Ms. KuHL. Well, I am not certain that you can draw the infer- 
ence that there would be the same reversal rate in the veterans' 
benefits area, and, as I say, the courts make mistakes as well. 
Sometimes there is an opportunity for Congress to enact a private 
relief bill. Obviously, that s very rare, but as for those persons who 
are in one's view unjustly treated, it is the same remedy that a 
person unjustly treated in the court system is left to. 

Mr. Edwards. You also gave as a reason for being in opposition 
to this bill that the courts are overburdened now and would be fur- 
ther overburdened. Is that really a satisfactory basis for denying a 
remedy? Wouldn't a better remedy be to require the courts to 
shape up? 

Ms. KuHL. Well, there has been an increase in the caseload 
which has continously outstripped the ability to supply judges to 
that system. We don't really know what the causes are in the in- 
crease in litigiousness in our society. Perhaps if we knew more we 
could do something about that. 

I have not suggested that the caseload alone is an adequate, inde- 
pendent basis for denying judicial review if there were, first of all, 
a provable problem in the existing system and, second, if we could 
be certain that we were going to make things better. And that, I 
think, is the real heart of oua view, the Department of Justice's 
view of this matter, that we may in fact make things worse, not 
better. 

Mr. Edwards. My last quick question, Mr, Chairman. We have a 
precedent here with the Board of Correction of Military Records, 
used mostly by officers I believe. There is judicial review for BCMR 
decisions yet. For decisions under the Board of Correction of Mili- 
tary Records, there are less than 100 cases that end up in the 
courts per year. Isn't this an indication that judicial review for vet- 
erans is not going to overburden the courts? 

Ms. KuHL. Well, Mr. Congressman, I am not exactly certain what 
the legal issues are in that particular area. I think that frankly 
within the veterans' benefits area the more proper analogy would 



25-550 O— 83- 



14 

be to the social security system where there are medical issues and 
that type of thing, and I think that analogy would probably be a 
better one. 

Mr. Edwards. Thank you, Mr. Chairman. 

Mr. Montgomery. Thank you, Don. Do any other members have 
any questions they would like to ask this witness? 

Dr. Rowland. 

Dr. Rowland. Thank you, Mr. Chairman. While it may seem 
that denial of this right does deny a basic constitutional right, I 
also question the validity of the overloading of the courts as being 
a reason for not doing it. 

But I want to ask a question for information. In the active mili- 
tary now, is there a right of appeal outside of the military judicial 
system? I know there is a difference of being charged with a crime 
and looking for some benefit here, but is there any allowance for 
people in the military on active duty to appeal outside of the 
system? 

Ms. KuHL. I am not certain of the answer to the question and I 
would want to be specific, I think, with regard to exactly the condi- 
tions under which review is allowed, if it is allowed. So, with your 
permission, I would like to submit that answer for the record. ^ 

Dr. Rowland. I would like to know about that, Mr. Chairman, 
because if we do allow review outside of the system so far as veter- 
ans are concerned, it would just open the door for a possible appeal 
for people in active military service — are they being denied a con- 
stitutional right by not being allowed to appeal outside of the 
system? I would like to learn about that. 

Mr. Sutton. Mr. Chairman, I've got some things to say about 
that. 

Ms. KuHL. Mr. Chairman, if I could make one additional com- 
ment, if that would be appropriate. 

Mr. Montgomery. Jim — excuse me just a second. We are very 
glad to have our friend here, the Vietnam veteran, but he is not a 
witness this morning. We would be glad to have members talk to 
him at a later date. We are glad to have you here, but we will have 
to proceed in an orderly manner, which you understand. 

Thank you. 

Ms. KuHL. I just wanted to make one comment on the issue 
whether there is a due process right to review here. The courts 
have held that there is no constitutional right of judicial review of 
an administrative order. The Supreme Court has held that under 
the statute involved here, there is review available when the con- 
stitutionality of a statutory provision in this area is questioned, but 
the courts have held there is no other due process right to judicial 
review. 

Mr. Montgomery. The Chair recognizes Lane Evans, then Mr. 
Penny, and then Mr. Don Edwards, the way you came in. 

Mr. Evans. I want to get something straight. Did you say that 
about half of the social security cases appealed to district courts 
are reversed? 

'Seep. 146. 



15 

Ms. KuHL. That is correct. Half are reversed or remanded. But 
that is characteristic of a reversal rate that exists throughout the 
social security process at every layer of review. 

Mr. Evans. Well, expecting nearly 25,000 cases, as I understand, 
if there was a judicial review bill appealing to veterans with the 
same reversal rate, you could possibly have 12,500 veterans with a 
reversed decision. In other words, a veteran appealing to district 
court and having his case reversed would be happier than having 
to deal with the Board of Veterans' Appeals in the VA. 

Isn't that a pretty significant number of people per year that 
presently don't have that kind of remedy. And isn't this evidence 
that there is widespread injustice without judicial review? 

Ms. KuHL. No, there certainly can be no correlation drawn be- 
tween what the reversal rate is in the social security area and 
what it would be likely to be in the Veterans' Administration 
area 

Mr. Evans. Well, why do you use the social security system as an 
example of what would happen with judicial review? 

Ms. KuHL. I am using that as an example because we know from 
that system that there are inconsistencies in the law among the 
various circuits, among the various district courts. It is an inevita- 
ble result of the process of appealing in the article III system that 
we now have. I am using the social security system as an example 
of that. 

There is no way of know whether the decisionmaking adminis- 
trative process in the social security area is better or worse than 
the administrative decisionmaking process in the VA, although, 
again, we have not heard accusations of widespread unfairnesses in 
the VA system and, indeed, there seems to be a fair degree of satis- 
faction with the general outcome in this area. 

Mr. Evans. Well, I just have a comment then, Mr. Chairman. We 
hear constantly on this committee from the VA and from this ad- 
ministration that they cannot afford agent orange compensation, 
that they cannot afford post-traumatic disorder treatment centers, 
that they cannot now afford judicial review, that the courts would 
be overburdened, that there would be a backlog of cases. I wonder 
when veterans are going to have some priority in this country? 
This just seems another attempt, in my opinion, to say, "When it 
comes to veterans, we can't afford it. We can afford it for social se- 
curity, we can afford it for all kinds of other administrative agen- 
cies, but not for the veterans of our country." 

Ms. KuHL. I would just say in response to that, if I may, Mr. 
Chairman, that the administration has proposed that the caseload 
has far outstripped the ability of the existing Federal judiciary to 
deal with it and we have, therefore, asked the Congress for addi- 
tional slots for the district court judges and court of appeals judges 
necessary to deal with even the existing caseload. 

Mr. Montgomery. Thank you, Ms. Kuhl. Thank you, Mr. Evans. 
The Chair will recognize Mr. Edgar and then Mrs. Johnson of Con- 
necticut. 

Mr. Edgar. Thank you, Mr. Chairman. 

I am having a little problem in understanding how you and the 
Justice Department know what the caseload would be of veterans' 



16 

appeals. Can you give us some data as to how would you would 
know what the impact would be on the courts? 

Ms. KuHL. Well, we do know that there are approximately 34,000 
cases decided per year by the Board of Veterans' Appeals. Of those 
the denials would be approximately 25 percent and some percent- 
age would be appealed of those 25 percent. So you have a total uni- 
verse, if every case were appealed of what could be 10 percent of 
the existing Federal caseload. 

Mr. Edgar. Don't you believe that that caseload would begin to 
taper off over time as the courts would handle those cases and 
people would see that it is not as easy as they might have antici- 
pated, and that only those more serious cases would, in fact, go to 
judicial review? 

Ms. KuHL. Well, indeed, it may increase over time because, 
again, I come back to this inconsistency among the circuits that 
can be expected. Those inconsistencies are the stuff that lawyers 
look for when they are trying to find a way of succeeding in a re- 
versal. The more the law is in a state of flux, the more fertile the 
field for the legal profession and indeed it may increase over time. 

Mr. Edgar. Let me ask you two specific questions: Do you know 
anything about agent orange? 

Ms. KuHL. I am not aware of the medical or chemical aspects. 

Mr. Edgar. Let me ask you a second question. Do you know any- 
thing about atomic veterans and their needs? 

Ms. KuHL. Again, that is something that is in litigation in the 
Justice Department. 

Mr. Edgar. I don't anticipate that you would know anything 
about that and the VA has a stated policy while they are attempt- 
ing to try to help in the agent orange area and in the atomic veter- 
ans area, if persons go through the Board of Appeals because there 
is no compensation as a war-related injury for either exposure to 
toxic chemicals or exposure to radiation or, in very rare cases given 
any clear analysis, don't you think that it would be realistic and 
responsible to adjudicate in the courts as opposed to an agency 
having the final say in terms of the appeal process who, clearly — 
while it's not up to you to know anything about those subjects who 
have taken pretty much a stated policy that they, on an overall 
basis, don't want to give compensation, don't want to see it as a 
war-related, service-connected injury, don't you think that is really 
a legitimate role of the courts to decide whether or not there was 
causality? 

Ms. KuHL. Well, I certainly don't want to make any representa- 
tions or accept any characterizations of what the VA has done in 
this area or what stances they have taken either as a policy matter 
or as an individual matter 

Mr. Edgar. May I interrupt you there? 

Ms. KuHL. Yes, you may. 

Mr. Edgar. In your statement though you come representing the 
Justice Department making a statement about whether or not the 
VA's appeal process at present is adequate to protect the rights of 
people, so I have difficulty with your prefaced remarks just then 
because if you can't make the statement about what the VA does, 
then how can you as the Justice Department, make a statement as 
to whether or not they are accurate? 



17 

Ms. KuHL. Our suggestion in our statement that we are not 
aware of allegations of widespread unfairness in the system — and I 
also suggested in my summary statement that if there are specific 
areas of problems those can be dealt with through the legislative 
process as well. To give it to the court system is to require perhaps 
years, perhaps even decades for those problems to be worked out. 

Mr. Edgar. Let me ask you this question. If you, as a Justice De- 
partment employee, were discriminated against on the basis of sex 
and you went through the appeal process and your superiors and 
those in the appeal process simply denied any allegations and yet 
you had factual evidence to demonstrate you had been prejudiced 
against, wouldn't you want the right of a judicial opinion as to 
whether or not that was discrimination against you? 

Ms. KuHL. If I were able to go to an independent board such as 
the Board of Veterans' Appeals I would feel satisfied. 

Mr. Edgar. Thank you, Mr. Chairman. 

Mr. Montgomery. Thank you, Mr. Edgar. The Chair got the 
order a little fouled up. The Chair recognizes Mrs. Johnson and 
then Mr. Penny. I am sure Mr. Penny will understand. Nancy 
Johnson of Connecticut. 

Mrs. Johnson. Thank you very much. 

I see this matter a little differently than my colleagues, I gather. 
I have been involved in many cases of both sex discrimination and 
other kinds of benefit denials that have been in the courts, and 
denial of timely justice is indeed denial of justice. I think that the 
matter of overcrowding is a very serious matter and does have an 
impact on whether justice is even available. The States throughout 
the Nation are taking more and more cases out of the court and 
handing them to administrative judges and, while in those in- 
stances there are opportunities for appeal, nonetheless, there is a 
whole body of actions that indicates that to delay that justice is 
indeed to prevent justice. 

So while I appreciate the intent of this legislation, I think we 
have to very carefully consider both the impact on uniformity and 
on access to justice and I would like to know whether your Depart- 
ment has done any evaluation or whether there is any research 
available on the appeals rate in administrative courts at the State 
level, assuming that the Federal judiciary doesn't have that kind of 
process, but I don't know that. Does the Federal judiciary have 
that kind of process in other areas where there is the right of 
appeal from which you could gather some information about 
appeal rates in the those settings? 

Ms. KuHL. You are talking about something like a State adminis- 
trative process where there wouldn't be a final appeal to the courts 
and the timing of that vis-a-vis an analogous process with appeal to 
the courts. 

Mrs. Johnson. Yes. 

Ms. KuHL. I do not have that information at hand, but we would 
be glad to do a search and perhaps the Administrative Conference 
would have something available with regard to those timing consid- 
erations. 

Mrs. Johnson. I don't think that that information is available 
for the Federal system, but I think it must be available for the 
State systems. I think in the last 3 or 4 years there has been a 



18 

movement in that area, so for us to be able to take a look at what 
has been the experience of the administrative courts in appeal pro- 
cedures and review demand would be helpful. If you could get us 
any information along that line, I think it would be appreciated. 

Ms. KuHL. We would be happy to see what is available on that 
subject. ^ 

Mrs. Johnson. I think also if you could give us some more de- 
tailed information about the experience of social security appeals — 
how many are remanded, what are their categories of reasons. If 
we could get a better understanding, we can, I think, look more re- 
alistically at the problems here and I think, from our part, I would 
like to have a better understanding of whether the energy for this 
bill comes from primarily the concern with agent orange and 
atomic exposure or whether it is more broad spread. I think that 
information also ought to play into our evaluation of making as 
broad a change as this would affect.^ 

Thank you. 

Mr. Montgomery. Thank you, Mrs. Johnson. 

Mr. Penny. 

Mr. Penny. A lot of the discussion has centered around the in- 
creased workload for the court system. Would the establishment of 
a special appeals court for these veterans' cases satisfy some of 
your concerns or the concerns of the Department of Justice? 

Ms. KuHL. It would help in the area of the inconsistencies that I 
have referred to. If you did have a court, say, an article I court, to 
which all of these cases would be appealed and then, say, a further 
appeal to an appellate court such as the court of appeals for the 
Federal circuit, which would also be a single court for the entire 
country, you would eliminate some of the inconsistencies I have 
talked about. 

Problems remain, of course, because it still introduces an adver- 
sary aspect into the system and probably that will create problems 
in the administrative area as well. Your suggestion does, however, 
help some of the problems I have been discussing. 

Mr. Penny. I would also like to find out your opinion regarding 
appeals based on appeals from veterans who are filing for compen- 
sation because of agent orange exposure or exposure to atomic radi- 
ation. Is it your opinion that appeal on the basis of denial of proce- 
dural due process is available to victims of agent orange or atomic 
radiation exposure based on their demonstration of evidence that 
the VA has a policy against granting too many of those cases. It 
does seem to many of us to be a policy decision to limit the expan- 
sion of compensation in this area. So few veterans are receiving 
compensation in these cases. Would you view that as a procedural 
decision? 

Ms. KuHL. Well, we certainly look at all of these cases individ- 
ually in considering the defenses that we raise. However, to the 
extent that you are talking about a challenge of individual adjudi- 
cations in the agent orange area, 211(a) would seem to preclude ju- 
dicial review. 



'Seep. 148. 
2 See p. 148. 



19 

Mr. Penny. My concern here is that there seems to be a poUcy in 
place that brings into question whether the VA is really bringing 
in a case-by-case determination here or whether there is a general 
prejudice against granting compensation in those areas. I was 
trying to get a handle on whether an appeal based on due process 
would be possible in those cases. I understand your answer to be 
"no," that that probably isn't the case, and that the view is that 
these are being handled on a case-by-case basis and there is no pro- 
cedural prejudice against veterans filing claims based on exposure 
to radiation or to agent orange. Is that correct? 

Ms. KuHL. Well, I don't think I can really improve on my earlier 
answer that to the extent you are talking about a challenge to indi- 
vidual adjudications, 211(a) certainly would seem to preclude 
review. 

Mr. Penny. I have no further questions. 

Mr. Montgomery. Thank you, Mr. Penny. We'll have a vote in a 
minute. I'll just see if anybody else has any other questions. 

We thank you for being here this morning. We have a very fine 
attendance of the subcommittee. Marcy Kaptur, do you have any 
questions? 

Ms. Kaptur. No questions, Mr. Chairman. 

Mr. Montgomery. Well, if there are no questions, Ms. Kuhl, you 
have handled yourself very well here this morning. We would hope 
you would stay around to hear the next panel, which will be 
mainly made up of veterans organizations and this will be our last 
panel this morning. 

The committee will recess, but we would like to ask the members 
of the subcommittee, if you can, to come back and hear this last 
panel. 

Mrs. Johnson. What time will we reconvene, Mr. Chairman? 

Mr. Montgomery. We will reconvene in 15 minutes. It is a vote 
on the Journal so the committee is now in recess. 

If the different veterans organizations would come up to the wit- 
ness table, we will be ready to go when we come back. 

[Brief recess.] 

Mr. Edwards. The subcommittee will come to order again. We 
are pleased now to have testimony from a very distinguished panel: 
Lt. Col. David J. Passamaneck, who is the national legislative di- 
rector of AMVETS; John F. Heilman, national legislative director. 
Disabled American Veterans; Paul S. Egan, deputy director of the 
National Legislative Commission and Robert E. L5mgh, director of 
the National Veterans Affairs and Rehabilitation Commission of 
the American Legion; and Mr. Phil R. Mayo, special assistant, Na- 
tional Legislative Service, Veterans of Foreign Wars. Is Mr. Clark 
with you also? 

Mr. Mayo. Yes, sir. 

Mr. Edwards. Well, we are pleased to have Mr. Clark also. This 
certainly is an impressive group of witnesses. 

Without objection, all of the statements will be made a part of 
the record. WTio wants to be first? 

Colonel Passamaneck. I will go first as long as my name is first. 



20 

STATEMENT OF A PANEL OF WITNESSES CONSISTING OF LT. 
COL. DAVID J. PASSAMANECK, NATIONAL LEGISLATIVE DIREC- 
TOR, AMVETS; JOHN F. HEILMAN, NATIONAL LEGISLATIVE DI- 
RECTOR, DISABLED AMERICAN VETERANS; PAUL S. EGAN, 
DEPUTY DIRECTOR, NATIONAL LEGISLATIVE COMMISSION 
AND ROBERT E. LYNGH, DIRECTOR, NATIONAL VETERANS AF- 
FAIRS AND REHABILITATION COMMISSION, THE AMERICAN 
LEGION; AND PHILIP R. MAYO, SPECIAL ASSISTANT, NATIONAL 
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS, AC- 
COMPANIED BY MR. CLARK 

STATEMENT OF COLONEL PASSAMANECK 

Colonel PASSAMANECK. AMVETS is pleased to present its views 
on the issue of judicial review of veterans' claims. Because the invi- 
tation does not specify any particular proposed legislation, we will 
dwell on the concept of judicial review and only touch on some of 
the ancillary issues such as procedure, rules of evidence, and attor- 
ney's fees, which are raised by pending legislation such as S. 636. 

AMVETS is fully appreciative of the deserved description of VA 
adjudicated proceedings as "nonadversary." We believe that in 
most cases the system is administered with skill, compassion, and 
objectivity by VA officials and that the legitimate interests of the 
claimants are given the respect to which they are entitled. 

We are most favorably impressed with the relative low cost and 
efficiency of the VA adjudicative system, employing as it does the 
services of trained specialist representatives of the service organi- 
zations who assist claimants at no cost to them. 

When we contemplate the insurmountable costs associated with 
litigation in the Federal courts, the VA system looks very good in 
comparison. 

The underlying issue with which we are concerned, however, 
when we consider providing access to the courts for the veteran 
claimant is the question of whether that claimant should have the 
option of judicial review of his or her claim in accordance with the 
claimant's own judgment of the merits of the claim and the risks 
and costs involved. 

AMVETS believes that claimants for noncontractual VA benefits 
and entitlements should have the same right of recourse through 
the court system as claimants for other governmental entitlements 
after exhaustion of administrative remedies. 

We believe that the right to take the risk of litigation belongs to 
the claimant and should not be precluded by the good offices of VA 
adjudicators or service organizations, however benevolent their mo- 
tives. Veterans are full-fledged citizens and are entitled to the 
same rights and privileges as other citizens. The idea that they 
must be protected from the harsh realities of the real world by an 
insulative adjudicative system is an insult, not only to their intelli- 
gence but to the sacrifices they have made to preserve the very 
system of justice from which they are excluded. 

As to the scope of review, the courts in Johnson v. Robison, Plato 
V. Roudebush, Wayne State University v. Cleland and other cases in 
recent years have made it clear that judicial review does, in fact, 
prevail where the issues pertain to the basic fairness of VA regula- 
tory or adjudicative procedures. The cases, however, have not all 



21 

been consistent throughout the circuits and legislation to clearly 
define the scope of permissible review is badly needed. 

The review of VA determination should be restricted to the evi- 
dence of record, the constitutionality, statutory authority of the 
agency's actions, and regulations, and whether or not the burdens 
of proof and benefit of doubt have been properly adhered to. No one 
is seriously suggesting that the courts substitute for the profession- 
al factfinding machinery of the VA adjudicative system. The claim- 
ant is, however, entitled to an evaluation of the significance and 
weight of the evidence by an impartial tribunal completely inde- 
pendent of the VA after exhaustion of administrative remedies. 

Respite the conceded benevolence of the VA under the current 
system, the fact remains that in determining the outcome of 
claims, the VA serves as judge, jury, and executioner in a closed, 
potentially self-serving system. In discussion on the issue of judicial 
review thus far many of the supporters of review have specified 
that such reviews should be limited to questions of law and regula- 
tion. AM VETS adheres to this concept as long as it is clearly un- 
derstood that it specifically includes a reevaluation of evidence of 
record to determine whether burdens of proof have been sustained 
and benefit of doubt has been afforded. 

Review which would be restricted to the constitutionality and 
statutory authority of regulatory and administrative actions of the 
VA is what we already have as a result of the cases which we cited 
earlier. We thus favor a somewhat broader scope of review than 
that apparently provided in S. 636, a view more consistent with 
Senator Cranston's. 

With the current fee restrictions, even if judicial review were 
permitted, the veteran would be precluded from employing compe- 
tent legal counsel in his cause. If those restrictions were to persist, 
the service organizations and legal aid agencies would be obligated 
to assume most of the costs of judicial review of VA determina- 
tions, an obligation which would be beyond the capacity of most 
service organizations. 

AMVETS therefore supports the proposed modifications of the 
fee restrictions set forth in S. 636, 98th Congress. By the same 
measure of fairness, we believe that the other provisions of S. 636 
relating to standardizing of administrative procedures and judicial 
review should be enacted, subject to the views which I have ex- 
pressed on the scope of factual review. 

Since 1979, Mr. Chairman, legislation substantially identical to 
S. 636 has been enacted by the Senate with no corresponding 
action in the House. All of the major veterans organizations except 
one have consistently supported judicial review in some form. 

From 1977 through 1979, the VA not only supported judicial 
review but the General Counsel's office pioneered in the expostula- 
tion of its merits. With the change in administrations the VA 
switched sides on July 15, 1981, and opposed review, because, as 
they explained, they came to realize that it would cost too much. 

In other words, we should be unwilling to spend the necessary 
funds to secure for the veteran the same procedural fairness which 
every other citizen has relating to all other Federal agencies. 

The overwhelming majority of the veterans in this country want 
judicial review, as evidenced by the decisive action of the Senate in 



22 

1979 and 1982. The opposition of the minority should not be per- 
mitted to continue to block this necessary enfranchisement of our 
Nation's veterans. 

Thank you. 

[The prepared statement of Colonel Passamaneck appears on 
p. 149.] 

Mr. Edwards. Thank you, Colonel Passamaneck. I believe Mr. 
Heilman is next, is that correct? 

Mr. Heilman is national legislative director of the Disabled 
American Veterans. 

STATEMENT OF JOHN HEILMAN 

Mr. Heilman. Yes, sir. Thank you, Mr. Chairman. I will summa- 
rize my prepared statement. Let me start off by saying that the 
DAV believes that when you look at the adjudication process of the 
VA, most likely, an objective analysis would indicate that claims 
decisions are being performed by a competent, dedicated VA per- 
sonnel and that these decisions are fairly equitable; they are not 
capricious or arbitrary. 

Never the less, the VA is unique among all Federal departments 
and agencies in terms of the isolation of its decisionmaking process 
not being subject to any form of judicial review. It has been noted 
that the VA passes judgment on claims that are made against its 
agency and, in some cases, it offers representation to the veteran 
who is filing a claim. It is judge and jury and, as I indicated in rny 
statement, commonsense says that if you are going to sue the rail- 
road you don't hire a railroad attorney. 

In accordance with our convention mandate, therefore, the DAV 
does support the basic concept of judicial review. We do believe 
that a VA claimant that has received an adverse benefit determi- 
nation and who has appealed such a determination all the way 
through the process up to and including action by the Board of 
Veterans' Appeals should have access to some form of judicial 
review. 

Having said that, I must note, again in accordance with the con- 
vention mandate, we do not favor placing judicial review in the 
Federal district court system, as is proposed by the Senate-passed 
bill and other bills pending in this committee. We favor the cre- 
ation of an independent court of veterans' appeals. It would consist 
of judges appointed from civil life by the President, subject to 
Senate confirmation. Legislation to that effect has been introduced 
and is pending in this committee. 

I would also point out that we do not favor one other title in 
S. 636 and that is changing the present attorney fee limitations 
that apply to private attorney representation in VA proceedings. 
We do not believe that this should be modified. I will point out that 
we would have no objection to the payment of reasonable legal fees 
in any judicial review process that the Congress might enact, but 
we do not believe the fee limitations should be removed for VA rep- 
resentation. 

I will conclude now, Mr. Chairman, and, of course, be willing to 
answer any questions you have later. 

[The prepared statement of Mr. Heilman appears on p. 154.] 



23 

Mr. Edwards. Thank you, Mr. Heilman. Mr. Paul S. Egan is 
deputy director of the national legislative commission of the 
American Legion. We welcome you. 

STATEMENT OF PAUL S. EGAN, DEPUTY DIRECTOR, NATIONAL 
LEGISLATIVE COMMISSION; AND ROBERT E. LYNGH, DIREC- 
TOR, NATIONAL VETERANS AFFAIRS AND REHABILITATION 
COMMISSION, THE AMERICAN LEGION 

Mr. Egan. Thank you, Mr. Chairman. Bob Lyngh here, to my 
right, is going to summarize our remarks. I think a couple of pref- 
atory remarks are in order, however, as we have been identified as 
apparently the only other organization that has opposed judicial 
review in the past. I think it's fair to say that we recognize the sub- 
stance and merits of the arguments on the opposite side of the 
issue from us, but we respectfully submit that the majority of dele- 
gates at our national convention have consistently come down in 
favor of the position that we espouse today. I would add that until 
that changes we will continue to uphold that position, and certain- 
ly we would ask that our position be recognized equally to that on 
the other side of the issue. 

Mr. Edward. Thank you, Mr. Egan. 

Mr. Lyngh. 

Mr. Lyngh. Thank you, Mr. Chairman. On behalf of the 2V2 mil- 
lion members of the American Legion we are pleased to have this 
opportunity to present to the subcommittee our views on judicial 
review. 

The present position of the Legion on judicial review is set forth 
in resolution No. 141 emanating from the American Legion, State 
of Ohio organization, adopted by the 1982 National Convention. A 
copy of the resolution is attached to the statement and is com- 
mended to the subcommittee's attention.^ 

In discussing the present position of the Legion, it is appropriate 
to state to the subcommittee that judicial review continues to be a 
matter of active consideration by this organization. It is expected it 
will again be considered at our National Convention which will 
take place next month. If the delegates to the convention effect a 
change in position, the subcommittee will be so notified. 

At the moment, however, we must place before the subcommittee 
the reasons that have guided the Legion to its present position and 
have caused it to look unfavorably on the concept of judicial review 
since 1959. We take note of the fact that current bills pending in 
Congress and providing for judicial review of veterans' claims have 
been modified in some measure from bills presented in earlier Con- 
gresses. There seems to be an effort here to address some of the 
concerns the Legion has heretofore expressed. 

Whether the modifications would, in fact, achieve the desired 
result in actual practice would remain to be seen. However, it must 
be said that modifications included in currently pending legislation 
do not completely allay the concerns the Legion has as to the funda- 
mental effects of the imposition of judicial review on the present 
system of adjudicating veterans' claims. 

'Seep. 171. 



24 

The conclusion we draw is that veterans under the present 
system of claims adjudication within the agency of the Veterans' 
Administration receive more consideration and have a better 
chance to develop their claims successfully than they would if the 
possibility of litigation in the Federal court loomed over each case 
while it was in the process of development and presentation before 
local rating boards and the Board of Veterans' Appeals. 

Part of the problem lies in the fact that the average person, in- 
cluding attorneys, do not understand how this could be so because 
they are not experienced in claims development and presentation. 
It is necessary to engage in this work, as American Legion service 
officers do on a daily basis, and to know how the VA adjudication 
system works in order to take advantage of the various avenues 
that can be used to promote successful consideration of claims. 

It is our considered judgment, based on our long experience at 
helping veterans get benefits from the Government that, given the 
judicial review of veterans' claims, we will end up losing more 
cases than we will win, speaking of that category of cases that is 
most controversial, marginal and thus, the most difficult to argue. 

The American Legion's historical record in winning difficult 
cases is a good one. We are as expert in the business of veterans' 
advocacy as is any other person or group that deals in veterans' 
affairs and all we can offer is our best judgment, which is what we 
are doing at this time. 

This leads us to two final points. First, the American Legion's po- 
sition is not set in concrete in the matter of the current limit of 
$10 as an attorney's fee for services rendered in the pursuit of 
justly entitled benefits. The attorney is fairly entitled to recover 
the cost of providing service, where such services are desired. The 
American Legion has no objection to an adjustment of the attorney 
fee now provided by law with the obvious provisal that the adjusted 
amount should not be so high as to be lucrative to the provider. 

Second, the American Legion wishes the record to show that it 
has no essential objection to the establishment of an independent 
court of veterans' appeals, whether to sit in Washington or to have 
traveling panels. Should Congress decide the establishment of such 
an independent court would enhance the veterans' effort to obtain 
benefits to which entitled, the Legion would view such an initiative 
from a positive perspective. 

Thank you, Mr. Chairman. 

[The prepared statement of the American Legion appears on 
p. 16L] 

Mr. Edwards. Thank you, Mr. Lyngh. 

Our last member of the panel to testify represents the Veterans 
of Foreign Wars, Mr. Phil R. Mayo, accompanied by Mr. Clark. 

STATEMENT OF PHILIP R. MAYO, SPECIAL ASSISTANT, NATIONAL 
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF 
THE UNITED STATES 

Mr. Mayo. Thank you, Mr. Chairman. The subject of judicial 
review of Veterans' Administration benefit determinations has 
been before the Congress for many years. Since the 94th Congress 
proposals have been introduced to afford veterans their day in 



25 

court. In supporting judicial review, however, the VFW is not being 
critical of the VA's claim processing apparatus, including the 
Board of Veterans' Appeals. 

Mr. Chairman, our resolution supports legislation which would 
provide judicial review of Veterans' Administration benefit deter- 
minations concerning questions of law and regulation. We believe 
that this concept would adequately permit dissatisfied claimants to 
seek relief in the appropriate court upon exhaustion of their ad- 
ministrative appeals, meaning no lawsuit could be initiated until 
after a final decision had been rendered by the Administration. 

By limiting judicial review to questions of law and regulation we 
believe a flooding of cases to the Federal courts is avoided and, at 
the same time, the informal, flexible review procedure currently in 
place within the VA is preserved. 

We do not believe the interpretation of facts by the Administra- 
tion has been the major impetus behind the aspiration for judicial 
review nor do we contemplate such a judicial review since such 
would lead to de novo review of claims. 

Rather, the interpretation of law and regulation, in our opinion, 
is most in question. We submit, Mr. Chairman, that for many vet- 
erans claims proceedings before the Administration are the most 
important event in their lives, that many believe they are involved 
in a legal proceeding the importance of which causes them to ques- 
tion our professional staff as to the availability to them of higher 
relief in the courts. 

Although our resolution does not address the issue of attorney's 
fees we are of the opinion the current $10 limitation on such fees, 
payable to attorneys representing veterans before the VA is unre- 
alistic. The limitation on attorney's fees dates back to the post-Civil 
War period with the present $10 level being established in 1924. 
The intent of this limitation was to protect veterans from those 
who would resort to unscrupulous means in order to generate cli- 
ents. It does not appear that there was consideration given at the 
time of imposing this limitation to the fact that court review would 
be a possibility or to the sometimes very complex nature of today's 
cases. 

This limitation also effectively denies the VA beneficiary the 
freedom and right of choice of representation in pursuing a claim 
with the VA. 

This concludes our oral statement. 

[The prepared statement of Mr. Mayo appears on p. 173.] 

Mr. Edwards. Thank you, Mr. Mayo, and that concludes the tes- 
timony by the four major veterans organizations in the United 
States. It appears that three out of four are in favor of judicial 
review and the fourth, the great American Legion, is sort of in op- 
position, but wavering and perhaps might change its mind at the 
next convention. I believe that was what your testimony was, Mr. 
Lyngh. 

Mr. Lyngh. Yes. 

Mr. Edwards. The gentleman from Illinois, Mr. Evans. 

Mr. Evans. Thank you, Mr. Chairman. 

I would just like to address a few questions to the American 
Legion representatives. You state that entry of veterans' claims 
into the Federal judiciary system would immediately place the vet- 



26 

eran in an adversarial relationship with the United States in seek- 
ing approval of claims. But, don't your service officers often advo- 
cate in an adversarial manner in regards to claims they are pre- 
senting in the administrative process? Isn't the involvement of the 
Legion service officers quite often adversarial in nature? 

We often talk about an adversarial role, and I know from my 
own experience with Legion service officers that they often try to 
arbitrate and come up with compromises. But when hard-pressed 
they also push for their veteran claimant, and that is as much an 
adversarial kind of relationship in certain instances as a lawyer 
representing a claimant in court. 

Mr. Lyngh. Well, Mr. Congressman, there is an essential, but 
nevertheless, definite difference. The fact of the matter is that the 
judicial system of the United States is an adversary one, which 
means that, per se, when a person enters the judicial system on 
any kind of case he is in an adversarial relationship to the other 
side of whatever motion or action he files in the Federal court. 

The relationship of the Veterans' Adminstration is basically a co- 
operative one. The object of the agency is to provide the veteran all 
of the benefits to which he is entitled. Naturally, the American 
Legion when it appears as representative of the veteran appears in 
an advocacy role and our object is to make sure that all of the evi- 
dence that tends in the direction of a favorable disposition of the 
claim is presented to the Veterans' Administration. It is not, essen- 
tially, however, an adversarial relationship as you find in the Fed- 
eral judiciary. That's the difference. 

Mr. Evans. You also state that part of the problem lies in the 
fact that the average person, including attorneys, would not under- 
stand how this could be because they are not experienced in claims 
development presentation. I give your service officers, again, more 
credit than anybody in knowing how to present the evidence, 
present a claim. But attorneys who are not often involved in the 
actual administrative process in the Social Security Administration 
often take a case after it's gone through the administrative process 
of appeal in the Federal court. I wouldn't think that I know social 
security law any better than some of the paralegals that work in it 
today, but I have to say that we won cases and we were able to 
present those cases effectively and, particularly, I think \ye were 
more effective in some ways than the paralegals in arguing law 
and regulations. 

If you have had the experience of people who don't normally 
work with social security but can argue those regulations and laws, 
can't you see that the same situation might apply to the veterans 
process? 

Mr. Lyngh. Mr. Congressman, I wouldn't agree they were in a 
better position, I would say this: We believe that our service offi- 
cers know more about the development and presentation of claims 
than anyone else in the country today. At the same time, if the 
lawyer takes the veteran's money, we assume that he is going to 
prepare his case and present it effectively. We certainly would not 
imply otherwise. We have to assume that he would do that. 

Mr. Evans. I guess I am trying to point out that this is not going 
to be a de novo of hearing at the judicial review hearing. It is going 
to be based on the application of law and regulation for the partic- 



27 

ular case. Through my own experience with lawyers, I believe they 
can argue law better than most people that are not trained in ar- 
gument. Maybe that's a reflection on lawyers that they are over- 
argumentative, but I do think that lawyers are particularly 
equipped to handle the kinds of issues that would be involved in 
judicial review cases. I think service officers, although they know 
their regulations and can argue the law, more or less present the 
case factually. We are not trying to change that. Under the bill, we 
are not going to allow any kind of de novo consideration of facts. 
That's why I think lawyers do have a particular position in arguing 
the law and facts, as the VFW has pointed out. 

Mr. Lyngh. Well, I would ask you to keep in mind, Mr. Congress- 
man, that the overwhelming majority of cases that are in dispute 
in the Veterans' Administration involve the evaluation of evidence. 

Mr. Evans. All right. Thank you. 

Mr. Edwards. The gentleman from West Virginia, Mr. Staggers. 

Mr. Staggers. Thank you, Mr. Chairman. 

Mr. Heilman, you mentioned about the court of veterans appeals 
idea. Could you elaborate a little bit on that and tell me how that 
would be different from the present system? 

Mr. Heilman. Yes, sir. First of all, perhaps I should just briefly 
say why we don't believe claims should go in the Federal district 
court system. One major factor is decision uniformity. That's a 
problem right now in the VA system. Across the country the var- 
ious regional offices will sometimes pass judgments on cases that 
are identical or very similar in quite a dissimilar fashion. Decision 
uniformity is a goal that's recognized by all in the veterans com- 
munity as one that should be achieved, and the VA itself, of 
course, is attempting to achieve that. 

We have 97 Federal district courts in the system. I think we 
would find a great disparity in the types of decisions being ren- 
dered across the country and that certainly is undesirable. The 
dockets are crowded now and if we are talking about the 4,000 or 
5,000 cases per year, that is a sizable load to put into the system. 

The appellate period would be lengthy for veterans claimants; it 
would be costly for veteran claimants if they were in the Federal 
district court system. 

I also want to point out that the bills that advocate putting it 
there would, in fact, deny a veteran the right to continue, if he 
chose to do so, the service organization representation that he had 
up through the VA process. Most national service officers from the 
various organizations are not attorneys, they could not go into the 
Federal district court system to continue their representation. 
Should the claimant desire that, he would have to employ an attor- 
ney. And if we are concerned about representation and if we are 
concerned about the fact that attorneys should be allowed intp the 
game or allowed to represent veterans in a judicial review proceed- 
ings, we should also be concerned that the veterans would not be 
allowed to continue their service organization representation that 
they now have. 

We favor the creation of a single court of veterans' appeals 
whose sole responsibility would be to handle such adverse decisions 
that have been denied by BVA. Decision uniformity would not be a 



28 

problem and we would probably find in a very short time that you 
would have uniform decisions being handed down by such a court. 

The length of time in terms of cost and the length of the appeal 
would be much shorter by virtue of a court of veterans' appeals 
and commissioners, as opposed to the Federal district court system. 

Under our proposal veterans could have both private attorneys 
being compensated reasonably for representation or, under our bill, 
the court would allow the representation of the veterans organiza- 
tions. So, basically, that's the reason behind our position. 

Mr. Staggers. So you do see a difference between the system as 
it exists now and your idea? I assume what you are talking about is 
something similar to a bankruptcy judge maybe, something specific 
that they deal with that would be removed from the present 
system. 

Mr. Heilman. Yes, sir. 

Mr. Staggers. I don't direct this to anyone specific — whoever 
wants to answer it — anyone who does favor the judicial review, at 
what level of the Federal court system should the process of judi- 
cial review begin? Is there any feeling? 

Mr. Mayo. You mean at which court it would enter initially 
after — maybe I didn't understand the question. 

Mr. Staggers. The same as any other. 

Mr. Mayo. I don't know that we would have any specific court in 
mind as to which level it should enter. Our resolution doesn't ad- 
dress that. Between our last two conventions we had a panel that 
went very deeply into this issue and I don't know that that was a 
matter that was resolved, as to where it would actually enter the 
court system. 

Colonel Passamaneck. If I may address that question, sir, if we 
are going to get into the Federal court system, other than a special 
separate veterans' court, we would definitely favor going in at the 
district court level for the simple reason that we, as I tried to make 
clear, in my statement, we want a factual review. By that, we don't 
mean de novo; we mean that we take the record and we look at it 
and we see whether or not we agree with the determination of the 
factfinder as to whether or not the veteran has a service-connected 
disability or whatever. We feel that that is an essential part of the 
process, just as Senator Cranston pointed out in his testimony, and 
that can only be done at the district court level. The court of ap- 
peals, circuit courts, and so forth, can never — or are not supposed 
to anyway — they probably do it under some other description — but 
they are not supposed to make findings of fact or pass judgment on 
findings of fact, as to whether a burden of proof has been sustained 
and so forth. Therefore, we specifically would want to enter into 
the system at the district court level. 

Mr. Staggers. Mr. Chairman, I have another question, but I 
know we have another member. If I could be recognized once again, 
I would appreciate it. 

Mr. Edwards. Yes, we will come back to you. 

The gentlewoman from Connecticut, Mrs. Johnson. 

Mrs. Johnson. Thank you very much. 

I would like to just follow up for a moment on Mr. Staggers' line 
of questioning, which I think was very helpful. Colonel, you want 
specifically to be able to enter at the district court level, because 



29 

you feel that the district court is the only level at which the find- 
ings of facts can be reviewed, is that correct? 
Colonel Passamaneck. Yes, that's correct; yes, ma'am. 
Mrs. Johnson. Then if you entered at the district court level 
would you not then be granting several more layers of appeal— and 
not being a lawyer I don't know exactly how many, but you would 
certainly be able to appeal then right to the district and Federal 
court level and all the way up to— what is it— three or four levels 
of appeal from there? ^ 

Colonel Passamaneck. Well, to answer your question, ma am, 
the choice is between getting into the system at the court of ap- 
peals level and then having the option to go to the Supreme Court, 
if you are lucky enough, that is, or getting in at the district court 
level which is one more, that's all. It's a question of three levels or 
two, basically. 

Mrs. Johnson. All right. Thank you. That's helpful. 
The other thing that I wanted to pursue a little further is in 
terms of this independent court. A number of you have suggested 
that you would prefer an independent veterans' court that is not 
part of the federal system. I would like to— and any one of you, Mr. 
Heilman or Mr. Lyngh or Mr. Egan— anyone of you who espouses 
this position is welcome to discuss the matter. I would like to hear 
from you a little bit more of what basis do you think one more 
level of appeal would be useful to the veterans? 

There are already, as I recollect, three levels of appeal. What you 
basically would be doing with a separate court is within the same 
system adding on yet a fourth level of appeal. Outside of respond- 
ing to the pressure that has resulted in the submission of this bill, 
what substantively do you think this would accomplish? 

Mr. Lyngh. Well, if I may say. Madam Congresswoman, one of 
the thrusts in proposing the idea of an independent court of ap- 
peals is the fact that the Board of Veterans' Appeals now is part of 
the Veterans' Adminstration which leads to the feeling on the part 
of some, of course, that it is not totally independent and is influ- 
enced by the policies of the Administrator or the administration 
that happens to be in office. 

Mrs. Johnson. So you would see the independent court— excuse 

me for interrupting, but I want to get this clear 

Mr. Lyngh. Yes. 

Mrs. Johnson [continuing]. As an arm of the judicial department 
not of the VA, although its jurisdiction would be exclusive to veter- 
ans. 

Mr. Lyngh. Well, to whom it would answer is questionable. I 
think that we in the Legion probably envision that, should this 
idea be pursued, the members of the court would, in effect, be, as 
we perceive them, administrative law judges. But the essential dif- 
ference would be that they would have no association whatever 
with the Veterans' Administration. They would be set up in the ex- 
ecutive branch of Government and would enjoy absolute and total 
independence from the Veterans' Administration, which, of course, 
would give them the advantage, you know, of making independent 
decisions which would enhance the veterans' assurance of a com- 
plete and independent and objective review of this case. 



2.'i-sso n—fa- 



30 

Mrs. Johnson. Do any of you have proposals that address the 
issue of appointment? Who would appoint them, who would they be 
accountable to, who pays their administrative costs? You know, I 
need to get a more tangible idea of what we are talking about. 

Colonel Passamaneck. Mrs. Johnson, if I may suggest, we have a 
perfectly good working example of what undoubtedly everyone is 
talking about when they are talking about a court of veterans' ap- 
peals and that is the Court of Military Appeals, which is a court 
that is not really part of the judicial system, it's sort of administra- 
tively under the Department of Defense, but it's completely inde- 
pendent of the armed services, it consists of civilian judges who are 
appointed for a definite period of time, not for life — I think it is 15 
years or something like that — with the consent of the Senate and 
so forth. Of course, the experience of that court — I was in military 
JAG for some 25 years and I can personally attest to the fact that 
it is a terrifically independent court. Most of the people in the Pen- 
tagon are most of the time up in arms over the way the court goes 
in an independent direction, making up its own mind on some very 
crucial issues. I think that we could probably foresee that that 
would be the same situation with the court of veterans' appeals. 

Mrs. Johnson. I think it would be useful to this committee if 
those of you who espouse a separate court, an administrative court, 
could confer on whether or not the Military Court of Appeals is the 
kind of model that you are talking about and would meet your re- 
quirements, both in terms of appointment process and other as- 
pects of it. Then at some point I would like to pursue further how 
this bill, Mr. Lyngh, differs from the previous proposals and why 
then it is more acceptable to the American Legion and perhaps you 
could address that in writing if we don't have time to go into it fur- 
ther today. 

Thank you. 

Mr. Lyngh. I would like to make just one quick point, Mrs. John- 
son. Speaking for the American Legion, I would not like us charac- 
terized as espousing the idea of an independent court of veterans' 
appeals. We find it acceptable. 

Mrs. Johnson. Thank you. 

Mr. Edwards. Mr. Lyngh. Do you have a problem with the cur- 
rent judicial review for the Board for Correction of Military 
Records decisions? 

Mr. Lyngh. We appear before the Board for Correction of 
Records constantly, Mr. Congressman. We provide advocacy before 
those boards. 

Mr. Edwards. To your knowledge, do judges properly review 
those decisions? The BCMR makes decisions that are appealable to 
the Federal district court, is that correct? 

Mr. Lyngh. Yes; I believe they do. 

Mr. Edwards. And apparently the system works all right? 

Mr. Lyngh. Yes, it does. 

Mr. Edwards. So presumably judicial review of the decisions on 
veterans' affairs matters could work similarly well, because the sit- 
uations are almost analagous, except under the BCMR, they are 
mostly officers who are seeking redress while under the Veterans' 
Administration they are enlisted people, generally speaking. 



31 

Mr. Lyngh. The Board for Correction of Military Records is not 
restricted to officers, Mr. Congressman. All former service people 
have access to those boards. Without having given it any great deal 
of thought, the character of cases considered by the two different 
agencies is fundamental. 

Mr. Edwards. Mr. Lyngh, you have stated that you don't believe 
the courts will abide by the language of the judicial review legisla- 
tion. What do you mean by that? 

Mr. Lyngh. We simply mean, Mr. Chairman, that we have an ac- 
tivist judiciary, as the record of the past number of years has 
shown, and our feeling is that if the Federal judiciary finds itself in 
a position to deal with these cases, it will deal with them in an ac- 
tivist manner. 

Mr. Edwards. Does it bother you that under the present system, 
with the Veterans' Administration, in effect, with its own board as 
the judge and jury and prosecutor and so forth; that it is in-house; 
and that there s no real independence? 

Mr. Lyngh. No, because, as we indicated earlier, Mr. Chairman, 
the relationship of the Veterans' Administration to the veterans 
today is essentially a cooperative one and the adjudicative process 
that has been established, in our experience — and may I say that 
we handle thousands upon thousands of cases every year within 
the framework of the Veterans' Administration adjudicative 
system — that system militates in the direction of the veteran, in 
the main, which is not to say that you could not produce a case 
where justice has not been done; that's always true and it's always 
possible and we deal with those constantly, which is why some of 
our cases remain active in the adjudicative system over a period of 
many years, because if we get a case that we think we should have 
won, we just don't stop working on it until we win it. Sometimes it 
takes an awfully long time to get that done. 

Mr. Edwards. Well, thank you very much. 

Mr. Evans, did you want to ask a question? 

Mr. Evans. Well, there is one concern among some members of 
the committee. I'd just like to ask the representatives of the organi- 
zations in favor of judicial review if they see any changes in the 
current system of the Board of Appeals with the enactment of judi- 
cial review. In other words, are we going to keep that intact and 
just merely add the appellate court process? Do you see any 
changes in the administrative process with the addition of judicial 
review? 

Mr. Mayo. Mr. Evans, we don't see any substantive changes that 
would be taking place. If anything occurred, I don't know whether 
you could say it would be more advantageous to a veteran or less 
advantageous if judicial review were available. We think the 
system would continue to operate just as efficiently as it does now. 

Mr. Evans. Colonel Passamaneck. 

Colonel Passamaneck. I don't foresee any changes either. I think 
that the system of representation of veterans by primarily service 
organization representatives would continue. Of course, under the 
way the statutes are drafted the legal people don't really get into 
the picture until time for appeal and I don't think that would 
happen in any event because of the expense involved. 



32 

If anything, maybe the sense of fairness or the factual or the 
fact-finding processes of the Board of Veterans' Appeals might be a 
little bit more careful in terms of the veterans' interests than they 
are now because of the possibility of being reviewed by the courts, 
but other than that, I don't see any fundamental change. 

Mrs. Johnson. Would the gentleman yield? 

Mr. Evans. Yes. 

Mrs. Johnson. Colonel, I find what you say really most surpris- 
ing. I think if you know that you are going to be reviewed in 
court — I mean, if I knew it, and I knew that I might lose that case, 
I tell you, I would build the kind of case that I needed for review 
and I think there is a very real danger. One of the things that con- 
cerns me, having been really quite closely associated with the 
American Legion's service organization, I think there is a very real 
possibility that we will see as a result of this change a pushing out 
of the voluntary advocate, because when you go to judicial review 
you can't afford for your advocate to have made a mistake. 

Colonel Passamaneck. To some extent, Mrs. Johnson, that will 
happen, and one of the valid objections to judicial review, which we 
recognize, is the fact that it will, and I think I alluded to it in my 
statement, it will probably create a substantial financial burden on 
the service organizations, which will have to go out and hire some 
lawyers in order to provide this service or at least assist in provid- 
ing it to their clients as they now do with nonlegal representation. 

The answer is, "Yes, I think we probably will get some of that, 
but I don't think they are going to displace the system as it exists 
completely." What it will amount to is that for some small percent- 
age of cases, you will have to have some legal talent around. 

Mrs. Johnson. I do think it's terribly important. Colonel, or I 
wouldn't interrupt again. It's terribly important for this committee 
to be absolutely as rigorously realistic as possible about the effect 
of these changes because I think in the end the service organiza- 
tions that I know, the veterans' posts that I know, the American 
Legions in my district that I know, their membership are factory 
workers and people like that. There isn't any financial way in 
which they can raise a lot of money to alter dramatically the 
nature of their advocacy and service organization to fund it to a 
level where it could possibly provide the paid advocacy that this 
system may lead to. 

Now, I am not saying that it will, but I think it's a very real pos- 
sibility. If you look at what has happened in other areas and 
what's happened when we move things into the judicial setting and 
the legal technicalities, I think we have to consider that very seri- 
ously, and I think that's something that all of the organizations 
ought to come back to us with further information about together 
with evaluations from the experience of their service representa- 
tives and the advocacy involved. 

How do you see your people functioning in a judicial setting? 

Mr. Egan. May I make just one comment, Mrs. Johnson? Not- 
withstanding the fact that we seem to be the only organization that 
is not currently in support of judicial review, were that to happen, 
we would certainly hope that we weren't the only ones defending 
the Board of Veterans Appeals. Indeed, if backlog in the courts is 
an issue on which we can disagree, it certainly is an issue worth 



33 

addressing. The sustained existence of the Board of Veterans' Ap- 
peals is certainly one way to guarantee that the courts are mini- 
mally backlogged, if we can assume that they will be backlogged, 
and that, of course, with the understanding that we do not current- 
ly support judicial review. 

Mr. Heilman. I would like to make a comment, if I could, with 
regard to the question. Of course, if judicial review should be en- 
acted, if you should put it in the Federal district court system, as I 
pointed out earlier, service organizations would not be permitted 
to— simply because most of them do not have attorneys as their 
service officers — would not be able to provide that representation 
in the Federal district court system. 

I would also agree with you that any time you have oversight 
and any time you have someone looking over your shoulder, that's 
going to affect the decisionmaking process of the individual group 
involved and BVA probably would be quite aware that their deci- 
sions would be subject in the Federal district court system or by 
the court of veterans' appeals and whether that would be good or 
bad or would have both positive and negative effects that would 
cancel out, I really don't know. 

But I want to point out one concern that we have with this legis- 
lation that relates to the lifting of the attorney fee limitation. I 
think that's a consequence that this committee should give very se- 
rious consideration, and, as I said before, we oppose it. The attor- 
ney fee limitation, as was pointed out, was placed into effect years 
and years ago when attorneys were perhaps taking advantage of 
veterans in filing for claims. Ten dollars, 50, 60 years ago, even 
though it seems a pittance today, a $10 legal fee was common then. 
I don't think the $10 limitation was put in to shut out attorneys. Of 
course, with the passage of time, that is what has occurred. 

There's no doubt that a $10 legal fee has gone the way of a 5-cent 
cigar. It's ridiculous. I also want to point out to the committee that 
in the interim since this fee limitation was imposed, the service or- 
ganizations have developed their qualified corps of service officers 
to provide, free of charge, effective representation to veteran claim- 
ants. Somewhere between 80 and 85 percent of all VA claimants 
have the representation of the various service organizations. The 
other 15 percent either have no representation or VA representa- 
tion in the form of contact officers at the local level. Approximate- 
ly 3 percent do have the representation of private attorneys in 
terms of those who accept the $10 fee or more, less do it as a part 
of their pro bono caseload. 

If you look at the statistical data from the Board of Veterans' 
Appeals, you will see that the win-loss ratio of cases where you 
have service organization representation and private attorney rep- 
resentation is almost identical. Some years the service organiza- 
tions do better than the private attorneys by a percentage point or 
a fraction thereof. In other years it's the opposite. 

Keeping in mind that the allowance ratios are fairly similar, I 
want to point out that service organizations are required by law to 
provide representation. They will provide representation in any 
appeal that a claimant initiates, and if you look at the BVA case- 
load you will find that many, many cases do not have merit. That 
is a fact that is acknowledged by all. 



34 

The service organizations, although they will counsel in terms of 
what are the possibilities, what are the merits of the case and do, 
in fact, you have a chance to win your claim, if you go to BVA — 
they will provide that counsel. But if the claimant still wishes to 
appeal the service organization will provide representation. We 
don't pick and choose as attorneys do and if we did I believe you 
would find that our allowance rate would be far in excess of the 13, 
14, 15 percent that it is today. 

If you modify the attorney fee, if you let private attorneys into 
VA proceedings, you are, in effect, taking dollars out of the com- 
pensation program, taking dollars out of the pockets of VA claim- 
ants and putting it into the pockets of private attorneys. We are 
talking about hundreds and hundreds of millions of dollars. I be- 
lieve this committee should act in what it perceives to be the best 
interests of the VA claimants. 

If you enact judicial review, by all means, provide for reasonable 
legal fees in the judicial review process that you enact. But there is 
no need and it is not necessary to open the door to private attorney 
representation and payment of fees in VA proceedings. 

Mr. Edwards. I believe that the time belongs to Mr. Evans. 

Mr. Evans. I am done, Mr. Chairman. 

Mr. Edwards. Mr. Staggers. 

Mr. Staggers. Thank you, Mr. Chairman. 

For Mr. Lyngh and Mr. Egan, there has been some talk of the 
cooperative spirit and I am sure that for the most part that does 
exist. My question would be: Wouldn't you agree that there is need 
for more judicial review in certain kinds of cases such as agent 
orange or radiation or post-traumatic stress, those type of cases? 

Mr. Lyngh. No, sir, I would not suggest that in this entire adju- 
dicative process that either the Veterans' Administration or the 
service organizations or the Congress begin to select out certain 
categories of claims. 

Mr. Staggers. I am not suggesting that either. What I am sug- 
gesting is that wouldn't you agree that there is a need in certain 
kinds of cases for judicial review? 

Mr. Lyngh. No, sir. 

Mr. Staggers. Thank you. No further questions. 

Mr. Edwards. Are there further questions? 

The gentlewoman from Connecticut. 

Mrs. Johnson. Thank you. 

Mr. Evans. Mr. Chairman. I wonder if for the clarification of the 
committee members if we could get some information on how attor- 
ney's fees would be handled under the bill. I think that would clari- 
fy some of the problems. 

Mr. Edwards. Without objection, the information will be pro- 
vided.^ 

Mr. Evans. Thank you. 

Mrs. Johnson. I am going to ask for information, too. I would 
like for each of you to give the committee some written indication 
of the need that you see for this legislation. I think it is important 
for us to see precisely where does this come from, what groups 
need it, is it a matter of some of the complexities of agent orange 

■Seep. 338. 



35 

and atomic addressing the needs of those particular veterans 
groups. If that is where it comes from there may be other avenues 
that are preferable in which to address those problems. 

Outside of those categories, are there large groups that are com- 
plaining to you that they don't feel that they have been treated 
fairly by the Veterans' Appeals Board, and if so, let's get documen- 
tation of exactly how the current system is failing. Most of the tes- 
timony has been directed at the theoretical need for appeal and the 
structure that that appeal should take, the form that appeal proc- 
ess should take, as for instance a Federal or a separate or what- 
ever. 

I want to know more from your experience, and I think this is 
best provided to the committee in writing. We need documentation 
of any need for change. In addition, I would like to have some fur- 
ther assessment from you, brief but after today's hearing so that 
you have had a chance to kind of weigh it with your people, of 
what you think the impact, long range, of setting up a judicial 
review procedure would have on the service organization represen- 
tation service that have been so outstanding in performing at very, 
very low cost for all veterans. 

If you would get back to us on those two counts I would appreci- 
ate it very much. 

Mr. Edwards. I think that is an important request to give the 
committee some indication specifically of incidences that have 
taken place and the number of which where redress was unfairly 
denied. ^ 

If there are no further questions, we thank the panel and 

Mr. Evans. Will the questions be a part of the record? 

Mr. Edwards. Yes, the questions will be a part of the record. 

We will dismiss the panel and thank you very much. 

We will officially adjourn the hearing. 

[Whereupon, at 11:30 p.m., the subcommittee was adjourned.] 



'See American Legion response on p. 176. 



JUDICIAL REVIEW OF VETERANS' CLAIMS 



TUESDAY, JULY 26, 1983 

House of Representatives, 
Subcommittee on Oversight and Investigations, 

Committee on Veterans' Affairs, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 9 a.m., in room 
334, Cannon House Office Building, Hon. G. V. (Sonny) Montgom- 
ery (chairman of the subcommittee) presiding. 

Present: Representatives Montgomery, Edwards, Hall, Penny, 
Rowland, Evans, Hammerschmidt (ex officio), Hillis, Solomon, and 
Sundquist. 

Also present: Representatives Daschle and McEwen. 

OPENING STATEMENT OF CHAIRMAN MONTGOMERY 

Mr. Montgomery. Good morning. The subcommittee will come to 
order. 

We will continue receiving testimony on the issue of judicial 
review on veterans' claims. I think the last meeting we had was 
very helpful. I want to thank the members for being here, and also 
the witnesses for adding to the public record by being here and an- 
swering questions. 

Mr. Solomon, since Mr. Hillis is not here, do you have any com- 
ments this morning before we recognize our first witnesses? 

Mr. Solomon. Thank you, Mr. Chairman. 

Bud Hillis, the ranking member on the subcommittee, has been 
delayed but will be here shortly. I would like to read his statement 
into the record, if I might. 

Statement of Hon. Elwood Hillis, a Representative in Congress From the 

State of Indiana 

Mr. Chairman, on July 21 we had a good hearing on this very complex subject. 
Hopefully today will be the same. If I have gleaned anything so far from these hear- 
ings and from the testimony — and almost all of the testimony has been excellent— it 
is that we have a very wide difference of opinion about the subject of judicial review 
of veterans' claims. The American Legion does not favor it but is going to consider 
it again at its forthcoming national convention. It might consider favorably the idea 
of a Veterans' Court. The DAV likes the same idea. The VFW wants only law and 
regulations considered by courts and not facts, and AMVETS seem to agree. The 
Vietnam Veterans of America seem to want total review by the courts, so does the 
American Veterans Committee and so does an organization called Veterans Due 
Process, Inc. 

The Administrative Conference of the United States has no official position, but 
in 1978 seemed to feel that judicial review may be a cure not called for by an un- 
diagnosed ailment. The American Bar Association wants rather complete judicial 
review, and Dean Frederick Davis of the University of Dayton School of Law makes 
a persuasive argument for the Association. 

(37) 



38 

The Department of Justice and the Veterans' Administration argue in great 
detail for the status quo. Through all of this, the Board of Veterans' Appeals of the 
Veterans Administration is pictured at one and the same time as doing a good job 
in a difficult posture while its decisions, which are generally final and not reviewa- 
ble by the courts, are depriving veterans of a so-called constitutional right of a day 
in court with respect to claims for disability compensation or other benefits. It is a 
small wonder, Mr. Chairman, especially in view of the fact that the other body of 
the Congress has for the third time already passed a judicial review bill for veter- 
ans, that we have a most difficult situation before us. Do we or don't we decide to 
pass a law out of this Congress granting judicial review for veterans? 

For my part, Mr. Chairman, I want to study all of the testimony presented by our 
witnesses this morning. They are a knowledgeable and informed group and each 
most sincere in their opinions. I look forward to hearing from each of them. 

Mr. Chairman, that is the statement of Congressman Bud Hillis. 

Mr. Montgomery. Thank you. 

I would like to have my brief statement put in the record, also. 

[The statement of Mr. Montgomery appears at p. 177.] 

Mr. Montgomery. The Chair would like to recognize the ranking 
majority member on the committee, Mr. Edwards, for any com- 
ments that you would like to make. 

Mr. Edwards. Thank you, Mr. Chairman. Again, I am very 
pleased and I know most of the members of this subcommittee are 
very pleased that we are having these important hearings. As the 
statement read by Mr. Solomon points out, there is a great deal of 
controversy about this issue. I know that our friends from the VA 
are going to testify that it is not needed, but there are a lot of wit- 
nesses who are going to disagree with them strongly. So there is an 
issue here that should be resolved and must be resolved, and I am 
looking forward to hearing from all the witnesses. 

Mr. Montgomery. Thank you very much. 

Mr. Hammerschmidt, do you have any comments? 

Mr. Hammerschmidt. No, Mr. Chairman. As you know, I don't 
serve on this subcommittee on a regular basis, only ex officio. I am 
very interested in this subject. I think it is one of the most impor- 
tant matters probably that our committee is going to consider all 
this year, so I am deeply interested in the subject matter. 

I have no further comments. 

Mr. Montgomery. Thank you for being here. 

The Chair would like to recognize Mr. Murphy, who is General 
Counsel for the Veterans' Administration. John, I would like for 
you to introduce the other witnesses with you this morning at the 
witness table. 

STATEMENT OF JOHN P. MURPHY, GENERAL COUNSEL, VETER- 
ANS' ADMINISTRATION, ACCOMPANIED BY KENNETH E. EATON, 
CHAIRMAN, BOARD OF VETERANS' APPEALS; DOROTHY L. 
STARBUCK, CHIEF BENEFITS DIRECTOR; AND EDWARD LUKEY, 
DEPUTY ASSISTANT GENERAL COUNSEL 

Mr. Murphy. Thank you, sir. 

On my left, of course, is Dorothy Starbuck, the chief benefits di- 
rector. On my immediate right is Mr. Edward Lukey, deputy assist- 
ant general counsel. On my far right is Mr. Ken Eaton, chairman 
of the Board of Veterans' Appeals. 

I would like to begin by expressing our appreciation to the corn- 
mittee for the opportunity to testify and present our views on this 
important subject of judicial review. / 



S9 

I think it is fruitful and profitable to begin by identifying the 
issues as well as briefly summarizing what the Veterans' Adminis- 
tration presently does in the adjudication of claims for benefits. 

The issue, quite simply stated, is whether the addition of a layer 
of judicial review to the VA's claims process would be beneficial to 
veterans as a whole. To understand this issue, as I mentioned, I 
would like to briefly summarize how we now determine claims, 
first wdth a statement of two basic governing principles that are 
employed by the agency. 

The first is it is the agency's mission by law and by design to 
afford veterans all benefits to which they are entitled by law. 
Toward this end, as another general principle, the Veterans' Ad- 
ministration has always given the benefit of the doubt to the veter- 
an in resolving claims. 

Our claim process has two outstanding features. First, it is non- 
adversarial, and second, it is informal. The procedure begins with 
the filing of a claim. With the filing of the claim, the VA itself at- 
tempts to garner and obtain the evidence for the resolution of the 
claim. If the VA is not able to obtain all the evidence, or if there 
are other questions that arise, the veteran is requested to submit 
any additional evidence he wants. He is also advised of what evi- 
dence would be helpful. 

The evidence in our process can be a long way from what would 
be required in court. Hearsay evidence is readily acceptable, as is 
evidence from numerous sources that wouldn't ordinarily meet the 
test of the rules of evidence in the judiciary. 

In the process the claimant or the veteran is assisted both by VA 
employees and service organizations. He can obtain a hearing on 
request at literally any stage. When the evidence is acquired or ac- 
cumulated and then reviewed, a decision is rendered in the first in- 
stance. If the decision is to deny the claim at that point, the veter- 
an is provided a notice of the decision with a notice of hearing and 
appellate rights. At that point, if the veteran chooses to go forward, 
he files a notice of disagreement with the agency — again reflecting 
the informality of our process — consisting of a statement to the 
agency that he disagrees. 

At that point in time the agency again reviews the claim and a 
number of claims are changed or modified in that review process. If 
a denial is still the decision of the adjudication level, a statement 
of the case is prepared. The statement of the case will set forth the 
reasons, rationale, and evidence upon which the decision is based 
and will be provided to the veteran. 

Again, the veteran may choose whether he wishes to go forward. 
If so, he does so by an appeal to the Board of Veterans' Appeals. 
The Board of Veterans' Appeals is a "de novo" review — and I think 
it may be important to digress a little bit and describe what "de 
novo" review is. What that means is the Board of Veterans' Ap- 
peals completely reviews the case again. By this time, the veterans 
case h£is been reviewed on three occasions. The Board is also total- 
ly independent in its deliberations. The Board and the agency, has 
always adhered to very liberal rules, allowing the reopening and 
the reconsideration of claims denied by the Board. 

I think the process I have described is very difficult to categorize 
in any other way but extremely favorable to veterans. It reflects a 



40 

preference for veterans which is, in fact, the policy of the United 
States, always has been, and hopefully always will be. Veterans, 
unlike the allegation that has surfaced in judicial review, are not 
treated as second-class citizens. They are treated as first-class citi- 
zens. In the administrative process, they are given procedural and 
substantive rights not enjoyed by other citizens. 

This process is not criticized or roundly condemned. As a matter 
of fact, it is lauded and praised. It is considered to be an effective 
pro-veteran process that is fair and works well. The process also 
does not either legally or factually violate or impinge in any re- 
spect the due process rights of veterans. From a legal point of view, 
it has been held to comply fully with the due process requirements 
by the courts, the branch of Government charged with making 
those determinations. We are not addressing an issue of due proc- 
ess. What we are addressing is an issue of preference or policy, if 
you will, not law. 

In this context, with the procedure that is generally, almost 
unanimously considered favorable and advantageous, I think the 
analysis must go to what are the advantages and what are the po- 
tential disadvantages of subjecting the claims process to judicial 
review and another layer of decisionmaking. The principal advan- 
tage argued is that some decisions would be reversed by the judici- 
ary. I think that we have to concede that that is true. But in re- 
viewing that statement, there are two things that need to be con- 
sidered. 

First, we are dealing with issues of judgment. Some decisions will 
be reversed, not because they are wrong, but because of the fact 
that on judgment decisions different people may see things in dif- 
ferent ways. It is well known and fairly well documented that in 
administrative review there is a strong propensity of the courts to 
substitute their views for those of the agencies. Given this factor, 
the argument that there would be reversals and, therefore, is favor- 
able to veterans, extrapolated out, would justify almost repeated re- 
views by a procedural process to a point in which 100 percent of 
the claims could be granted. That would just be based on disagree- 
ments among reasonable people as to how they may view cases. 

The other problem in my mind, a greater problem with the argu- 
ment of this advantage, is that it misses the issue. The issue we 
must address, of necessity— and I believe it is an appropriate issue 
for Congress to address— is what is more beneficial to the veterans 
as a class or a group. If a reversal in an individual case is more 
favorable to a veteran, which, of course, it would be, you must ask 
would that reversal then cause or have an impact that would result 
in something being more unfavorable to more veterans. In stand- 
ard parlance, we have to be concerned with the greatest good for 
the greatest number. 

The disadvantages of judicial review are substantial. In a way, it 
is difficult to sit here and argue this position because, instead of 
arguing theory, I have to argue practice and, in my view, what 
would be the basic reality of what would in fact happen if judicial 
review were imposed upon the veterans adjudicatory process. 

I think there must be appreciated a substantial risk of a proce- 
dure and process that would require the formalization of adjudica- 
tion procedures and practices. It is not realistic and, in my opinion, 



41 

cannot reasonably be argued that an agency or an individual can 
be put in a defensive posture, required to defend its decisions, and 
not be affected and become defensive. Requiring to defend our posi- 
tions will provide incentives for stricter adherence to rules and 
greater documentation of cases against the veteran. This will force 
us to be adversarial or more adversarial. It will force us to formal- 
ize. 

I think it would be well to keep in mind that as a practical 
matter the court review would be review on a record which would 
require us to very carefully document and become very attuned at 
how to deny cases. 

Another issue that is not, in my opinion, paid much attention to 
is the effect of precedence. The U.S. district courts are courts of 
record that establish precedence. Although estimates have to be 
soft, we would estimate that the agency would prevail in 80 percent 
or more of the cases. In legal terms, what that would mean is 80 
percent or more of the precedence would be against the veteran. 

The other factor about precedence in which we have learned a 
lot from the Social Security Administration's experience is that, 
like the Social Security Administration, we are attempting to ad- 
minister a national body of law or national service rendered the 
country. Subjecting our claims process to the 94 district courts on 
an infrequent, basically uncontrollable review process, will result, 
and has resulted in other schemes, in inconsistent precedential de- 
cisions causing the basic legal rights of the veteran to vary from 
locale to locale. Consistency will not be very maintainable and will 
erode over time. 

Given this situation, it is simply our position, that given our 
process works well, works fair, and works efficiently, and given 
that there is substantial risk of adversely affecting veterans as a 
whole, there is no basis to take the risk and there is no basis to 
subject either the agency or our veterans to the uncertainty and 
possible adverse consequences. 

I would like to end this statement just with a comment that we 
are in a fairly difficult situation, because the arguments that we 
must meet are largely theoretical, and as alluded to earlier in one 
of the statements, can't help but have the feeling that we're ad- 
dressing a cure in search of an illness. 

Mr. Chairman, thank you very much. We would be pleased to 
answer any questions. 

[The statement of Mr. Murphy appears at p. 178.] 

Mr. Montgomery. Thank you, Mr. Murphy. We certainly know 
where you're coming from. Sometimes with witnesses we don't 
know which side they're on, but there is no question about you. I 
think it was very strong testimony. 

I would like to recognize Mr. Edwards. 

Mr. Edw^ards. Thank you, Mr. Chairman, and thank you, Mr. 
Murphy. 

Your testimony states in effect, that there is no illness, so we 
shouldn't enact a cure. Then why do you think the veteran organi- 
zations, and presumably even the American Legion will join the 
parade, are asking that this process be made a part of our law? 

Mr. Murphy. Well, first let me make a comment. I don't think 
that the veterans organizations as a whole are anywhere close to 



42 

unanimity. Even those who have gone the way of looking toward 
some form of judicial review have various degrees and differences 
in their positions as to what that review or form should take. 

More directly answering your question, I think there is a prob- 
lem that there is a tendency, quite understandable in my opinion, 
to view the problem as an individual veteran's case. If you view the 
case that way, then quite obviously the more reviews a veteran 
may have, the more chances he has to prevail. Looking at it that 
way, you would say or tend to feel "Well, this is good for veterans." 
The last part of my statement is actually where I have the prob- 
lems. The more accurate way is to say this might be good for "a 
veteran." Our problem is, we believe most firmly, that it would not 
be good for veterans in the plural. I think if an analysis was given 
as a veteran-wide issue, the service organizations may have greater 
difficulty. I think that is the issue identified by the American 
Legion, and properly so. 

Mr. Edwards. Mr. Murphy, do you have a problem with the cur- 
rent judicial review available for the Board for Correction of Mili- 
tary Records decisions? Those decisions through the BCMR admin- 
istrative process are reviewable. 

Mr. Murphy. In the Department of Defense you're referring to, 
Mr. Edwards? 
Mr. Edwards. Yes. 

Mr. Murphy. I would have to state, to be honest with you, that I 
am aware those are reviewable. I am not aware, and I don't have 
any expertise, as to the nuances and ins and outs of the correction 
process for reviewing military records. On that basis, I really can't 
answer you other than to say, to my knowledge, I don't have a 
problem — though my knowledge is limited. 
Mr. Edwards. Thank you. 

You apparently have some problems with the social security 
right of review, where up to perhaps 40 or 50 percent of the cases 
are reversed. Your testimony is that these reversals really 
shouldn't take place, I guess, but apparently do take place in the 
judicial system, because of what you describe as a strong inclina- 
tion to overturn decisions of administrative judges. 

Is that really your testimony, that courts have that sort of atti- 
tude? That sounds rather irresponsible, doesn't it? 

Mr. Murphy. The reversal rate is about 20 percent in the judici- 
ary. It's about 50 percent inside the administrative process. Do 
courts substitute their judgment? Yes. 

I believe we testified about this in the Senate. It is not a novel, 
legal understanding that scopes of review are not terribly meaning- 
ful beyond the more standardized or better known ones of prepon- 
derance of the evidence or beyond a reasonable doubt. They are 
largely semantic. Anybody, judges included, will have a propensity 
in reviewing a record to substitute their views for those of another 
decisionmaker. I think that is true if you reviewed decisions of 
mine, and it is true if I reviewed decisions you made. 

Mr. Edwards. Do you disapprove of judicial review in discrimina- 
tion cases, racial discrimination in employment matters? 
Mr. Murphy. No. 



43 

Mr. Edwards. Well, why wouldn't you approve the same kind of 
review that the Veterans' Administration gives these veterans' 
cases? 

Mr. Murphy. They are not at all similar cases. 

Mr. Edwards. Are you sajdng all veterans' cases are the same or 
similar? 

Mr. Murphy. No. I am saying veterans' cases are not at all racial 
discrimination cases. You can't equate them. 

Mr. Edwards. Don't you think veterans feel just as strongly that 
they have merit in what they claim as the people who feel they are 
discriminated against in employment for racial or sexual reasons? 

Mr. Murphy. I believe the veterans feel strongly about their 
claims, and I believe that the existing administrative process is fair 
and adequate and fully, even preferentially, extremely preferential- 
ly, gives the veterans a fair view of their claims. 

Mr. Edwards. Thank you, Mr. Murphy. 

Mr. Murphy. Thank you, Mr. Edwards. 

Mr. Montgomery. Mr. Sundquist. 

Mr. Sundquist. Thank you, Mr. Chairman. 

In reference to social security, in your testimony I see here a con- 
cern that one of the advantages of the system now is its informal- 
ity, that a veteran can do it essentially without any legal cost. 

Mr. Murphy. That's right. 

Mr. Sundquist. Is there a system in which it would be possible 
for a veteran to still adjudicate it without having the assistance of 
an attorney? You don't say that. 

Mr. Murphy. Our system now does that, as you have correctly 
mentioned. If you have court review, of course, because of the rules 
of unauthorized practice of law, only attorneys could go into court. 
So with judicial review, my answer would be no. 

Mr. Sundquist. One of the problems that I hear every week 
when I'm home in courthouse sessions from social security recipi- 
ents, is that only those who can afford legal counsel or who are 
wealthy can, in fact, proceed — not necessarily wealthy, but have 
some money — can proceed in the social security claims system. I 
think you make a good point in that regard, that we certainly don't 
want to get bogged down in a way that would make all our veter- 
ans dependent on having to have an attorney and, in fact, when 
there is a favorable ruling made, a portion of that money would 
then have to be paid to an attorney. But, on the other hand, I do 
hear frustration in terms of the process itself. 

Do you have any suggestions as to how, if you don't want to 
change the system, how we can make the system better? 

Mr. Murphy. In my view — and I will have to say this is mostly 
personal at this time — in my view, I think the way to make the 
system better is to basically insure that it has the adequate re- 
sources to do the job. 

We have pending before Congress, and it has been passed by the 
House of Representatives, a bill to expand the Board of Veterans' 
Appeals so that claims can be adjudicated or determined at the ap- 
pellate level faster and so that a growing backlog can be turned 
around and decreased. I think those are the shape of things that 
would improve our system now. I don't think it's a problem of proc- 



44 

ess or procedure in the system; it's a problem of adequate re- 
sources. 

Mr. SuNDQUiST. One last question, Mr. Murphy. 

You mentioned that precedence could be a dangerous problem in 
the legal system as it relates to veterans. Could it also not be help- 
ful? 

Mr. Murphy. Yes, it could. Precedent, however, cuts both 
ways 

Mr. SuNDQUiST. Well, you only mentioned one of the ways and I 
wanted to make sure that we understood it could also cut the other 
way. 

Mr. Murphy. Yes, I would agree with that. My point is, if you 
accept our estimate — which I concede it is difficult at this point in 
time to give with any degree of certainty — that we will prevail in 
80 percent of the cases, then I think it is obvious there is a much 
greater chance of adverse precedent than there is of favorable 
precedent. 

Mr. SuNDQUiST. Why would you want to prevail in 80 percent of 
the cases if you're not doing it now? 

Mr. Murphy. Well, in the judiciary this would be 80 percent of 
the cases on appeal. 

Mr. SuNDQUiST. But why would you want to do that if it's right? 

Mr. Murphy. Why would we want to? 

Mr. SuNDQUiST. Yes. 

Mr. Murphy. Because we would be arguing that it would be in 
accordance with the law. 

Mr. SuNDQUiST. But yet you're not really that way now, are you? 
I mean, 80 percent of the cases aren't turned down now, are they? 

Mr. Murphy. No. I don't know that. 

Miss Starbuck. If I may, Mr. Sundquist, in the appeal process, 
those cases that are granted by the Board as opposed to a decision 
that has been made in the regional office, is running only about 13 
percent — is that correct, Ken? 

Mr. Eaton. Yes, that's true. 

Miss Starbuck. So that the decisions that are made in our re- 
gional offices, which is the initial point of decision on a claim, are 
in fact upheld in excess of 80 percent of those cases that appear 
before the Board of Veterans' Appeals. 

Mr. Sundquist. Thank you. 

Thank you, Mr. Chairman. 

Mr. Montgomery. Before calling on Dr. Rowland, just for the 
record, so we will be clear in our minds, people have been using 
different percentages pertaining to this situation. 

Of the claims that are made at the local regional office level, 
what percentage is that, and then what gets up to the Board of Ap- 
peals, just so we can be sure we have the correct figures. Mr. 
Eaton? 

Mr. Eaton. Yes, sir, I believe I can answer that. Of all the claims 
filed in the regional offices, only about V-k percent of those claims 
are appealed. Now, that amounts to some 60,000 appeals all togeth- 
er. Some of them are sorted out for one reason or another. 

Now, out of that 60,000, with some withdrawn, some allowed, and 
so forth, at the regional office level, we at the Board of Veterans' 
Appeals will allow about 13 percent of those. Another 14 or 15 per- 



45 

cent will be remanded. After we remand a case and ask for further 
development, they may change their mind and allow 30 percent of 
those. So really, during the appellate process, 25 percent, approxi- 
mately, of all those 2 ¥2 percent of the claims are allowed during 
the appellate process. 

Mr. Montgomery. Even when it gets up to you, the 2y2 percent, 
which are all claims that have some problems that were turned 
down at the regional level, 25 percent of those that come to you are 
approved? 

Mr. Eaton. No, I guess that wouldn't be correct. I picked that 
2y2 percent out of the total number of claims filed. Many of those 
are allowed as well. I do not have a figure as to — you see, there are 
millions of claims filed every year, and there are 60,000 appeals, 
which is about 2y2 percent of the total claims filed, but not of those 
denied. I didn't want to mislead you there. 

It used to be like iy2 percent of appeals; now it's 2y2 percent. But 
it is about 60,000 notice of disagreements filed, and we will eventu- 
ally get about 40,000 at the Board. Between the regional office and 
ourselves, we will allow 25 percent of those cases all together. 

Mr. Montgomery. Miss Starbuck, what percentage of the claims 
that are filed are eventually approved? 

Miss Starbuck. Mr. Chairman, I would have to supply that for 
the record. I don't have those that are allowed as against those 
that are disallowed. But I will try to provide that for the record. 

[Subsequently, the Veterans' Administration furnished the fol- 
lowing information:] 

Mr. Chairman, we don't have any reports that would allow me to provide that 
information. Our computer system was designed primarily as a pajmient system 
rather than as a statistics-collecting system. It can give us some data on cases in 
which we are making pajmients and indirectly, through our end products, it can tell 
us how many Notices of Disagreements are received. However, after the initial 
claim, denials of benefits are not made input nor, unless they affect the amount of 
the pajrment, are grants of benefits. It would take a manual review of millions of 
claims folders to develop what percentage of claims filed are eventually approved. 

Mr. Montgomery. Dr. Rowland. 

Dr. Rowland. Thank you, Mr. Chairman. 

Let me be sure I understand what Mr. Eaton said. Are 25 per- 
cent of the 2y2-percent reversed? 

Mr. Eaton. Right, at one stage or another of the appellate proc- 
ess. 

Dr. Rowland. Are changed from what the Veterans' Appeal 
Board did? 

Miss Starbuck. It might be helpful — When a case goes to the 
Board of Veterans' Appeals and they review it and feel that it 
needs perhaps to have further development at the local level, they 
will go through a process called remand. They will send it back to 
the regional office and say, "Please have this veteran examined for 
a specific purpose; please see if you can get from some source other 
evidentiary documents which would be helpful in the decision proc- 
ess." Those are the 14 or 15 percent that the Board sends back to 
the regional offices. 

In the regional office following development of additional evi- 
dence, or the collection of additional information, the regional 
office itself will make a favorable decision to the veteran. For those 



25-550 0—83 4 



46 

cases on which the Board of Veterans' Appeals makes a decision on 
the basis of the record that it has, and without any further devel- 
opment, that allowance rate is about 13 percent. Of those that go 
back to the regional office for further development by remand, 
there is an allowance rate at the regional office level that would 
total up to the 25 percent while a case is in the appellate process. 

Dr. Rowland. Thank you. 

Mr. Murphy, do you know of any group in our society that does 
not have the prerogative to appeal to the Federal courts, other 
than veterans? I had asked the question once before as to whether 
or not people in active military service had the right of appeal to 
the Federal courts and I have since been told that they do have the 
right of appeal. Even in a court-martial, they can appeal to civilian 
courts to overturn the court-martial decision. 

Is there any group, other than veterans, that does not have the 
prerogative to appeal to the Federal courts? 

Mr. Murphy. There are other statutes that preclude judicial 
review. Some of them are listed in my testimony. One of them is 
the Federal Employees Compensation Review. 

The military appeals, I might mention, are to a Court of Military 
Appeals. 

Dr. Rowland. I beg your pardon. To what? 

Mr. Murphy. A Court of Military Appeals. 

Dr. Rowland. Then people in the military do not have the pre- 
rogative to appeal outside of the military? 

Mr. Murphy. To be honest with you, it depends on the issue. But 
in situations they have the prerogative to appeal to a Court of Mili- 
tary Appeals but not to a U.S. district court. 

Dr. Rowland. Well, in that respect, then, would the establish- 
ment of a special Court of Veterans Appeals satisfy some or all of 
the objections of the VA to Federal court review? 

Mr. Murphy. One of my major concerns would be satisfied, to be 
honest with you, and that would be the risk of inconsistent prece- 
dent, because you would, by definition, in that situation have a 
single centralized body that presumably — and I am sure it could be 
organized so that it would maintain an acceptable degree of con- 
sistency. 

In that context I would like to mention, however, that that is ba- 
sically what we have now. 

Dr. Rowland. I was speaking about beyond the Veterans' Appeal 
Board. 

Mr. Murphy. Well, my problem with that is that, given that is 
essentially what we have now, it is just a layer, just more review. 

Dr. Rowland. You mentioned earlier that veterans enjoy some 
rights and privileges that other citizens do not enjoy now. Could 
you expand on that a little? 

Mr. Murphy. My comment was made in the context of the proce- 
dure and process that we use. I think you would have to search 
long and hard to find a procedure, if there is one an3rwhere — and 
I'm not aware of it — that is so directed toward the granting of 
claims. With the benefit of a doubt, our mission being to give every 
veteran every right they are entitled to by law, basically a mini- 
mum of three — and in the remand situation discussed earlier, four 



47 

or more — internal reviews, it is a very, very favorable system, very 
much directed towards the granting of claims. 

Dr. Rowland. Thank you, Mr. Chairman. 

Thank you, Mr. Murphy. 

Mr. Montgomery. Thank you. 

Mr. Evans. 

Mr. Evans. Thank you, Mr. Chairman. 

You are indicating that allowing judicial review of VA decisions 
is going to create the prospect of inconsistent determinations by 94 
district courts around the country. But in view of the fact that 94 
district courts already regularly decide cases involving Board for 
Correction of Military Records decisions and military disability re- 
tirement, why should Congress be concerned with the prospect of 
inconsistent decisions on VA disability claims? 

Mr. Murphy. Well, for two reasons. One is, in the cases you're 
referring to, we're talking about an extremely small number of de- 
cisions, so that inconsistency of precedent has a minimal impact. 

In our situation, with a larger number of cases, particularly over 
time, the inconsistencies will be inconsistencies of precedent which 
will cause an alteration or variation from geography to geogra- 
phy — basically the territorial jurisdiction of the district courts — as 
to what a veteran's rights are. Quite literally, it is not only possi- 
ble, it is likely that we will have a situation of an entitlement that 
exists in Los Angeles, Calif., that does not in Chicago, 111. 

Mr. Evans. Are you aware of any significant inconsistencies in 
court decisions on military disability retirement? 

Mr. Murphy. No. I am aware of quite a few in social security, 
which is much more analogous to our situation. 

Mr. Evans. But specifically on military disability retirement, you 
don't have any? 

Mr. Murphy. I don't have that information so I, quite honestly, 
couldn't directly answer your question. 

Mr. Evans. I would like to bring up a specific concern addressed 
in the statement submitted by the Vietnam Veterans of America. 
They refer in their statement to the court case of a veteran named 
Norman Elmore Cooper. Mr. Cooper, 2 years after discharge from 
the Navy, appled for service-connected disability benefits and was 
rated as 20 percent disabled. Mr. Cooper was dissatisfied with the 
20-percent rating and hired a lawyer, who applied to the Board for 
Correction of Military Records for disability benefits which are ad- 
ministered by the military departments. 

The Correction Board used the VA schedule for rating disabil- 
ities, which is used in military disability decisions, and determined, 
as the VA had determined, that Mr. Cooper was 20 percent dis- 
abled. 

But because there was court review of Correction Board deci- 
sions, Mr. Cooper went to court and the court ruled that the 
Board's 20 percent rating was arbitrary and capricious and ordered 
that the veteran be classified as 40 percent disabled. 

So my question is, Mr. Murphy, why should the average veteran 
be precluded from going to court on a VA decision when veterans 
like Mr. Cooper, who are able to hire attorneys and get court re- 
views, simply by appljdng to the Correction Board? You keep 
sajdng that, as a whole, veterans are well served. We have one ex- 



48 

ample of a veteran's disability rating being increased by 20 per- 
cent. 

Now, what bothers me about this as a whole is that you are ne- 
glecting examples such as this in which individuals are not well 
served unless they have judicial review. You add these individuals 
up over a period of time and it creates a bad image for the VA; 
that they are not treating at least a minority of the veterans. 

Mr. Murphy. Well, I would have to disagree with the analysis of 
the case. First of all, the issue in the case was not a veteran's dis- 
ability determination. It was not a VA decision. The issue in the 
case was a separate legal process which exists in the Department of 
Defense concerning when an individual is eligible for retirement 
disability from the military. Thirty percent under that law, by the 
way, is a magic disability rating. It makes a determination between 
eligibility for permanent disability retired pay and for temporary 
severance pay. 

The Secretary of the Navy in that case rated Mr. Cooper at 20 
percent after an involved internal process. In that process, the mili- 
tary is directed by their law to apply our rating schedule. However, 
those are not veterans compensation determinations. They do use 
our rating schedule. That would be no different than if their law 
directed them to apply the workers' compensation ratings schedule 
of any given State. 

The Veterans' Administration's rating in that case, because the 
individual, Mr. Cooper, applied for both, was 20 percent service 
connected for an ulcer condition and nonservice connected for an 
emotional or psychiatric condition, the second being on the basis 
that it was not incurred or aggravated in service. That is a veter- 
ans' issue and a veterans' claim issue. That is not a retirement dis- 
ability issue. 

What the court indicated— the Court of Claims, by the way— in 
making a determination concerning Mr. Cooper's disability, which 
did not involve the incurred or aggravated in-service legal require- 
ment, the Navy's 20 percent rating was too low. It really doesn't 
involve veterans' claims. You can go for a disability retirement in 
the Defense Department and they can rate you and we can rate 
you higher or lower, or we can say it was not incurred in service. 

Mr. Evans. The principle of this case is; had he been relegated to 
having an administrative board make its decision, without judicial 
review, Mr. Cooper would still have 20 percent. Would he not? 

Mr. Murphy. Yes. 

Mr. Evans. So with judicial review he is able to up his 

Mr. Murphy. He may still have 20 percent from the military. 

Mr. Evans. My point is that he would never have gotten 40 per- 
cent disability rating had it not been for judicial review; is that cor- 
rect? 

Mr. Murphy. That's true. It is not our position 

Mr. Evans. Not that the facts may differ between this particular 
case and the average veteran's case going through the Board of 
Veterans' Appeals, but the fact is that judicial review, for whatever 
reasons, allowed him to get a higher rating. And if there was a de- 
cision made in BVA that other veterans had this right as well, 
maybe they would not have the same factual basis for overcoming 



49 

this decision. If there was a misappUcation of precedent or VA rul- 
ings, they would have the same kind of remedy available. 

Mr. Murphy. It is not our position that perfect, unquestioned jus- 
tice is arrived at in every VA decision. I would mention that it is 
entirely possible that it is assured to happen, that if you have judi- 
cial review a case like Mr. Cooper's can be affirmed by the courts. 
It would be very often affirmed by the courts because of the differ- 
ences in judgment. 

Mr. Evans. Right. 

Mr. Murphy. If that can happen in the courts, then your argu- 
ment is an excellent argument for having the district courts again 
reviewed by another district court. We can go on and on. I am just 
trying to get across the message that perfect justice has its price, 
and its price is to the whole. 

Mr. Evans. My time has expired, Mr. Chairman. 

Mr. Montgomery. Thank you. 

Mr. Hillis. 

Mr. Hillis. Thank you, Mr. Chairman. 

I just have a couple of questions, because you have touched on 
many of the points that I wish to ask you about. It is sometimes 
argued that the Board of Veterans' Appeals makes errors in judg- 
ment and decisions. Assuming this to be a fact, is it not also true 
that court decisions are sometimes inconsistent and it is only when 
the Supreme Court has spoken that these decisions are clarified 
and that, even then, are often decided on narrow points of law, 
leaving other matters or some matters open to dispute? 

Mr. Murphy. That is absolutely correct, Mr. Hillis. As a matter 
of fact, I would just mention as an aside on that that the appellate 
courts basically do not review factual decisions in the trial courts. 
They review for consistency and precedential law. 

Mr. Hillis. The House passed a bill authorizing an increase in 
the membership of the Board of Veterans' Appeals. The adminis- 
tration endorsed the bill and, in fact, funds for its implementation 
are in the VA budget. The other body took an action which ties 
this increase in Board size to the passage of legislation concerning 
judicial review. 

How do you view the Senate action, and do you believe that 
these two issues ought to be tied together? 

Mr. Murphy. I view the Senate action, quite frankly, as very un- 
fortunate. I don't believe the two issues should be tied together. 
They are quite separate issues, although the existence of judicial 
review obviously directly would impact the Board of Veterans' Ap- 
peals. 

When, as the Senate has done, they basically replace a House 
bill with an amendment that consists of an entire Senate bill, they 
are, in my view, attempting to use procedures of the Congress to 
hook the merits of one issue to the merits of another issue, hopeful- 
ly to get it passed. In addition, I would mention that the request of 
the Veterans' Administration for the expansion of the Board of 
Veterans' Appeals is on the assumption that there is not judicial 
review. If there is judicial review, then even with that expansion 
the Board of Veterans' Appeals backlogs will continue to grow and 
we will basically have gone back to square one. 



50 

Mr. HiLLis. Let me ask you this question: Do you think such mat- 
ters as rules of evidence, future adversary relationship, the possi- 
bility of reversals by courts, will cause rating boards at regional of- 
fices or sections of the Board of Veterans' Appeals to be more liber- 
al or more conservative in their decisions? What effect would it 
have on their decisions? 

Miss Starbuck. It would be my impression, Mr. Hillis, that it 
would perhaps put a precautionary cloud over their actions, that 
they would not become more liberal. I think the liberality that is 
presently displayed in our rating boards is sufficient to the time, 
but with the understanding that the decision they are making is 
one which must, in fact, have the ability to stand up in court, or 
there would be a very cautious approach to that. 

Mr. Hillis. As a corollary to what you're saying, do you believe 
it would slow down the process and would they have to spend more 
time on each matter? 

Miss Starbuck. I would be of the opinion that it would, Mr. 
Hillis, yes. 

Mr. Murphy. Mr. Hillis, if I could just add a comment, when you 
look at administrative review by the courts, one of the things you 
very often see is a remand. Since these are reviews on the record, 
what the remand almost always consists of is sending it back to the 
agency for further documentation. That process, over time, causes 
some people who have to be subject to it to become very adept at 
documentation. 

Mr. Hillis. Do you feel there is any merit to the idea of judicial 
review on the sole question of service connection of a disability, 
thus leaving solely to the VA such questions as percentage of dis- 
ability, permanent and total disability, or unemployability? 

Miss Starbuck. I would see no merit with that narrow finding. 
In the determination of whether a disability is service connected or 
not, we must adhere very strictly to the belief that the disability 
shown today by a veteran does, in fact, relate in a point of time 
back to a point of active military service. That is really a rather 
simple decision of relationship to be made. 

Mr. Hillis. Thank you. 

That's all the questions I have, Mr. Chairman. 

Dr. Rowland. Mr. Chairman. 

Mr. Montgomery. Yes, Dr. Rowland. 

Dr. Rowland. May I ask one additional question? 

Mr. Montgomery. Surely. 

Dr. Rowland. I had asked the question earlier about military 
personnel and the right to appeal in court-martials, and I believe 
you said in some instances you can and in some instances you 
can't. 

Mr. Murphy. No. What I meant to say, it would depend— as I un- 
derstood your question, you were asking about defense issues and 
the access to the district courts, or at least that's how I understood 

it. , . 

What my response was is that it really depends on the issues. 
Some issues are appealable, as I understand it, to the Court of Mili- 
tary Appeals, and some issues are appealable to the Federal U.S. 
district courts. 



51 

Dr. Rowland. I have been given a list of things that precluded 
judicial review here, and among those I did not find that. Then I 
was informed that the Supreme Court has held that service mem- 
bers may challenge a conviction after resort to the Court of Mili- 
tary Appeals, and the same is true for almost all other military 
personnel decisions once they have been presented to the Board for 
Correction of Military Records. The scope of review is now just like 
in the bills proposing judicial review for the VA. 

So, I interpret this to mean that in almost all instances they do 
have the prerogative to appeal their cases to the Federal judiciary. 

Mr. Murphy. To be honest with you, sir, I don't have enough 
knowledge of that body of law to really address it. 

Dr. Rowland. Well, the reason for my asking this question is, if 
those people in active military service have the prerogative for 
Federal appeals, why do not veterans also have that prerogative? 
That is my question. 

Mr. Murphy. I am not here to question the propriety of judicial 
review in the Department of Defense context. I don't have the 
knowledge, like I have stated, to do that. But I think you have to 
look at whether that is beneficial to the group impacted as a whole 
in the Veterans' Administration. For compensation and claims pur- 
poses, I would have to say it would not be. You know, whether 
court review exists in another discrete context I don't think is par- 
ticularly helpful to resolving what is more beneficial to veterans. 

Dr. Rowland. Assuming that 

Mr. Montgomery. Go ahead. Mr. Penny has been here, but you 
can go ahead. 

Dr. Rowland. Let me yield to Mr. Penny, then. 

Mr. Montgomery. OK. Mr. Penny. 

Mr. Penny. In some respects I think Mr. Murphy and I are 
trying to get at the same issue of last resort for veterans who do 
have an appealable issue. My concern deals with the interpretation 
of the law. If an interpretation is necessary, the BVA refers that 
question to you, the General Counsel, and then you give an inter- 
pretation of law for that case on appeal, isn't that correct? 

Mr. Murphy. That's correct. 

Mr. Penny. Would it be fair to say that that then becomes the 
law of the case? 

Mr. Murphy. I believe that's accurate. 

Mr. Penny. That would make the counsel for BVA the determin- 
er of the law. How, then, does a veteran proceed if he disputes that 
interpretation of the law? Is there any recourse? 

Mr. Murphy. The recourse is the Congress. 

Mr. Penny. Directly to the Congress? 

Mr. Murphy. That's right. 

Mr. Penny. It is not then one of those instances where a veteran 
can take it into the court system? There are some limited circum- 
stances where the veteran could take a case beyond the BVA to the 
courts, but this would not be one of those 

Mr. Murphy. Well, if we're talking of an issue of broad applica- 
bility, basically a ruling that will govern or determine a whole 
class of cases — a number of circuits have clearly held that that's 
reviewable, as are all constitutional issues. 



52 

Mr. Penny. But if it were argued that this is an interpretation of 
law appUcable only to that particular case, then the veteran would 
not have that recourse of appeal to the courts? 

Mr. Murphy. I think that 

Mr. Penny. The veteran, in other words, would have to demon- 
strate that it had broader applicability than just his own case? 
Mr. Murphy. That's right. 
Mr. Penny. Thank you. 

Mr. Montgomery. The Chair would recognize Dr. Rowland 
again, and then I would like to ask a question or two. Then the 
Chair will recognize Mr. Daschle. 
Dr. Rowland. Thank you, Mr. Chairman. 

I have difficulty understanding why— and I assume this informa- 
tion I have received is correct — that someone on active military 
duty would have the right of appeal in the Federal courts, but 
someone who has completed his active military service does not 
have that right of appeal. I have a problem in my mind with that 
concept, if that concept is correct. 
Mr. Murphy. With court-martial? 

Dr. Rowland. Yes, with a court-martial, why the person who is 
on active military duty has the prerogative to appeal a court-mar- 
tial conviction, but a veteran who has completed his niilitary serv- 
ice does not have the right of appeal for a disability claim. 

Mr. Murphy. A court-martial conviction is a criminal proceeding. 
It can be felonious. We're talking about basically the fundamental 
distinction between criminal and civil law. A veteran's claim is a 
claim for benefits. We're not talking about a stigmatation or depri- 
vation of liberty in the constitutional sense. 

Dr. Rowland. We are talking about, however, the rights of indi- 
viduals, whether it's criminal or civil. 

Mr. Murphy. We can talk about the rights of individuals sepa- 
rate from the factual context at issue. The rights of individuals for 
a criminal proceeding leading to possible incarceration are not 
identical to the rights of individuals, say, in a civil lawsuit involv- 
ing a car accident. You have to have those in context is my point. 
Dr. Rowland. I understand that. You see, this is where our per- 
ception is different, because you look at it from the perception of 
an attorney and I look at it from the perception of practicality, a 
practical matter. I am not an attorney and I don't look at it from 
that perspective. I look at it from the rights of the individual. We 
could sit here and go back and forth with this for a long time. 
Thank you very much, Mr. Chairman. 
Mr. Montgomery. Thank you. Doctor. 

Let me ask a question or two and then recognize Mr. Daschle. 
Like everyone else on the committee here, I am trying to find the 
best way to help the veteran on their claims when they are imple- 
mented back in the States and regional offices, but I do have some 
problems with the situation in that we are talking about adding 
another layer— and I think that was mentioned by one of the veter- 
ans' organizations— adding another layer on to the process. I am 
wondering, if you add another layer by judicial review, why don t 
we just eliminate the Veterans Board of Appeals and maybe we 
could speed up the process. 



53 

What would be the position of the Veterans' Administration on 
that? 

Mr. Murphy. That's a difficult one for me to address, Mr. Chair- 
man. I will make some general remarks, but I really couldn't sit 
here and give either the administration, the Veterans' Administra- 
tion, or a personal view that I would feel comfortable with, without 
some more hard thinking. 

I would say it would be very hard to refute an argument in the 
future, that if you have judicial review, what is the Board of Veter- 
ans' Appeals here for. We are talking about review and finality of 
decisionmaking. 

The courts, whatever else can be said about them, can certainly 
provide finality of decisionmaking under the existing law. Beyond 
that, I would be greatly concerned as to our ability to defend the 
existing organizational elements of the agency in the face of more 
layers of review. 

Mr. Montgomery. Well, of course, if you would eliminate the 
Board of Appeals, it would, in effect, take the veterans organiza- 
tions out of helping the veteran, as well as the service officers. I 
think the veterans organizations would have to address that ques- 
tion. 

Mr. Murphy. It would make it much more truly adversarial and 
a more direct litigative situation. 

Mr. Montgomery. It would speed up the process, though, 
wouldn't it? 

Mr. Murphy. Oh, it would make it quick. 

Mr. Montgomery. That's another concern that I have about 
having judicial review, in that it will lengthen the time of process- 
ing a claim and even payment of the claim, which I wish we could 
improve. In the Veterans' Administration we used to be able to say 
that we could take some action on these claims within a year's 
time, where the social security system was taking almost 2 years, 
2V2 years. 

What about the time element pertaining to judicial review with 
what we're doing with claims now and the processing? 

Mr. Murphy. It would be difficult to estimate the amount of time 
that would be added to the resolution of a claim. Of course, it 
would depend on each case. 

I want to mention I know the argument is made that time is an 
irrelevant consideration because the veteran has already had his 
claim denied, so he has got nothing to lose in court. I think that 
overlooks the fact that courts, under virtually anybody's version of 
judicial review, would have a remand authority. As referred to in 
some of the testimony, there is a good chance of an extended tennis 
game between the courts and the agencies. It would add time. How 
much time is difficult to estimate. 

Mr. Montgomery. Mr. Eaton, when you gave us a briefing the 
other day we asked you this question and you were going to get us 
some information on it. 

Mr. Eaton. Yes, sir; we do have some information about social 
security now as well as the Board of Veterans' Appeals.^ You're 
asking about social security? 

• See p. 201. 



54 

Mr. Montgomery. Well, you can compare them, yes. 

Mr. Eaton. Yes, sir. Right now, from the time a person first files 
his notice of disagreement until we reach a final Board of Veter- 
ans' Appeals decision, the total appellate processing averages ap- 
proximately 16 months. 

Now, in social security, they do have quite a long waiting period 
from the time of a request for a hearing before an administrative 
law judge. The information I have is they do have to wait 185 days. 
That's 6 months for that process right there. Then, after that, 
there is a process of appeals counsel. We do not have the exact fig- 
ures for that, but there is at least another 100 days. Then, after 
that, there are the various stages in the appellate courts. It de- 
pends on how you're adding all that up. This is an apples and 
oranges situation. But if you add it all up, the overall time I be- 
lieve is still longer for social security than it is for the Board of 
Veterans' Appeals. 

Unfortunately, we have lost a good deal of our time in the last 4 
or 5 years. We have gone up from 10 months to 16 months, so we 
are rapidly catching up with social security you might say. 

Mr. Montgomery. Mr. Daschle. 

Mr. Daschle. Thank you, Mr. Chairman. 

Mr. Murphy, you're the General Counsel of the Veterans' Ad- 
ministration? 

Mr. Murphy. Yes, sir. 

Mr. Daschle. I assume you're a veteran. When did you serve? 

Mr. Murphy. I am not a veteran. 

Mr. Daschle. You're not a veteran? 

Mr. Murphy. No. 

Mr. Daschle. You have never served in the military? 

Mr. Murphy. That's right. 

Mr. Daschle. And you're the General Counsel of the Veterans' 
Administration? 

Mr. Murphy. Yes. 

Mr. Daschle. Have we ever had a situation whereby we have 
had a General Counsel who is not a veteran? 

Mr. Murphy. I don't know. 

Mr. Daschle. That's incredible. 

Mr. Murphy. Why? 

Mr. Montgomery. I don't get the point, either, Mr. Daschle. We 
have members who serve on this committee that are not veterans. I 
think Mr. Murphy has been one of our outstanding Government 
employees. I know you don't mean any reflection on him, but I 
don't 

Mr. Daschle. I would sure hope that the VA, of all organiza- 
tions, would give veterans preference. I could give you a list of 
maybe 30 or 40 veterans who would make darned good General 
Counsels who have served. 

The only reason I asked 

Mr. Montgomery. Mr. Daschle, we're putting nonveterans in 
these positions. My veterans' hospital administrator in Mississippi 
is a nonveteran and he's doing a heck of a fine job. 

Mr. Daschle. Well, how can we 

Mr. Montgomery. I would hate to go back to have to be a veter- 
an now to serve in some of these positions. 

/ 



55 

Mr. Daschle. Well, I would hope that we practice what we 
preach. We say veterans' preference is important, and then when 
we're looking for qualified personnel, whether it's in the VA or 
whether it's in Congress, that we make it a very high priority to 
hire veterans. 

We have had I don't know how many hearings, untold hearings, 
about the need to hire veterans. We had the SBA here just grilling 
them a couple of weeks ago, asking them why they haven't hired 
more veterans. Now we've got the General Counsel of the Veter- 
ans' Administration before us who tells us he has never served. 

Miss Starbuck. Mr. Daschle, if I may 

Mr. Daschle. Let me just finish. Let me proceed with the ques- 
tion and then, Dorothy, I would be happy to yield. 

Dr. Rowland made an interesting point. It is what led me to ask 
the question. He said, "Try to assume for the moment you are a 
veteran, and try then, from a perspective of a veteran, to put your- 
self in his situation. He justifiedly believes that he has compensa- 
tion of some kind to be awarded, that he has a legitimate claim for 
benefits." 

Now, he goes to the Veterans' Administration — and in a sense, it 
is an adversarial position. There is nothing wrong with that. We 
shouldn't be afraid of the word "adversarial." He's in an adversar- 
ial position because the VA is telling him that he is not eligible. 

Well, if I were that veteran, I would genuinely believe that it is 
the Veterans' Administration which is not only putting itself in the 
position of being a defendant, but also the judge. He is going to the 
Veterans' Administration seeking some compensation, as he would 
in a court of law. It is the Veterans' Administration whose jurisdic- 
tion here is being challenged. There is no question, it seems to me, 
that in that kind of a role the Veterans' Administration, which 
stands to gain by saying "no, you cannot have that," in the sense 
that they aren't paying out compensation, is also the judge. I think 
we have to look at it from that perspective as well. It is not just a 
legal process here. It is a process in which fairness is clearly at 
stake. 

I think, from a veteran's point of view, it is easy to see why they 
would be very, very concerned about not having that last step. 
Sure, it's another layer, but that doesn't undermine the opportuni- 
ty up until that time for the veteran to fully utilize and avail him- 
self of the process that currently exists. But I am troubled by that. 

In a brief time if you wish to respond, Dorothy, go ahead. 

Miss Starbuck. Well, first of all, Mr. Daschle, I am very sorry 
that you felt constrained to comment about the General Counsel 
not being a veteran. I have to tell you that there are many, many 
people in our regional offices who are making decisions daily with 
respect to veterans' claims who are not veterans. 

Mr. Daschle. Well, that's appalling. 

Miss Starbuck. Well, it is not appalling to me because these 
people in the regional offices are doing a job for veterans that is 
incomparable. To think that it takes a veteran to make a decent 
decision is, I think, a fallacy. 

Mr. Daschle. It doesn't take a veteran — I'm not arguing that at 
all. I know there are very qualified people. What we are saying is, 
when we have veterans who are looking for work, when we know 



56 

that veterans can do a good job, when we know that they have 
every reason to believe that there ought to be veterans within the 
Veterans' Administration who are making these decisions, and 
then we find there is a sizeable percentage, including the General 
Counsel, who aren't even veterans, then I think it undermines the 
VA's credibility and it certainly flies in the face of everything that 
we say on the Veterans' Affairs Committee with regard to the need 
for veterans' preference. 

Miss Starbuck. That is a perception that I think is not widely 
shared. 

Mr. Daschle. I disagree strongly. 

Mr. Murphy. Let me address what I think may have been a 
question in all that. 

You postulate a veteran coming to the VA and you have difficul- 
ty that he comes to the VA because we're set up as judge. I would 
have to ask you in return, where do you want him to go, to another 
agency? 

Mr. Daschle. I want him to go to the courts. If they can't resolve 
it 

Mr. Murphy. In the first instance? 

Mr. Daschle. If you'll let me answer, Mr. Murphy, no; not in the 
first instance. I just said I think he needs to go through the proc- 
ess. Obviously, if they can work it out, as they do, between a plain- 
tiff and defendant initially, if you can work it out outside of court 
and resolve your differences, so be it. Do that and use the process. 
But, if it can be shown — and a veteran knows in many cases. Obvi- 
ously if he doesn't know and he elects to use the full process, that 
ought to be his right. 

I would only add one more point, that we go in the military 
system beyond simply criminal procedures. I am told that disability 
compensation programs for decades have been used by high-rank- 
ing officers and high-ranking enlisted people. They have that 
access. We can document case after case, hundreds of cases, within 
the active military system whereby these officers and high-ranking 
enlisted people have gone to the court system, and I think you 
know that. So we have created a double standard: An opportunity 
for a military officer to use a court of law, but then, as soon as he 
retires to prohibit that access, I think that is really a questionable 
practice. I would hope the Federal Government could resolve that 
in favor of the veteran. 

Mr. Lukey. Mr. Daschle, we have some data here about the 
number of military cases filed in the Court of Claims. There really 
seems to be a very small number of these cases and that's why we 
haven't done a great study. We have made our comparison over the 
years with the social security disability system, which we still 
maintain is the most comparable system to our own. 

There are now 208 military pay cases pending before the Court 
of Claims, a relatively small number, of which only a relative few, 
without a number, unfortunately, involve disability issues and the 

retirement svstem 

Mr. Daschle. Mr. Lukey, that's not the point. It doesn't make 
any difference whether it's 1 or 500. The fact is it's being done and 
the precedent is there. The opportunity to avail yourself of a court 
of law is there. You can't deny that, once having established that 



57 

precedent, it is hard to turn around and say, "Well, that precedent 
isn't there for a veteran" who simply has retired. That's the point, 
I think. 

Mr. Murphy. No; the point we're trying to make, Mr. Daschle, is 
that a precedent in another area is a precedent for that area and 
not necessarily this one. Your argument would extend all existing 
laws to everything, regardless of their propriety. 

Mr. Edwards [presiding]. The time of the gentleman has expired. 

Mr. Sundquist. 

Mr. Sundquist. Thank you, Mr. Chairman. I had a couple of 
points I wanted to make, and then I wanted to ask Mr. Daschle a 
question. 

I think the problem that I face in listening to alternatives to the 
present system is that the claims are taking too long to process, 
that the VA ought to do everything they can to get back to the 10 
months, and perhaps the pressure won't be there then, as opposed 
to accepting it. I would vote for additional money to speed this 
process up, but I think it takes a goal of doing it within the VA to 
get it done. I think, with the computers and everything, there are 
ways of doing it. 

It appears to me by my experience that veterans are discouraged 
from reopening their claims, and I think that's a problem. But — I 
wanted to make sure Mr. Daschle was here when I made a com- 
ment, but I guess he's leaving. But I would suggest to you that that 
would be the appropriate movement within the Veterans' Adminis- 
tration. 

I wish Mr. Daschle was here because I wanted to bring up the 
point that all members of this committee are not veterans, so how 
can we be critical of the General Counsel of the Veterans' Adminis- 
tration. As a matter of fact, just today I talked about the need for 
giving veterans' benefits back in TVA and some National Parks 
perhaps where we're not doing that. I don't think it is a fair criti- 
cism of you, Mr. Murphy, and I want you to know that at least I 
don't share Mr. Daschle's feeling that you should be disqualified 
when, in fact, members of this committee have not been disquali- 
fied from serving on this committee simply because — and I'm a vet- 
eran — simply because some of us are not veterans. I think we have 
had a chairman of this committee who has not been a veteran in 
the past. So I think that is an unfair criticism of you and I would 
like to make that point. 

Thank you. 

Mr. Murphy. Thank you, Mr. Sundquist. 

Mr. Edwards. The gentleman from Texas, Mr. Hall. 

Mr. Hall. I have no questions at this time, Mr. Chairman. 

Mr. Edwards. Counsel. 

Mr. Shultz. Mr. Murphy, I have just one question. 

Don't complex cases such as those involving agent orange, radi- 
ation, and/or post traumatic stress really justify judicial resolu- 
tion? 

Mr. Murphy. No; as a matter of fact, I would think they may be 
some of the most poorly suited cases for judicial resolution. The 
issues in matters such as agent orange is an extremely complex 
medical issue, of which a court would resolve in a trial — which 
wouldn't occur under this judicial review — by the presentation of 



58 

one or two, three or four, however many, but the point being an 
extremely hmited number of medical expert witnesses that may or 
may not, depending almost on the ability of one litigant or the 
other to acquire resources reflect accurate medical and scientific 
information. 

The problem the VA is addressing, and the Congress and the 
country is addressing in agent orange is literally nationwide. Is 
there a relationship between exposure to a phenoxy herbicide and 
a given disability? A ruling by a court on specific facts, particularly 
on a documentary record, would not only not be beneficial in re- 
solving that issue, but it could be very damaging. 

Mr. Edwards. We thank Mr. Murphy and his colleagues for their 
very helpful testimony. 

Mr. Murphy. Thank you. 

Mr. Edwards. Our next witness is Loren A. Smith, who is Chair- 
man of the Administrative Conference of the United States. Mr. 
Smith is accompanied by Richard K. Berg, General Counsel. 

STATEMENT OF LOREN A. SMITH, CHAIRMAN, ADMINISTRATIVE 
CONFERENCE OF THE UNITED STATES, ACCOMPANIED BY 
RICHARD K. BERG, GENERAL COUNSEL 

Mr. Smith. Mr. Chairman, thank you very much for this opportu- 
nity to appear before the Veterans' Affairs Committee. Let me in- 
troduce, as you noted, the General Counsel of the Administrative 
Conference, Richard Berg, sitting to my left. 

The Administrative Conference is a small, independent Federal 
agency whose mission is to help make the administrative process 
more fair and more efficient. We are really not substantive experts 
on the workings of Federal agencies. Our expertise is in procedure. 

This matter was considered by the Administrative Conference, 
which is made up of 91 members. Fifty of those members represent 
various Government agencies, including the Veterans' Administra- 
tion, and 40 members of the Administrative Conference are chosen 
from the public, including law professors and members of public in- 
terest groups, business attorneys and practitioners of administra- 
tive law. The Chairman is the only full-time member of the Confer- 
ence and I am appointed by the President. 

The Conference, 5 years ago, before I was Chairman considered 
this matter. I must say I come here with a note of frustration or 
fear that my lack of anything definitive to say will produce some 
frustration in the committee for having asked the Conference to 
come here. The Conference proposed a recommendation that went 
through its committee process, urging that judicial review be grant- 
ed in veterans appeals cases. The Conference debated this issue in 
December 1978 and rejected that recommendation by tabling it. So 
the Administrative Conference took no stand on the issue and I 
must say, as the Chairman of the Conference, any comments I 
make are made personally. 

I would also note that I have reviewed the proposed recommen- 
dation and the transcript of the debate that the Conference held, 
and from that material it seemed to me that there was a funda- 
mental split on the part of the members of the Conference with a 
consensus being that there was really no problem that needed solu- 



59 

tion, or at least there was no problem needing solution that had 
been clearly presented to the Administrative Conference. 

On the other side of the Conference, the minority view was that 
really there were no strong facts to justify a major problem need- 
ing a solution, but that the presumption and burden of proof 
should be in favor of judicial review, and there also having been 
submitted no evidence that judicial review would create major ob- 
stacles to the administration of veterans programs by the Veterans' 
Administration, that judicial review should be the norm and should 
be adopted. 

Just to summarize my remarks, let me note that there seem to 
be four reasons that have been suggested against judicial review 
that came up as a result of the debate before the Administrative 
Conference, and three that seemed to favor judicial review. 

On the "con" side, there was the view that there was no problem 
and this was a solution in search of a problem; second was the com- 
ment that judicial review would formalize veterans' decisions and 
this would be adverse to the effective working of the system and 
would produce the kind of delays that are seen as a problem; third, 
that this would be a cost that would be imposed upon the system, 
since judicial time is not a free good, and that there would be no 
consequent benefit to the veterans of adding judicial review; and 
fourth was the comment that when you transfer decisionmaking 
from an administrative agency that presumably has the expertise 
to a generalist court, where the expertise is not in matters relating 
to any specific subject matter but in procedure, you're really losing 
the benefits that agencies like the Veterans' Administration were 
established to provide. 

On the "pro" side was, first, the general principle that judicial 
review was an important part of our system; second, that in indi- 
vidual cases there is always potential for abuse and faulty decision- 
making, and judicial review provides one kind of corrective; and 
third, there were factual mistakes and specific concerns that 
prompted certain individuals to support judicial review in the Vet- 
erans' Administration, that no system is perfect, and that the cor- 
rective of judicial review is necessary. 

Let me make two other comments with respect to the debate on 
this particular issue. 

There seemed to be a fairly broad consensus that if judicial 
review were adopted, the scope of review should be relatively 
narrow, and there was also on record, second, the position of the 
Administrative Conference that specialized courts of review are not 
generally useful to the administrative process. 

Mr. Chairman, I would ask that my formal statement be made a 
part of the record, and if we can answer any questions, we would 
be happy to. 

[The statement of Mr. Smith appears at p. 202.] 

Mr. Edwards. Thank you, Mr. Smith. 

Mr. Berg, do you have a statement? 

Mr. Berg. No, sir. 

Mr. Edwards. Mr. Hall. 

Mr. Hall. Thank you, Mr. Chairman. 



60 

Mr. Smith, I notice, as you indicated, there were really no defini- 
tive positions that were taken by the statement you have present- 
ed. Maybe Mr. Berg should be the one I should direct this to. 

After you have practiced law for a long period of time, as I have, 
before coming to Congress, of course, you are tuned in to people 
having the right to go into court to settle their claims. As has been 
mentioned to me this morning, maybe the underlying problem to 
consider is whether or not substantial justice is being done now 
with the veterans, not being in an adversarial capacity with the 
Veterans' Administration. 

Second, if you do have judicial review, you will automatically 
have an adversarial relationship probably between the veteran and 
the Veterans' Administration — the burden of proof and the like. 

But you mentioned in the statement about the Federal Employ- 
ees Compensation Act where we have a nonreviewability provision 
applicable to that particular area. Maybe that fits that situation, 
maybe it doesn't. I'm not one to make that decision. But during the 
past IVz years that I have been on this committee, and in the cor- 
respondence that I have received from my district — that's what I'm 
primarily concerned with — I have had many situations arise where 
a veteran feels like he or she is just entitled as a matter of right to 
have their claims adjudicated by a court. Some feel that the time- 
span in the Veterans' Administration is exceedingly long. Of 
course, having some knowledge of the court system, I realize it may 
be a longer procedure if it gets into the courts. There has been 
some questions submitted that it may inundate the court with a lot 
of cases, case filings, which I have some question about. 

But what is the basic reason, if you have one, as to why a veter- 
an should not have the capability of having his case reviewed by a 
court, maybe based on the substantial evidence rule, or whether or 
not the evidence was or was not clear and convincing before the 
Veterans' Affairs Committee. I would like to have your comments 
on that. 

Mr. Berg. The Conference wound up without a formal conclusion 
for or against judicial review. Essentially we tabled the recommen- 
dation. One can only state the conclusion tentatively. 

I believe the Conference felt, the majority who were voting, felt 
that basically the courts were not going to be able to effectively 
second-guess this kind of conclusion, that there would be a burden 
both on the judicial system and possibly on the administrative 
system in the sense that the possibility of judicial review would 
tend to formalize the agency process below. 

I think the Conference simply felt, particularly since it was dem- 
onstrated that there were analogues in other administrative sys- 
tems, that is, employees compensation, that the situation wasn't 
unique and that a showing had not been made that judicial review, 
all in all, would improve the total results of the system. 

I don't want to state this too strongly, because the parliamentary 
situation was that the Conference declined to make a recommenda- 
tion. As you gentlemen I am sure are aware, when a body decides 
not to do something, there can be a range of reasons for the deci- 
sion not to act. 

Mr. Smith. Mr. Hall, I wonder if I may add to that. 



61 

Really, the decision of the Conference was that it wasn't our de- 
cision to make; it was a policy matter and the expertise lies within 
this committee, within the Senate committee, within the Veterans' 
Administration. But the Administrative Conference has no proce- 
dural answer as to whether you should or shouldn't make this deci- 
sion. 

Mr. Hall. Thank you. 

Mr. Edwards. Mr. Daschle. 

Mr. Daschle. Thank you, Mr. Chairman. 

I guess I would like to follow up on some of the questions I was 
asking the earlier witnesses with regard to precedent. Is it your un- 
derstanding as well that there is a precedent currently accepted as 
practice within the active duty ranks of Armed Forces personnel 
today in regard to certain compensation claims, that there have 
been instances whereby military personnel have availed them- 
selves of the courts? 

Mr. Smith. Congressman Daschle, I have no real expertise in 
that. The only statement I could make is that judicial review is ob- 
viously the rule in the administrative process. 

Mr. Daschle. Is the rule in the administrative process? 

Mr. Smith. The cases of an absolute bar on judicial review tend 
to be the exception. 

Mr. Daschle. From the perspective of continuity and the same 
kind of predictability with regard to any Federal agency, would it 
not be your view that having consistency throughout the Federal 
Government would be necessarily a good thing? 

Mr. Smith. As to the general question, I think there is always a 
presumption — I guess that's the very nature of law, to make it 
most consistent. The extent to which you have any inconsistency 
has to be, I think, justified by special circumstances. 

Mr. Daschle. What do you think the special circumstances are 
as we try to distinguish between active duty personnel and retired 
active duty personnel? 

Mr. Smith. Well, again, this is off the top of my head because we 
have no expertise on the substantive matter. But I would look, if I 
were trying to make this decision, at the kinds of cases and the 
substance of the cases that are involved in the active duty situation 
and compare those types of cases to the cases that the Veterans' 
Administration decides. 

Mr. Daschle. Let me just hypothesize for a second — and you'll 
have to bear with me. But given the fact that we would have a sim- 
ilar situation — let's assume for a moment that you have a disabil- 
ity claim situation within the active duty ranks. It then goes 
through the process and into the courts. You have a similar disabil- 
ity claims process through the Veterans' Administration and it 
stops there. 

Would it be your view that similar disability compensation 
claims ought to be treated similarly within the Federal Govern- 
ment? 

Mr. Smith. I think that's a correct proposition, that if you see 
one type of case that is virtually identical to another being adjudi- 
cated under different rules, that obviously creates problems and 
creates a perception of unfairness. 



25-550 O— 83- 



62 

Mr. Daschle. So what you're saying, the bottom line is that the 
adjudication process ought to be similar for similar kinds of claims, 
regardless of where they fall within the Federal Government? 

Mr. Smith. Yes, I think that's true, unless there are other inter- 
vening factors. I think the burden on treating similar things differ- 
ently is on the argument for treating them differently. 

Mr. Daschle. I think that's all we're saying. I think those who 
may argue that that isn't what is happening today have some justi- 
fication in saying virtually what you have just said, that indeed we 
are treating those in active duty ranks differently in some cases 
than we are those who were active duty and are now retired. So I 
appreciate the benefit of your thinking on this. 

That's all the questions I have, Mr. Chairman. 

Mr. Edwards. Mr. Smith, you said that your last review of judi- 
cial review for veterans was 5 years ago and you had attacked the 
problem at that time from the wrong end. Is the Conference plan- 
ning to conduct another study in the near future on this issue? 

Mr. Smith. We have no current plans to conduct a study. In part, 
I guess, we would be looking for the kind of — if there was some- 
thing useful on the matter we could do, we would do it. But I 
think, from a reading of the transcript of the debate, the problem 
we had was the issue tended to be more substantive than procedur- 
al. Our expertise is in procedure and from the procedural point of 
view it was difficult to determine whether there was a need for ju- 
dicial review or not. Largely, that hinged on the expertise of this 
committee and the VA as to whether, in fact, there was a substan- 
tive problem. We really don't have the expertise to determine that. 

Mr. Edwards. Thank you. 

Counsel. 

Mr. Shultz. No questions, Mr. Chairman. 

Mr. Edwards. Thank you very much, Mr. Smith and Mr, Berg. 

Mr. Smith. Thank you, Mr. Chairman, for giving us the opportu- 
nity to be before this committee. I think the Conference is best 
when it is able to serve the Congress and provide useful guidance, 
and I hope we have provided some light, even though we came out 
with a nonposition at our 1978 session. 

Mr. Edwards. Our next witness is Mr. Frederick Davis, dean of 
the University of Da5rton School of Law. Mr. Davis appears on 
behalf of the American Bar Association. 

STATEMENT OF FREDERICK DAVIS, DEAN, UNIVERSITY OF 
DAYTON SCHOOL OF LAW, APPEARING ON BEHALF OF THE 
AMERICAN BAR ASSOCIATION 

Mr. Davis. Thank you, Mr. Chairman. It is both an honor and a 
pleasure to be able to testify here today with respect to this prob- 
lem, a problem on which the American Bar Association has taken 
a very strong position. 

I would like to say at this point that I have no personal axe to 
grind, and neither does the American Bar Association, with respect 
to these legislative proposals. There is no large group of lawyers 
hungering to represent veterans and make a lot of money. The sec- 
tion of administrative law, which is behind the resolution which 
would urge that decisions of the VA be subject to some limited ju- 



63 

dicial review, has taken that position largely because of its concern 
with the constitutional integrity of our Government. Just basic 
fairness is what we're concerned about. 

Now, the law says, as you know, that decisions of the Veterans' 
Administration with respect to any benefit are not reviewable in 
any court, by mandamus or otherwise, and the courts have pretty 
much given that provision of the law a literal interpretation. They 
have gone so far as to say that even arbitrary and capricious deci- 
sions of the Veterans' Administration are not subject to judicial 
correction. There is no other situation that I know of, except for 
the Federal Workmen's Compensation System, in which we have a 
department of Government totally insulated from any external 
audit as to the accuracy or propriety of its decisions. 

It is not a question, as the General Counsel of the Veterans' Ad- 
ministration was wont to put it, of our wanting to have a system in 
which you have appeal after appeal so you ultimately refine with 
exquisite care a certain decision. I think what the American Bar 
Association wants and what the people who are testifying here in 
favor of judicial review want, is some modest and nonintrusive ex- 
ternal check on the legality of what the Veterans' Administration 
is doing. 

My interest in this matter originally was quite academic. I was 
amazed that such statutes existed and I began to get concerned 
about it. But that interest became very real when I was teaching at 
the University of South Dakota. We had a veteran who came there 
and he knew that his veterans' benefits under the statute needed 
vesting — that he had to begin his education by August 1 — and that 
if he didn't begin his education by August 1, his benefits would 
lapse. So he came down to register for summer school, beginning 
on July 1, realizing that that was the way he had to do it to en- 
trench his benefits. 

The adviser at the University of South Dakota, Mr. Lowell 
Hansen — I will always remember his name — said, "Well, maybe we 
can do something about this." He was not a lawyer. He called up 
the VA Regional Office in Minneapolis and told them what the sit- 
uation was, and the Administrator in Minneapolis says, "We will 
waive that. Tell him, if it's inconvenient for him to go to sumrner 
school, tell him he can come back in September and we'll waive 
that." So Lowell Hansen told this man, Mr. Steinmasel that it was 
perfectly all right with the VA and that he didn't have to enter 
school at this time. Well, that became the case of Steinmasel 
against the United States. 

Now, the evidence — and you'll have to take my word for this — 
the evidence in the case was Lowell Hansen's testimony as to what 
took place, the fact that Mr. Steinmasel, who was prepared to enter 
the University of South Dakota, turned around and didn't enter on 
the basis of the representations made, and the testimony of the 
Veterans' Administration official who said he couldn't remember 
giving that advice. The Board of Veterans' Appeals turned down 
the case, saying there was no evidence to support the claim that 
Mr. Steinmasel made. 

Now, those of you who are lawyers perhaps can understand the 
frustration of having a tribunal say something like "Fred Davis, 
that's not your name; your name is Pepperbretsky; or you're not 



64 

really here, you're in San Francisco, and that's final." Of course, 
absurd things like that don't happen, but a number of things 
happen which come very close to that. And contrary to what Mr. 
Smith said, when the Administrative Conference considered this 
proposal back in December 1978, there were a number of documen- 
tations of situations in which the VA had acted arbitrarily. 

For example, the widow of a serviceman, acknowledged by the 
military to have been killed in the line of duty, applies for VA 
benefits. The VA says he was not killed in the line of duty. Of 
course, that is not unusual to have two different agencies interpret 
a statutory term differently for different purposes. That happens in 
other areas of the law. But isn't that the situation in which the in- 
dividual aggrieved feels like he ought to have some sort of judicial 
look at that? Basically, that is all that the various proposals that 
are before Congress do. They simply ask that the veteran be per- 
mitted to petition a court to take a look at what he thinks to be an 
arbitrary, capricious, or totally unjustified exercise of authority by 
the Veterans' Administration. 

There were many other examples before the Administrative Con- 
ference. For instance, there were a number of cases in which veter- 
ans have been convicted of criminal offenses that disqualify them 
or their widows for benefits, and on appeal, the conviction is re- 
versed, and yet the veterans benefits are not reinstated. We have 
cases from an earlier period in which veterans made speeches 
which were unpopular, and the benefits were withdrawn with no 
judicial review. We have plenty of examples of situations in which 
the VA has acted arbitrary and capriciously. 

But even if we didn't have them, the fact that they have the 
power to do that, without having to answer to anybody at any time, 
I think is totally inconsistent with constitutional principles; against 
what we were taught in school; and in defiance of commonly ac- 
cepted expectations. 

One of the things that they say will happen if you open the VA 
up to judicial review is that you will have a flood of claims. In my 
written testimony I think you will see the arguments that indicate 
we will not have the flood of claims that are predicted. All that the 
legislation would really do would be to permit a veteran to petition 
the court to review — and the courts are not hungry for jurisdiction 
these days — and it would be only the most egregious departure 
from congressional expectations that I think would win judicial 
review. It is not the same as social security because the proposals 
before the Congress would not use what is called the substantial 
evidence test. So the decisions would be reversed only if there was 
a clear showing that they were arbitrary or capricious or an abuse 
of discretion, which is a much narrower test than the substantial 
evidence test. 

There are also some predictions that this would create chaos 
within the Veterans' Administration, that it would undo their al- 
ready refined and reliable procedures. That is simply not true. 
Merely opening up a very modest amount of jurisdiction to the 
courts to take a look at what appears to be egregious departures 
from congressional policy would not upset the internal procedures 
of the Veterans' Administration one iota. 



65 

I have already mentioned that there has been a lot of talk about 
attorneys hungrily waiting for this legislation so they can make a 
lot of money representing veterans. I don't know of any attorneys 
that have ever done that or even think about doing that. In the 
course of my time as both teacher and practitioner, I have encoun- 
tered a number of lawyers who have represented veterans, and 
they have discovered the statute and have been absolutely appalled 
by the fact that not only is there no judicial review, but that they 
can't charge more than $10 for their representation, and if they do, 
they are subject to being sent to jail for 10 years. These are two 
situations which I think are just incredible. 

I am very happy to be here to talk about some of these problems 
today. I am pleased to have been asked to come here, and I would 
be happy to answer any questions. 

I have noticed that the questions of previous witnesses have elu- 
cidated a lot more information than just statements made by wit- 
nesses, so I hope you will put some questions to me and I will do 
my best to answer them. 

[The statement of Mr. Davis appears at p. 212.] 

Mr. Edwards. Thank you very much. Dean Davis. That is really 
very helpful testimony and we thank you for reminding the com- 
mittee that there are in the record you referred to of the Adminis- 
trative Conference the examples of where justice has gone awry. 

It occurred to me while you were testifying that the toughest 
criminal in Folsom Prison can get judicial review of some sort, by 
filing a writ of habeas corpus, and yet the veteran can't, no matter 
how arbitrary the decision of the Veterans' Administration might 
be. It doesn't quite make sense to me and I don't think it makes 
sense to you. 

I have no further questions, except to thank you for your splen- 
did testimony. I will yield to the gentleman from Texas, Mr. Hall. 

Mr. Hall. Thank you, Mr. Chairman. Thank you, Mr. Davis. 

Pursuing further the question I asked the previous witness, as 
we all know, at the present time in reviewing a claim, the veterans 
can consider self-serving declarations, hearsay testimony, to try to 
establish the validity of a claim. You can come back and refile if 
you don't think you have had a sufficiently good hearing, that if 
you have lost your case you can come back and, if you can show 
additional evidence, usually medical evidence, you can start all 
over again and just keep going on and on and on. 

If a law was on the books based on having the court make a deci- 
sion to uphold the findings based on substantial evidence, or 
whether or not it was arbitrary and capricious, or the people 
abused their discretion, do you feel the Veterans' Administration, 
anticipating a court review, might limit the kind of testimony it 
would receive at these hearings, doing away with hearsay state- 
ments, self-serving declarations, the type of testimony that they 
now take under consideration, because a court may say "you have 
abused your discretion and taken into consideration all of this tes- 
timony that is not admissible in a court of record." 

Mr. Davis. I don't know what the Veterans' Administration 
would do, Congressman Hall, but I know there would be no reason 
for them to do that. It is very common, in any administrative 
action, to accept testimony and evidence which is not prohibited by 



66 

the normal rules of evidence applicable in court cases. That has 
been the law for a long time, even in agencies which are subject to 
more exquisite judicial review than the VA would be. So there 
would be no reason to fear that the sources of information upon 
which they are going to rely would be in any way limited. 

Mr. Hall. Well, do you have an opinion as to whether or not, if a 
law is passed giving judicial review, that that judicial review 
should be based on the substantial evidence rule, or whether or not 
arbitrary and capricious decisions may have been made by the ad- 
ministrative agency? 

Mr. Davis. My personal opinion. Congressman, is that the formu- 
las that have been used for the various proposals before the Con- 
gress, which do not use the substantial evidence test, are the cor- 
rect ones, because they would tend to lessen the likelihood of what 
you might call judicial second-guessing. Words are words 

Mr. Hall. I may be wrong on this, but don't the social security 
cases, when they go to court, aren't those cases based on substan- 
tial evidence? 

Mr. Davis. Yes, they are. The decision of the social security 
agency in connection with old age and survivors insurance claims 
or disability claims is reviewable to determine whether it is sup- 
ported by substantial evidence in light of the whole record. 

Mr. Hall. Why should it be different in a case like this? 

Mr. Davis. One reason is there have been many persons such as 
myself who have been moved to question the utility of that test in 
social security cases. Where the claims were just for survival and 
old age insurance, old age and survivor benefits, you didn't have 
very close questions of judgment and fact, so the substantial evi- 
dence test was all right when it only applied to those claims. But 
when we brought the disability claims into the system, applying 
that test to every disability case has created too many cases in the 
courts, because the courts are required to review those decisions to 
see if they are supported by substantial evidence in light of the 
whole record. 

I happen to think there are too many cases challenging SSA deci- 
sions, and that's why I think the forumula used for the Veterans' 
Administration cases would be better. I think it would permit the 
court to reverse a case which was clearly an abuse of agency discre- 
tion, but not involve the court in other cases in which there might 
be some differences as to the substantiality of the evidence in light 
of the whole record. 

Mr. Hall. Did I understand you to state a moment ago that you 
were familiar with a case or cases where a veteran had made a 
speech of some kind and lost his veterans' benefits? 

Mr. Davis. Yes. Thompson v. Gleason, which was in the court of 
appeals, is one such case. The other case is Wellman v. Whittier. 
Now, in those cases. Congressman, the veterans were successful in 
going to the courts because those cases were decided before 1970. I 
wrote my Law Review article on this subject in 1964. The Court of 
Appeals for the District of Columbia picked up on the notions that 
I had established in that Law Review article and opened up ap- 
peals, from VA decisions withdrawing benefits, so Wellman and 
Thompson were able to overcome those adverse decisions of the 
VA. 



67 

In 1970 — I think as a great compliment to me, in a way — the 
Veterans' Administration attached as a rider to the appropriations 
bill that went through Congress at that time — an amendment to 
the statute which plugged every possible hole that I had indicated 
was available in my 1964 Law Review article. Thus, today, under 
the present statutory language, Thompson and Wellman would not 
be able to get judicial review of those decisions of the VA, cutting 
off their benefits on the basis of speeches they had made. 

Mr. Hall. Thank you. 

I yield back. 

Mr. Davis. I might add that I think you should all know that I 
was the reporter for the Administrative Conference of the United 
States which made the recommendation for judicial review, and I 
would like to report that the recommendation was unanimously ap- 
proved by the committee structure of the Administrative Confer- 
ence all the way up to the top. It was defeated at the plenary ses- 
sion in December 1978, for a number of reasons — and if I may, I 
would like to list a couple of the reasons. 

There was a sort of elitist attitude prevailing. It wasn't a full ple- 
nary session and there was a prevailing attitude that these little 
claims weren't really very important. The session was more con- 
cerned about big environmental issues and so forth. One of the 
leading opponents of the proposal was the late Justice Harold Lev- 
enthal, a very good friend of mine. But he was very much opposed 
to this because the Judicial Conference had taken a position 
against expanding the jurisdiction of the Federal courts. He had an 
ideological stake in the matter because it conflicted with a resolu- 
tion of the Judicial Conference. 

Now, I can sympathize with the position taken by the Judicial 
Conference. I am an academic and if there's one thing I don't want 
it is a lot more blue books. The fewer blue books I have to grade, 
the happier I am. But you have to take some of those. We are 
always looking for ways to cut down on the student-faculty ratio 
and I can understand why Judge Leventhal would feel the way 
that he did. But on principle, there was absolutely no reason why 
our proposal should have been defeated. I think the politics of the 
situation were that Judge Leventhal was very influential and that 
he also got Prof. Kenneth Culp Davis on his side. I also think that 
Prof. Kenneth Davis felt that he had not been sufficiently consult- 
ed on the issue. So there was some politics behind that rejection. 
The transcript of that Conference, if you read it, clearly supports 
these reviews. 

Mr. Edwards. Thank you, Mr. Davis. 

Mr. Evans. 

Mr. Evans. Thank you, Mr. Chairman. 

I also appreciate your testimony, particularly in light of the fact 
that we have had two administration lawyers appear to be afraid of 
other lawyers, or afraid of courts being involved in these matters. I 
want to clear up something if I can. 

One, I think there is a misperception among many nonattorneys, 
perhaps even on this committee, that the introduction of lawyers, 
even at the administrative level, to the Board of Veterans' Appeals 
is going to add an adversarial type of flavor to the proceedings. In 
fact, I know from my limited administrative hearing experience 



68 

that quite often the lawyer serves as a mediator, that he is not 
quite the courtroom Htigator that a person in regular court is. 

I would like to have your comment on that notion. 

Mr. Davis. Well, I think the point is well taken, that a lawyer 
can serve his client in many other ways as a participant in the ad- 
versary process. As the social security cases indicate, in many of 
those instances, if the claimant had consulted an attorney early on, 
the case would not have gotten to the point at which it caused a lot 
of trouble for both the claimant and the Government. 

That is something the American Bar Association also believes, 
that denying veterans the opportunity — and all we want is the op- 
portunity to consult counsel — denying the veteran the opportunity 
to consult counsel means that he doesn't get the best advice and he 
doesn't get the advantage of what might be an ameliorating influ- 
ence or a negotiated settlement of the case at that early stage. I 
think the point is very well taken, indeed. 

Incidentally, as the dean of a law school — and I have only been 
dean for 2 years — I fully expected to be sued. Almost everybody ap- 
pears to get sued, and I was kind of looking forward to it. I'm not 
afraid of going to court. I think we all have to go to court some- 
times. It is the prerogative of any American citizen, if he believes 
himself aggrieved, to sue somebody else. So I fully expect to get 
sued. I'm not really concerned about it. I haven't been sued yet, but 
I'm not really staying up nights worrying about it, either. 

Mr. Evans. To take that point one step 

Mr. Hall. Once you get sued for a million dollars, you'll be con- 
cerned about it. [Laughter.] 

Mr. Davis. Well, my wife might be, I suppose. I guess I would be 
a little bit concerned. 

Mr. Evans. To take it just one point further, too, a lawyer in- 
volved in the administrative process may know when not to sue. 
After hearing the issues before the administrative procedure, there 
may not be much of a record to actually pursue judicial review, 
and a lawyer involved could prevent a lot of the court cases. 

Mr. Davis. I think that is probably true. If the lawyer is involved 
in it at an early stage, certainly the record will be more complete 
and there would be a better opportunity to determine whether 
there was, in fact, a departure from congressionally mandated prin- 
ciples in the implementation of the benefits program. 

There is a lot of talk about the usurpation of the congressional 
expectations by the courts. Actually, all that judicial review would 
do would be to prevent what I would call a bureaucratic usurpa- 
tion. If the Veterans' Administration doesn't have to answer to 
anybody as to how they distribute these benefits, they tend to 
make up their own law. That law that they make up may not be 
consistent with what Congress has said. 

We have many instances of that. There was a program of educa- 
tional benefits that the Congress enacted in 1977 which was availa- 
ble to everybody. It was a 9-month extension program. It was avail- 
able to everybody. The VA took the position that it was available 
only to veterans who had already begun their educational pro- 
grams. There was nothing in the statute which authorized that in- 
terpretation. It may have been a good one; it may have been a wise 
one; but the statute didn't authorize it. There was no judicial 



69 

review of those decisions denying those educational benefits to vet- 
erans who had not already begun to be covered in the program. 
Those are all in the report I made to the Administrative Confer- 
ence in 1978, all those examples. 

Mr. Evans. Thank you. 

Mr. Edwards. Mr. Daschle. 

Mr. Daschle. Thank you, Mr. Chairman. 

Dean Davis, welcome. I am glad you're here. 

Mr. Davis. Thank you. 

Mr. Daschle. I appreciated many of the comments you made. 

Let me just address some of the arguments made this morning as 
to the reasons given why we shouldn't have judicial review, and I 
would like to have you address them. One was made earlier today 
by the VA — and I will quote from their statement on page 2. It 
says, "It is our experience that VA employees try to find a way to 
grant a benefit and that many claims are allowed by the VA that 
would be denied under a more adversarial process." This goes a 
little bit to what Mr. Hall was asking. 

Would you address that? 

Mr. Davis. Well, they have said that many times, and when they 
say that, the implication is that if you have judicial review, some- 
how or other the administration of the program will not be as 
beneficial or as generous, that it will somehow destroy equities. 

I see no reason for their taking that position. For example, if 
they grant benefits in a questionable case, who would have stand- 
ing to challenge that? I don't know of any principle which would 
allow a taxpayer to come in and challenge it. There is nobody ag- 
grieved except possibly the taxpayer or the Attorney General. It is 
not likely that either would bring an action challenging a course of 
decisions made by the Veterans' Administration. 

But the flip side of that is something that has always worried 
me. We don't know because it's a closed system. We don't know be- 
cause we don't get judicial review. But there are intimations, at 
least to me, that there may be selective preferences extended to 
certain people in the administration of that claims program. Selec- 
tive enforcement of the law is one of the worst problems that we 
face in a constitutional democracy. Selective preferences in a bene- 
fits program is also a terrible thing. It is just possible — we don't 
have any evidence to document this — but it is at least possible that 
the Veterans' Administration may selectively prefer certain types 
of persons. We do have some evidence that, depending upon the 
quality of the disqualifying criminal offense, they do make some ar- 
bitrary distinctions. 

Mr. Daschle. Let me ask you a related question. They say on 
page 4 that "The enactment of judicial review would interject an 
adversary relationship into what has been a cooperative process 
and that, as a matter of principle, the VA should never be placed 
in an adversary position, much less become an opposing litigant, 
with respect to any claimant." 

Are they addressing a legal principle here? What do you think 
they might be referring to when they say "as a matter of principle 
the VA should never be placed in an adversary position"? 

Mr. Davis. I heard your questions this morning. I think you 
brought that point out quite well. It is not adversary until they say 



70 

no. In establishing a claim before the Veterans' Administration iu- 
dicial procedures are not applied, so you don't feel like you re 
before a court of law. You bring in your records and so forth and 
they are reviewed by a committee and what have you. But that is 
true in any claims administration situation. It only becomes adver- 
sary when the claim is denied, and when the claim is denied and 
the person believes it is unjustly denied, that is when you need 
something in the nature of a judicial proceeding in order to deter- 
mine the issue. 

Mr. Daschle. In your study of the process in other agencies of 
Government, obviously there is ample experience to find what costs 
were incurred by claimants seeking some compensation. One of the 
final arguments within the VA testimony was that the present 
availability of free expert assistance which flows from the preserva- 
tion of virtually their entire award of benefits far outweigh the 
theoretical advantages of attorney assistance at sometimes very 
high cost. 

Do we see that to be true as we look to other situations? From 
the experience you have seen, could you comment on what costs 
are incurred on an average basis? 

Mr. Davis. Well, I can't give you an actual cost figure, but there 
are situations in which attorneys have represented claimants on a 
pro bono basis. As a matter of fact, two of the persons that have 
been the most active in support of opening up the VA to judicial 
review are members of a pro bono organization associated with the 
American University School of Law. 

Mr. Daschle. What you are saying is there are cases where the 
American Bar Association and lawyers, just on a very ad hoc basis, 
provide legal assistance free, a gratis. 

Mr. Davis. That's right. 

Mr. Daschle. So in those cases, then, what you're telling us is 
that claimants would not incur any kind of liability or cost? 

Mr. Davis. I think so, in those classes of cases. But the problem 
is that pro bono work is not always available across the board and 
there may be veterans who would not have access to that and they 
would have to pay for legal services. 

Mr. Daschle. That would obviously weigh in their decision as to 
whether they wanted to pursue their option under judicial review. 

Mr. Davis. I think it would, yes. As I pointed out in my written 
testimony, the types of cases that have produced concern have not 
been quite the same as you have in the social security disability 
area. Most of the cases deal with disability ratings, so it is not an 
"all or nothing" thing and it is not likely that very many veterans 
would be wanting to pursue that issue all the way up through judi- 
cial levels. But I think they should have the opportunity if they 
want to do it, and if they feel they are the victim of a particularly 
obnoxious or illegal decision, to have a chance to have somebody 
else look at it. 

When you get right down to it, that is the kernel of the whole 
thing. It is not so much that the Board of Veterans' Appeals is not 
accurate, or that their decisions are not efficient. It is the fact that 
it's within the Veterans' Administration that that decision is made, 
and it is perceived by the veteran as having been made within the 
Veterans' Administration. We have all been told that every person 



71 

has an opportunity to have a decision of an offending Government 
official looked at by an external group, which we call the courts, 
who have no psychological stake in what's going on. 

Like it or not, the members of the Board of Veterans' Appeals 
have a psychological stake in keeping their records clean with re- 
spect to the VA. Don't forget, those persons are appointed within 
the VA. They are not like your administrative law judges. They are 
purely institutional appointees. I am not saying that makes their 
decisions bad, but at least we don't have the guarantee of integrity 
and perspective that you at least have with your administrative 
law judge in a normal administrative agency. 

Mr. Daschle. Mr. Chairman, I know my time is up, but the last 
statement I think is really it. It is the nub of the whole argument, 
that we are putting the VA in the position of being both the de- 
fendant and the judge 

Mr. Davis. That's exactly right. 

Mr. Daschle. Dean Davis, thank you. We are just sorry to have 
lost you from South Dakota. 

Mr. Davis. Both of my sons were born there. 

Mr. Daschle. Thank you. 

Mr. Edwards. Mr. Wilson. 

Mr. Wilson. Mr. Davis, there is obviously a cost factor attached 
to judicial review. It is by no means the overriding factor, but 
would you discuss that briefly, please? 

Mr. Davis. Well, in my written testimony I addressed the ques- 
tion as to what is likely to happen. Now, there are some dire pre- 
dictions of a tremendous increase in cases and a cost factor very 
high. An Assistant Attorney General came up with a prediction of 
something like a 10-percent increase in caseload. 

I just don't see that, and I list the reasons why I don't see that 
actually happening. I don't think the social security system was a 
good analogy upon which to draw and make those projections. So I 
really can't pull cost figures out of my coat pocket here. But I don't 
think the cost would be great, and I think whatever it is, it is 
worth it to have the confidence and integrity of the various people 
who deal with the Veterans' Administration restored and main- 
tained. 

You will probably hear some testimony from some people who 
have been through this, and the feeling is one of just great indigna- 
tion when they find out they cannot go any place to have that deci- 
sion, which they think is terribly unfair and arbitrary, corrected. 

We have one case in which the claim was for injury to the upper 
back. They made a decision of "We have examined your lower back 
and there is nothing wrong with your lower back." He said, "It's 
not my lower back; it's my upper back." No judicial review. You 
can imagine the feeling of frustration that individual felt. It is not 
good for our society that people have that feeling that they've been 
done in by a bureaucracy. At least judicial review gives you a little 
opportunity to dissipate some of that hostility. Even if you lose, 
even if courts reject your claim, at least you have had a chance to 
go there. Even the Supreme Court of the United States permits you 
to petition for certiorari. 

Mr. Wilson. Thank you. Dean. 



72 

There has been a suggestion there be an independent Court of 
Veterans' Appeals. Could you please briefly discuss that issue? 

Mr. Davis. That suggestion has come up many times. It has some 
superficial logic to it. The American Bar Association is on record as 
opposing courts of special jurisidiction, and one reason for that is 
that such courts tend to become themselves quite narrow because 
the judges do not have the experience and the perspectives that 
come from having to deal with other types of cases. That is a very 
difficult proposition to prove, but I think most lawyers who have 
had experience with our system would agree; that a judge who has 
had an opportunity to adjudicate cases across the full spectrum of 
the human condition is likely to bring better judgment and insight 
to a particular case than judges who have specialized only in one 
type of case. I think that would be true here. 

I would not like to see a specialized court. I think actually it 
would be an inefficient use of resources because if the docket got 
reduced for some reason, you would have people already appointed 
with no other jurisdiction to exercise. That's a practical reason for 
being opposed to it. 

Mr. Wilson. Turning to a different subject, would you believe 
that bar associations would police so-called outrageous fees that 
might be paid as compared to a $10 limitation 

Mr. Davis. I don't think we do it as much as we should, but I 
think we do a pretty good job. I think we do a better job of keeping 
our house clean than our medical brethern do. I think we can docu- 
ment that. 

Mr. Wilson. I just have one final question, Mr. Chairman. 

On page 3 of your testimony, you say "This 'no review' clause," 
that means the nonreviewability clause, "crept into the law as a 
provision of the so-called 'Economy Act' of 1933, a part of which 
was designed to give the Veterans' Administration unrestricted 
power in the administration of its programs." Then, later on, you 
say that was an era of "economic fascism." 

I think you might find, Dean, that this has been in the law since 
1887 under something called the Tucker Act and did not come into 
play with the Economy Act of 1933. 

Mr. Davis. Well, I don't want to contradict you at this point be- 
cause I don't have my research here in front of me. But I did the 
research on that for my 1964 Indiana Law Journal article, which 
was the one dealing with this subject. 

My recollection was that there was earlier language in the 
Tucker Act which restricted review, but the language of the Econo- 
my Act of 1933 went far beyond anything that had ever been en- 
acted before. Now, that's my recollection, but I could be wrong. 

Mr. Wilson. I don't want to argue with you, either, but it does 
appear in the Tucker Act in 1887 in somewhat different form. 

Mr. Davis. Yes, but I don't think it's quite as strong in the earli- 
er version. But I could be wrong. 

Mr. Wilson. Thank you, Mr. Chairman. 

Mr. Edwards. Does Mr. Evans seek time? 

Mr. Evans. Yes, Mr. Chairman, just a few followup questions on 
this specialty court. 

Wouldn't, in fact, a specialty court require a special code of regu- 
lations, or at least their own court procedure? 



73 

Mr. Davis. Well, they would probably have their own rules, sure. 

Mr. Evans. So there would be an expense in putting that togeth- 
er and the expense of setting up a special court. There would also 
be the expenses incurred by the individual litigants in taking their 
cases to, say, Washington, D.C., to centralize that process. If you 
take it out of the 94 district courts, you're going to have a process 
in which only those people who can afford to come to Washington 
for a proceeding are able to participate. 

Mr. Davis. Well, I think you're right. It doesn't necessarily in- 
volve coming to Washington. They could run it the way they ran 
the old Court of Claims and have commissioners hear cases in the 
cities around the country. 

But the whole idea of a specialized court — I'm not an expert on 
judicial management or procedure — but just commonsense tells you 
that it is going to be more expensive, and because it has a limited 
docket, you have the manpower there and it can't adjust to the 
changes in the docket, which of course is possible in your regular 
district court. 

Mr. Edwards. As one of the authors of the bill, I would resist 
any amendment that would set up a specialized court. I think we 
would do better with the general jurisdiction that the Federal dis- 
trict courts have. 

Thank you very much. 

Mr. Davis. Thank you. 

Mr. Edwards. And you might send us that. Do you still have a 
copy of that article? 

Mr. Davis. I might have one or two kicking around. 

Mr. Edwards. We would appreciate your sending it to us. ^ 

Mr. Davis. Thank you very much. Congressman, Mr. Chairman. 

Mr. Edwards. Our last group of witnesses will constitute a panel. 
We have John Terzano, legislative director of the Vietnam Veter- 
ans of America, who is accompanied by David F. Addlestone and 
Barton F. Stichman of the VVA Claims Department; Philip E. 
Cushman, executive director of Veterans Due Process, Inc.; and 
Frank E. G. Weil, who is national secretary of the American Veter- 
ans Committee. 

Without objection, all of the statements will be made a part of 
the record. Mr. Terzano, 

STATEMENTS OF JOHN F. TERZANO, LEGISLATIVE DIRECTOR, 
VIETNAM VETERANS OF AMERICA, ACCOMPANIED BY DAVID F. 
ADDLESTONE AND BARTON F. STICHMAN, VVA CLAIMS DE- 
PARTMENT; PHILIP E. CUSHMAN, EXECUTIVE DIRECTOR, VET- 
ERANS DUE PROCESS, INC.; AND FRANK E. G. WEIL, NATIONAL 
SECRETARY, AMERICAN VETERANS COMMITTEE 

STATEMENT OF JOHN F. TERZANO 

Mr. Terzano. Thank you, Mr. Chairman. 

I would like to introduce Mr. David Addlestone, who is on your 
left, and Mr. Bart Stichman, who is on your right, who represent 
the VVA Claims Department. 



' See "Veterans' Benefits, Judicial Review, and the Constitutional Problems of 'Positive' Gov- 
ernment," by Frederick Davis. Retained in committee files. 



74 

We are here today, Mr. Chairman, to discuss an issue that is of 
the highest priority of not only the Vietnam Veterans of America, 
but should be of this Congress. Judicial review is an issue that has 
garnered broad bipartisan support over the years. That support has 
come from veterans' organizations, the past administration, the 
Senate, which has passed this legislation in the 96th, 97th, and 
98th Congresses, and yes, Mr. Chairman, even the Veterans' Ad- 
ministration has supported judicial review in the past. 

This support is based on fairness and equity, that veterans be 
given equal access to the courts as their nonveteran peers. But 
there is an additional reason. Many are unaware that there are in- 
equities within the veterans system of service-connected disability 
benefits. Let me give you a case in point. 

Let's say a private and a captain are both wounded in combat 
and have comparable injuries. The officer opts for the military dis- 
ability retirement system, since compensation will be made on his 
base pay and thus allow him to receive more money under that 
system. The private opts for the VA compensation system because 
under this system he will receive more money. Both veterans dis- 
agree with the disability rating that has come down from the 
Board of Veterans' Appeals. The private has his claim adjudicated 
in the VA system and gets turned down, but he has no recourse for 
he must abide by the VA decision. The officer, on the other hand, 
goes to the Board for Correction of Military Records and he also 
gets turned down. But the decision of the BCMR is reviewable by a 
court and the officer files a claim in the district court and is 
awarded a higher disability rating. 

Two men, Mr. Chairman, with the same injuries, opt for the 
system that benefits them the most. They both disagree with their 
rating, and one can go to court and one cannot. That, Mr. Chair- 
man, is clearly wrong. 

Opponents of judicial review argue that the cases are so compli- 
cated that the Federal courts do not have the expertise to review 
the claims. This argument, Mr. Chairman, is pure myth. Veterans 
claims are simple. Bottom line, what the courts will decide is if the 
veteran is suffering a disability and was it caused by the service. 
Federal courts for decades have reviewed the most complex of 
agency decisions. The questions of whether the veteran has a serv- 
ice-connected disability is rather a very simple issue. Also, it 
should be noted that the Federal courts refer to the VA rating 
schedule in review of Correction Board cases as the bible for rat- 
ings and have for decades interpreted and applied the so-called 
complex set of guidelines under the military disability retirement 
system. 

I must say, Mr. Chairman, that I was appalled last week when I 
heard the representative from the Justice Department say that it 
would be too costly to provide veterans judicial review. I think this 
country is in a sorry state when your concern for dollars is more 
important than our concern for justice. But what is even more ap- 
palling is that the Justice Department cannot provide good, hard, 
factual data on why it would be too costly. I submit, Mr. Chairman, 
that judicial review would streamline the system. 

One of the beneficial byproducts of introducing lawyers to the 
system is that, if the case is no good, it won't go to court. In fact. 



75 

less cases will be handled. Judicial review would stop the frivolous 
adjudication of many claims and would therefore make the system 
less costly. 

Some also believe that the removal of the fee limitation and the 
introduction of lawyers into the VA system would harm the VA's 
decisionmaking process. Arguments against such representations 
suggest that lawyers would unnecessarily complicate the process, 
create an adversary relationship between veterans and the VA, 
and that simply suggesting the notion of lawyer representation 
before the VA is an indictment of the current adjudication system. 
To suggest that lawyers should be able to represent veterans who 
want lawyers before the VA does not mean that the current system 
is either unfair and different or a failure. On the contrary, the 
right to choose a representative does not depend on any shortcom- 
ings of an adjudicative system. Rather, the right to seek legal as- 
sistance should stand alone as an option for all citizens. The $10 
fee limitation serves as a barrier to lawyers, created by Govern- 
ment regulation. Eliminating the prohibition would open the 
system to more free choice and a free market. 

VVA sincerely believes that the introduction of lawyers and 
other legally trained professionals into the VA will improve the 
system. There are several specific benefits we feel that lawyers can 
add to the system. Let it be clear, Mr. Chairman, we are not advo- 
cating replacement of service organization service representatives 
with lawyers. We are advocating that veterans receive the benefit 
of an additional option. 

The most important function that lawyers can serve at the VA, 
as they have in other Federal agencies, is that of a mediator be- 
tween the veteran and the agency. The typical lawyer who advo- 
cates before an administrative agency does not fit the stereotypical 
image of adversarial, trial-type litigators, the image created by 
some who oppose lawyer participation at the VA. Persons farniliar 
with Federal agency practice know that the role of an administra- 
tive advocate is far different from a courtroom litigator. The ad- 
ministrative lawyer frequently acts to explain a complex agency to 
a client and attempts to clarify issues for both the client and the 
agency. The reason why lawyers would function this way is obvi- 
ous. The VA is not an adversary process and there is no attorney 
on the other side to argue against. 

An even more telling point against the argument that lawyers 
will somehow infect a system is to look at the Board of Veterans' 
Appeals itself. The BVA has 15 sections, each with three members. 
Fourteen of the fifteen sections have two of the three members who 
are lawyers. In the 15th section, all three members are lawyers. In 
addition, each section has seven or eight staff attorneys. In short, 
the entire decisionmaking process is monopolized by attorneys. Ev- 
erything is done in legalistic terms. To argue that allowing the vet- 
erans to have a lawyer will infect the process with legalism ignores 
the reality of the process as it now exists. 

In closing, Mr. Chairman, just let me say that the VVA is strong- 
ly opposed to the creation of a specialty court. Specialty courts 
would be dominated, in our opinion, by the agency that it is re- 
viewing and would, in fact, be more expensive for the simple 
reason that a specialty bar would arise here in D.C. Whereas if a 



76 

veteran can file in a district court in his home town, you are pro- 
viding equal access to all veterans across the country and not just a 
few who can come here to Washington. 

I thank you and we would be pleased to answer any questions. 

[The statement of Mr. Terzano appears at p. 228.] 

Mr. Edwards. Thank you, Mr. Terzano. 

I believe you're next, Mr. Cushman. 

STATEMENT OF PHILIP E. CUSHMAN 

Mr. Cushman. Thank you, Mr. Chairman, and members of the 
subcommittee. I am Philip Cushman, the executive director of Vet- 
erans Due Process, based out of Portland, Oreg. I am also an ex- 
marine combat veteran. I appreciate the opportunity and the honor 
to testify before you today. 

I would like to first request that my full prepared written state- 
ment be made a part of the formal record. 

Mr. Edwards. Without objection. 

Mr. Cushman. Many times when I have been traveling around 
the country discussing this problem with people, I find many 
people aren't even aware of what due process of law is. We tell 
them that it simply is the right of every American to be able to 
demand that our Government make decisions consistent with the 
facts and the applicable laws in decisions which it makes which 
affect our lives, or that it gets right down to fundamental fairness. 

In the experience that I have seen veterans have with title 38 
U.S.C. 211(a), which effectively closes every court of law in America 
to veterans and title 38 U.S.C. 3404, 3405 which denies them the 
basic right to hire an attorney — and it is interesting to note that 
the Veterans' Administration has approximately 750 attorneys on 
its staff — and veterans are also denied the protections of the Ad- 
ministrative Procedures Act of 1946, which was passed primarily to 
protect the rights of the American people from being violated by 
agencies of the Federal Government, and other statutes within title 
38, U.S.C, such as 4004(c), which makes the Board of Veterans' Ap- 
peals bound in its decisions by the instructions of the Administra- 
tor of the VA, which we believe can override requirements of law 
and sometimes the facts of a case, we believe that these laws do, in 
fact, violate due process of law. 

We ask ourselves a question: Why should the Government pass 
laws like that affecting any citizen? Is it to insure that the de- 
mands of justice and law are met? That just seems too ridiculous 
for words. This deprivation, in our opinion, is unconscionable and 
constitutes a mockery of justice. That is why Veterans Due Process 
particularly pursues this problem with the intensity that we do. 

It also seems to us that, unfortunately, these laws seek out in 
particular the people who are actually injured defending the Con- 
stitution. As you know, there are a lot of injured veterans — in Viet- 
nam, for example, I believe there is something like 3.8 percent of 
Vietnam-era veterans who were injured in that conflict. It is my 
understanding that, of those, half did not require hospitalization. It 
seems that the vast majority of veterans never have any reason to 
run into these laws that we are talking about, but people who do 
pay the price, who in fact are injured on a field of battle, can run 



77 

into these laws and they are generally in no way prepared phys- 
ically, emotionally, psychologically, financially, in any way to cope 
with this system that they run into. I don't believe in grinding my 
own ax, but I have had experience with the system, as a lot of 
other people in this room have. 

It has been our finding that the basis of a veteran's problems 
with the Veterans' Administration really makes no difference. As 
to whether it's a personality conflict between the veteran and 
somebody at the VA, or a function of agency budgetary constraints, 
or a simple mistake or computer error or whatever; the results can 
be the same. Both the facts of a veteran's case and the applicable 
laws in title 38 United States Code can be ignored. 

Recently I was in your office. Congressman Edwards, and I saw a 
poster on your wall that I especially related to with respect to this 
problem. What it was was the Bill of Rights, and stamped right in 
the middle of it with a big red stamp it said "Void Where Prohibit- 
ed By Law." I looked at that and I thought this is exactly and viv- 
idly what we're talking about here. As a matter of fact, I wanted to 
bring that poster to the hearing today just to share it with the 
people. 

Veterans Due Process does not seek any preferential treatment 
under the law for veterans at all. We just believe that veterans 
should simply have the rights that other claimants before other 
agencies of the Federal Government enjoy; that certainly we 
should have the same protections of the Constitution enjoyed by 
the most heinous criminal which seemingly we as a nation readily 
afford to them, just basic constitutional due process of law protec- 
tions. 

Veterans Due Process believes that Vietnam veterans, atomic 
veterans, and so forth, are in special need of the due process pro- 
tections of law which we discuss here today, because many of their 
complaints seemingly do not fit the mindset of the bureaucracy 
which is tasked with helping them. We often hear that the Viet- 
nam veterans have been stereotyped in the minds of many of the 
American people, and we fear, that stereotype has spread to many 
people who work with the VA and large veterans organizations 
who now enjoy exclusive representation and decision power over 
veterans. I know that John Terzano and myself and quite a few 
other people in the room are Vietnam combat veterans and we per- 
ceive ourselves as being the average Vietnam veteran. 

The VA and some of the organizations which I referenced appear 
to be primarily controlled by veterans of earlier wars — at least 
that's my experience in having dealt with some of them. We have 
often seen where they seem to be less sympathetic to the plight of 
the Vietnam veteran and perhaps the delayed stress syndrome and 
the atomic veteran. Some people believe that the Vietnam veterans 
lost the war, which is debatable. I know that we feel that we really 
didn't lose the war; we fought and we fought hard, as other Ameri- 
cans had in other wars before us. The war went on for a long time 
and didn't work out as a lot of people thought it would. It seems to 
me that quite often both the war itself and its loss are laid on the 
backs of the people that fought it and we don't really perceive that 
as being very fair. That can work to our disadvantage in situations 
such as this. We believe that is partially why Vietnam veterans are 



25-550 O— 83- 



78 

particularly in need of the due process of law protections of the 
Constitution for which we fought and were often injured defending. 

We believe the present Veterans' Administration's primary con- 
cern, based on the thousands of telephone conversations we have 
had with veterans around the country, is perhaps not to the degree 
which it once was, as phrased by Abraham Lincoln in his second 
inaugural address, when he so eloquently phrased "To care for he 
who hath borne the battle, and his widow, and his orphan." We be- 
lieve perhaps to a degree that the Veterans' Administration now is 
interested in large part in perpetuating itself and its 250,000 em- 
ployees and its 750 attorneys and its $26 billion a year budget, and 
that perhaps Abraham Lincoln's statement has deteriorated to a 
degree, to the point where we look at it now as being "To care for 
he, who cares for he who hath borne the battle." That is not 
always the case, but it seems to us sometimes, especially in deci- 
sions that I have seen, that that can be true. 

We look at the unanimous Senate action in support of judicial 
review during the last three or four sessions of Congress. It is cer- 
tainly a strong indicator as to both the seriousness of this issue and 
of its merit as an issue. 

As far as the scope of review, I am not an attorney. We at Veter- 
ans Due Process defer to people who are knowledgeable in the tech- 
nicalities of law, such as the National Veterans Law Center, such 
as my friend Fred Davis, the dean of the University of Dajrton Law 
School. It is simply our belief, being laymen, that if you have a vet- 
eran's case and a set of law books, title 38, United States Code, that 
the applicable law should be applied to the facts and that the deci- 
sion that is ultimately rendered should be consistent with the facts 
and the law. As to what particular handle, or what title, substan- 
tial evidence test or whatever ultimately you want to call it, that's 
fine. That is just the effect we would like to see. 

As for attorneys fees, in reviewing the legislation as we have, we 
feel that certainly veterans who have been injured on the field of 
combat defending the country, that we as any other citizen should 
be allowed the right to counsel that we fought to protect. It seems 
that even in some of the existing legislation the dollars in question 
still constitute limitations that preclude to a degree that basic con- 
stitutional right. 

From a personal standpoint, as an ex-marine combat veteran, I 
know what it is like to skid up on the beach of a foreign land in an 
amphibious landing craft, or to jump out of a helicopter into a hot 
LZ, as we used to refer to them as, a hot landing zone, into ma- 
chinegun fire. I was at that time under the illusion, the same illu- 
sion that the majority of the American people are under right now, 
that veterans have due process of law protections. I was shocked, as 
are the American people who we make aware of this situation 
across the Nation. I suspect that had I known when I was in Viet- 
nam, what I know now, I'm not sure I would have jumped out of 
that helicopter, into that machinegun fire, with the same degree of 
enthusiasm that I did 18 years ago. 

One of my favorite sayings that I believe is particularly applica- 
ble to this situation was uttered I believe in these halls a couple of 
hundred years ago by Thomas Jefferson, when he simply said that, 
"in questions of power, let no more be heard of confidence in man. 



79 

but bind him down from mischief by the chains of the Constitu- 
tion." I would dearly love to see the Veterans' Administration 
brought more under the control of law. I believe that is what we're 
looking at. 

I believe that the fact that these laws affect veterans, in our 
opinion is particularly tragic and certainly ironic, as many of them 
were injured defending the Constitution, but that is really not the 
point. The point as we perceive it is the integrity of the Constitu- 
tion of the United States. What we are looking at is basic, funda- 
mental fairness which we believe so often is lacking in the Veter- 
ans' Administration process. 

I believe one of the Supreme Court Justices once upon a time 
stated something to the effect that total discretion, which is what 
the Veterans' Administration enjoys to a large degree today, is 
more destructive of freedom than any of man's other inventions. 

As far as the special court is concerned, we have thought serious- 
ly about that. How we perceive it, from our laymen's point of view, 
would be more or less just another layer of icing on the existing 
bureaucratic cake, that it would just constitute another large 
degree of wasted expense for the American taxpayer. We don't be- 
lieve that the veteran, as I said, should have preferential treatment 
under the law, but if the veteran believes in the final analysis, 
after he has gone all the way through the VA system, that justice 
has not been served, that that person should be able to go out and 
hire an attorney and pursue it into a court of law. 

As far as the special court, we fear that earlier decisions of the 
Board of Veterans' Appeals would just simply be rubber stamped. 
That fear exists, especially on my part. 

The VA, when it was testifying a few minutes ago, made refer- 
ence to judicial review of the VA being something like a situation 
wherein a Federal district court would be reviewing the decisions 
of another Federal district court. I don't think that that's what 
we're talking about here. I think what we're talking about is an 
impartial review of the decision of an agency of the Federal Gov- 
ernment. I think the really key word here is "impartial," outside of 
the agency. 

We believe that judicial review could just serve as a mechanism 
to insure that the decisions in a veteran's case are consistent with 
the facts and applicable laws. 

I believe that's about all that I have. In my written testimony I 
made reference to a letter written by a Mr. Norman Johnson, who 
was a former staff legal advisor to the Board of Veterans' Appeals. 
That is part of the report that Dean Fred Davis did for the Admin- 
istrative Conference of the United States back in 1978. As I indicat- 
ed in my statement, I would strongly recommend that members of 
this committee read that study because it cites a lot of cases of 
abuse. I believe the potential for that abuse has not ceased to exist 
since 1978, and as a function of budgetary constraints, perhaps it is 
even more important now that it be revised. 

In that letter, the staff legal advisor for the Board of Veterans' 
Appeals said "I want to leave you with one final example of BVA 
attitudes. I once drafted and dictated an appeals decision granting 
service connection status for a black Korean action veteran. The 
elements of the case were clear. His induction physical examina- 



80 

tion report indicated normal feet. The separation physical indicat- 
ed pes planus, or flat feet, not an unusual development over the 
course of Army service and one that can be painful and limiting 
for all of the jokes that are made of it. The facts and the law were 
clear, but the decision was returned to me with instructions to 
deny the claim. 

"I found it difficult to evade the letter of the law and I consid- 
ered it dishonest to arbitrarily deny the facts in order to reach the 
decision my supervisor desired. I asked the section chairman why 
the decision was to be a denial. He explained that it was because 
the veteran was black and all black people eventually get flat feet. 
It was a 'racial characteristic' I now wonder how many decisions 
were written or decided by that man in this 30-odd years with the 
Board of Veterans' Appeals." We believe that judicial review cer- 
tainly could have had a bearing on that situation. 

I would also like to particularly direct your attention to the com- 
parative rights sheet, which is one of the sheets attached at the 
end of the written testimony we have given, to the plight of Pvt. 
Leroy Baily. Situations like that are awfully unfortunate. I 
wouldn't want to try to read this entire statement to you. I am not 
known for my brevity anjrway, but I would just like to 

Mr. Edwards. We're starting to run out of time, Mr. Cushman, 
so, if you could conclude your statement. 

Mr. Cushman. Very good. 

Mr. Chairman and members of the subcommittee, on the basis of 
this and the other testimony which you have heard during these 
hearings on judicial review, I urge that you support the passage of 
a meaningful form of judicial review for America's veterans. 

This concludes my statement and I would be glad to answer any 
questions that I can. 

[The statement of Mr. Cushman appears at p. 251.] 

Mr. Edwards. Thank you, Mr. Cushman. 

I believe Mr. Weil is next. Mr. Weil is National Secretary of the 
American Veterans Committee. 

STATEMENT OF FRANK E. G. WEIL 

Mr. Weil. Thank you, Mr. Chairman. 

In addition to being secretary of the American Veterans Commit- 
tee, I am also chairman of their Veterans and Armed Services Af- 
fairs Commission. In that capacity, this is about the third time I 
have testified on the subject. Both in 1977 and 1979 I had the privi- 
lege of testifying before the other body. I would like my written 
statement to be incorporated into the record and 

Mr. Edwards. Without objection, so ordered. 

Mr. Weil. Thank you, Mr. Chairman — and possibly the written 
statement submitted to the Senate on those two occasions, copies of 
which we can make available.^ 

I will not go over the ground that has been plowed here again 
and again this morning, but would simply associate myself with 
the remarks made by Dean Davis. I thought his testimony was 
quite cogent. 



Retained in Committee file. 



81 

I will go on to two or three matters that have not been covered 
that are included in the pending legislation. First, there are two 
versions of a proposal to expand the Board of Veterans' Appeals. 
Of the two, AVC believes the provisions of H.R. 2936 are superior 
to those of section 105 of Senate bill 636 because it is much sim- 
pler. We also disagree with the wording of proposed 4009(c) of the 
Senate bill which allows judicial review in case of medical disagree- 
ments. Medical disagreements should be reviewable to the same 
extent as other disagreements in the record. 

We agree with the idea that the VA should be subject to the Ad- 
ministrative Procedure Act and disagree with the italicized words 
which were inserted, I believe, at the last moment in the Senate, 
that the APA coverage be limited to matters other than agency 
management, personnel, public property, and contracts. The virtue 
of the APA is that it applies across the Government, and if the 
other agencies can manage matters of management, personnel, 
public property and contracts under the APA, so should the VA. 

I am indeed sorry that the distinguished General Counsel of the 
Veterans' Administration did not decide to remain for the rest of 
the hearing. I think he might learn a number of constructive mat- 
ters. One of the things I would like to call to his attention, as well 
as that of the subcommittee, is the existence of the U.S. Claims 
Court. As a result of recent reorganization, it is a part of what used 
to be the Court of Claims and it is a court from which lie appeals 
to the U.S. Circuit Court for the Federal Circuit. The function of 
that court is to hear claims against the government, and if a VA 
claim is anything, it is a claim against the Government. 

Many situations that arise in the VA setting have also arisen in 
other cases, and the personnel of the U.S. Claims Court have the 
expertise. They don't deal with just narrow categories, so I don't 
think there is a danger of them becoming a rubber stamp. I would 
suggest — nay, I would urge — that the judicial review at least allow 
submission to the U.S. Claims Court and not be limited to the dis- 
trict courts. I think the VA's objection to there being 94 different 
kinds of law would be somewhat reduced if the U.S. Claims Court — 
which h£is national jurisdiction, and commissioners do travel 
throughout the country — be the court to which these matters can 
be appealed. The appeals lies to the U.S. Circuit Court for the Fed- 
eral Circuit, which is an article III court, equal in dignity to all the 
other U.S. circuit courts. 

I would like, in addition, to say a few words about the proposals 
on attorneys' fees. First, thank God, the proposal goes in some way 
to remove this ridiculous $10 limit. However, even the proposal, as 
I understand it, that came out in the Senate is too limited. In the 
first place, it keeps the $10 fee for matters within the VA. I submit 
that this would be pushing cases into the courts. If the attorney 
cannot be compensated until after the matter leaves the VA, you 
will have the usual pro se representation or a representation by 
nonlawyer service officers, many of which are excellent but some of 
whom are new at the job, and everything will be pointed to court 
review; whereas if it is possible for attorneys to come in at an earli- 
er stage, many of these cases will not reach the courts because the 
decision will be favorable at an earlier stage. 



82 

Then the other provision is that the attorneys' fees may be based 
only on a portion of past due awards. I submit, Mr. Chairman, this 
will tend to cause attorneys, at least those who are doing it mainly 
for the fees — and there will be some who are — to delay submission. 
We will see filings 2 days before the statute of limitations expire, 
on the theory that the amount of past due money from which the 
attorney may get a portion is thereby increased. I submit that the 
attorneys fees should be allowed to come out of both past due bene- 
fits and benefits to become due, with a ceiling, of course, with 
proper safeguards, of course. But I would like to remove the incen- 
tive to delay submission to the courts in order to build up the fund 
from which the attorney could be paid if this restriction continues 
into the law. 

Thank you, Mr. Chairman. I shall be happy to answer any ques- 
tions. 

[The statement of Mr. Weil appears at p. 262.] 

Mr. Edwards. Thank you, Mr. Weil. 

Do any other members of the panel desire to testify? Then I rec- 
ognize the gentleman from Illinois, Mr. Evans. 

Mr. Evans. Thank you, Mr. Chairman. 

The VA indicated today, through their General Counsel, that 
they were afraid of inconsistent precedents being raised should ju- 
dicial review be enacted. Would Mr. Stichman care to comment on 
that? 

Mr. Stichman. Yes. I really don't think that's an accurate state- 
ment about what would happen if we went to judicial review. For 
one thing, most cases that are going to go to court will be tied to 
the facts of the case in the sense that the judge is going to rule 
whether the facts show that the veteran is entitled to benefits or 
not from a standard of review of arbitrary and capricious. So when 
you have a decision in one case on that, it is not easily transferable 
to another case. Each case is different as far as the facts are con- 
cerned, and will be judged on a case-by-case basis. 

To the extent there are cases in which the issues before one dis- 
trict court will be the same as before other district courts, district 
courts do follow precedent. They do read other district court deci- 
sions and, although they are not bound by another district court 
decision, they do review those decisions and are persuaded by 
them. 

Now, if you look at the Board of Veterans' Appeals, on the other 
hand, their rules state that they are not bound by the decisions of 
another panel of the Board of Veterans' Appeals. There is no prece- 
dential value whatsoever. So there is an argument to be made that, 
if you allow court review of veterans decisions, there would actual- 
ly be more uniformity in decisionmaking by going to courts which 
do review other written decisions by district judges than if you 
allow the process to stop at the Board of Veterans' Appeals. 

Mr. Evans. There was a concern last week on this committee — at 
least by one member — that this is just a bill that is going to affect 
those people that have agent orange or radiation exposure kinds of 
problems. It is a particular concern to Vietnam veterans. Do you 
have a comment or an opinion on whether it affects more than just 
merely those people who have agent orange or radiation exposure 
problems? 



83 

Mr. Terzano. It will, Mr. Evans. What we are talking about here 
is something that just goes at the core of veterans' issues and veter- 
ans' rights. To be honest with you, I am not sure what a court 
would do with an agent orange claim at this stage of the game. 
You probably, in fact, might not even get a lawyer who would be 
able to take a case if we had judicial review. 

I think it is much broader and it is just at the core of veterans' 
rights. 

Mr. CusHMAN. It is the position of Veterans Due Process, after 
analyzing the different problems that veterans of every war have, 
that they all boil down pretty much to one common denominator, 
and that is the lack of judicial review. They all come down to the 
need for a veteran to have access to a fair and impartial court of 
law and the right to an attorney. 

Mr. Evans. Just one other concern, and it has been voiced by 
several people, and that is the cost to the individual litigant. How 
would that be addressed? There are a lot of people that suggest 
that if you introduce lawyers into the process, a lot of people aren't 
going to be able to be in a position to afford an attorney to repre- 
sent them. Do you have a comment about that? 

Mr. Addlestone. Well, the claims program that VVA set up is 
using attorneys, in fact, using volunteer attorneys, and would pre- 
sumably use volunteer attorneys to handle court cases should judi- 
cial review occur. Legal aid attorneys currently handle veterans 
cases — as long as the Legal Services Corporation is funded, of 
course. If the case has any hope of monetary recovery, I assume 
someone will be able to hire an attorney. It would be more difficult 
if they have to come to Washington to appear before a specialty 
court, but usually there are plenty of attorneys willing to handle 
cases like this. 

The average case, the average veteran — that's kind of our ap- 
proach to this problem — will involve a relatively small claim and 
they are probably going to be represented by a brother-in-law or a 
friend or a neighbor, somebody like that. I don't view these cases as 
that complicated. 

A lot of generalized posturing has been made by some opponents 
of the legislation that some general sort of harm is going to occur, 
and a lot of words are thrown around about adversary process. 
That doesn't really deal with the reality of what a Federal court 
lawsuit involves. A review of claims like this are relatively simple. 
I mean, is the VA's decision arbitrary and capricious? For example, 
if there is one doctor that says yes and one doctor that says no, and 
the opinion doesn't fall flat on its face, there is no prospect to win 
in court. Most lawyers who have done any administrative practice 
can see that immediately. I mean, less than 1 percent of the cases I 
have seen over the last 15 years would not even be arguable in 
court. Also, I think lawyers will serve a great service by weeding 
out a lot of meritless cases. 

Mr. Evans. Just one final concern that I think has been ad- 
dressed by some people on the committee is the fact there would be 
no function for the Board of Veterans' Appeals should we have ju- 
dicial review. That just does not seem to be the case. The judicial 
review bill, I understand, would continue the BVA process. 



84 

Do you see any change in that process on an administrative 
level? 

Mr. Terzano. No, there will be no change at all, Mr. Evans. You 
are correct. The current legislation, Mr. Edwards' legislation and 
Mr. LaFalce's legislation, currently has in the bills provisions that 
allow the VA to keep its informal system and nothing is going to 
change. The service officers aren't going to change. The veterans' 
organizations will still have service officers across the country. All 
we are doing is asking to allow veterans an added option, and that 
is to bring lawyers into the process. 

Mr. Evans. Thank you. 

Mr. Addlestone. If I could add to that, the analogy that we have 
made to the Board for Correction of Military Records and the Dis- 
charge Review Board system is somewhat apt here. Those Boards — 
and each service has one of each Board — handle 35,000 cases, ap- 
proximately, a year and the denial rate is approximately the same 
as for the Board of Veterans' Appeals. Yet only a few hundred of 
those cases go to court every year. Applications are represented by 
service officers and lawyers at these Boards. 

It seems to me to be a very apt analogy. A lot of the claims are 
very similar in the sense that military personnel matters are in- 
volved, such as line of duty, aggravation of injuries, character of 
discharge. There are a lot of cases involving disability retirement, 
which is quite aptly analogous to the VA system, much, much 
closer than the Social Security system. I think looking to these 
boards as a comparable scheme is probably the most accurate. 

Mr. Evans. Thank you, Mr. Chairman. 

Mr. Edwards. Mr. Daschle. 

Mr. Daschle. Thank you, Mr. Chairman. 

First of all, I want to compliment you. I know that we don't have 
many people here this late in the day and in this hearing, but I 
hope that you won't look upon the absence as any lack of attention 
given to the testimony you have presented. I think it really is a re- 
markable thing to have people come, as Phil has, to dedicate him- 
self for weeks and weeks to write the testimony that he has, to 
present his case before this committee as professionally as he did. 

Mr. Weil and John, I just want to say thank you because I think 
it is a very important process and I hope we all recognize how im- 
portant your testimony is and the kind of comments you made this 
morning are to this process. You have presented yourself once 
again extremely well and I am honored to be here to take that 
kind of testimony and to share your views and your input on this 
most important issue. 

The Veterans' Administration made a comment in their state- 
ment that I would like you to address, because I think this is a fun- 
damental concern within the Administration that goes beyond the 
legal question. I have saved this question simply because I believe 
it is important for you, as veterans, to address this more than it is 
for lawyers or anyone else. 

That question relates to their statement that judicial review 
might benefit a few individuals, but "we would see this whole proc- 
ess work to the detriment of veterans as a class by disrupting the 
informal, nonadversary procedures and the cooperative attitude 
presently existing between claimants, their representatives, and 



85 

the VA." In essence, they seem to be saying, "Look, for the advan- 
tage of 2V2 percent, you are going to disadvantage 97 percent." 

How do you feel about that? You, as a group, are probably 
among that 97 percent. 

Mr. CusHMAN. I don't really look upon the existing VA system as 
being nonadversary to the degree that a lot of people do. I believe 
that any time two people are in conflict with one another there is 
an adversarial relationship there. 

As for the formality, it has said that if this legislation passes 
that perhaps it will introduce a little bit more formality into the 
system. Perhaps the Veterans' Administration, if it realized it 
might one day have to attempt to defend its decisions in a court of 
law, would have to formalize the record a little bit more. But to 
offset that to a degree, we think that if veterans had access to at- 
torneys perhaps a little bit earlier on, it might act as a filtration 
mechanism in order to sift out cases which perhaps aren't meritori- 
ous. Some of the money saved there might offset some of the in- 
creased financial needs for any formality that is introduced into 
the system as other cases proceed through the VA process. A cer- 
tain degree of formality would be necessary in order to generate a 
record sufficiently formal to pursue into a court of law. 

Mr. Daschle. John. 

Mr. Terzano. One of the interesting things, Mr. Daschle, when- 
ever the VA makes its comment about it being an adversarial rela- 
tionship if we introduce lawyers into the system, is that they don't 
come up with an example on how it is going to become an adver- 
sarial relationship. A lawyer is not going to take an informal 
system that we have, like the Board of Veterans' Appeals, and turn 
it into an adversarial relationship. He would be a fool to do that 
because it is that informal system that helps and benefits his 
client. He is not going to turn that around and make it an adver- 
sarial relationship. 

You know, maybe what we should do is probably eliminate all 
judicial review for everything. Maybe then they'll be happy. The 
Board for Correction of Military Records, which has judicial 
review, as David has mentioned, only sees a couple of hundred 
cases. 

Mr. Daschle. If I can just refine my question just a little bit 
more, do you see — whether it's an adversarial relationship or a 
very cooperative one — that there is any detriment to those who uti- 
lize this process and who never avail themselves of judicial review? 
It seems to me that that is the case they are making, that to allow 
2 ¥2 percent of our veterans that opportunity, we are necessarily 
then undermining the opportunity for other veterans to utilize the 
process we already have. 

Mr. Terzano. I don't think you will undermine them at all. 

Let's say, for example, GM, which produces a lot of different 
cars, 95 percent of their cars are very good cars and they have no 
problems. But 5 percent are lemons, and they could either be Cadil- 
lacs, Chevys, or Pontiacs. It's a broad spectrum. Those 5 percent 
have recourse. They have redress. That doesn't affect the other 95 
percent who have good cars. Maybe that's an analogy you can use. 

Mr. Daschle. Mr. Weil. 



86 

Mr. Weil. I think you need to look at this in perspective. The VA 
considers themselves the "Great White Father" of the veteran. 
They need to have a slogan which they can believe. The slogan is, 
"Look, we're all buddies here; we're doing it all in your best inter- 
ests." The plantation owner used to say that his people were 
happy. I think those two remarks are comparable. 

Mr. Daschle. Mr. Chairman, I see that I am out of time. 

I have three statements that were provided to us by State legisla- 
tors from Oregon. They had requested that we ask unanimous con- 
sent to insert those into the record. I would do so at this time. 

Mr. Edwards. Is there objection? The Chair hears none. So or- 
dered. ^ 

Mr. Evans. Mr. Chairman, I understand the representatives are 
here. 

Mr. Daschle. I don't know if they're still here or not. 

Mr. Evans. They are here. 

Mr. Edwards. They will be made a part of the record, without 
objection. 

Mr. Evans. Mr. Chairman, could I ask that they be heard as a 
separate panel? 

Mr. Edwards. After adjournment, as time permits. I am expect- 
ing a vote within 5 or 10 minutes, so we will certainly do the very 
best we can, Mr. Evans. 

Mr. Evans. Thank you, Mr. Chairman. 

Mr. Edwards. Mr. Addlestone, there has been some concern 
raised that increased attorneys' fees will cause a financial hardship 
for veterans. Do you think the enactment of this legislation will 
cause this hardship? 

Mr. Addlestone. No. The Senate bill currently would, in effect, 
preclude the retaining of attorneys until after the case had been 
lost before the Board of Veterans' Appeals. Both House bills would 
retain the $10 fee limitation until after a statement of the case is 
issued. 

So, as a practical matter, people with simple claims will have 
their claims taken through the first level of the process without a 
lawyer. But once someone has said "no," a person really wants to 
have an option of whether they're going to appeal with counsel of 
their choice. In the vast majority of cases the attorney is not going 
to end up taking much money from veterans. 

If the veteran has lost at the Board of Veterans' Appeals, he will 
certainly, even if an attorney gets 25 percent or $750 in court, is 
going to have a lot more in the end than he started out with. So I 
think that's just another strawman argument that is set out. 

Mr. Edwards. Thank you, Mr. Addlestone. 

I echo the words of Mr. Daschle about the excellence of your tes- 
timony, all of the members of the panel. Only Mr. Davis, however, 
referred to particular cases — and that is very important in the 
House of Representatives — to have evidence of particular cases 
where justice was not done. 

The Chair invites you to send us "horrible" examples, as we 
refer to them, because they are immensely persuasive. It is all very 
well to talk about the philosophy of due process, but we would like 



^See pp. 266, 279, 274. 



87 

to know and we would like to be able to tell our colleagues where it 
is hurting Joe Smith, Jane Jones, who was denied his or her rights 
because this process is not complete and is not fair. So I hope you 
will take advantage of that. 

Mr. Cushman? 

Mr. Cushman. Yes, Mr. Chairman. That is why in my testimony 
I made reference to Dean Fred Davis' administrative conference of 
the U.S. report, wherein there are numerous cases of abuse. Also, I 
have a record here of a Veterans' Administration case from a Mr. 
Arthur Cronin, who had asked that I present it to the committee if 
I had an opportunity. He certainly believes that he, for decades, 
has been denied justice. 

We routinely tell veterans that we don't as a rule get into the 
individual merits of a veteran's case. It is simply our belief that 
they, like any other American, should have the right to air their 
grievances, if they firmly believe that they have been denied what 
statute law and justice would suggest they are entitled to. 

Mr. Edwards. Thank you. 

Mr. Cushman. So I will put this into the record. 

[The information appears at p. 277.] 

Mr. Wilson. Mr. Cushman, in your literature that you have put 
into the record and in your testimony you made reference to a Mr. 
Leroy Baily. 

Mr. Cushman. Yes, I did. 

Mr. Wilson. The facts on Mr. Leroy Baily are well known to the 
Veterans' Administration and to many people in it. He is a very 
famous case in the Chicago area. He has been hospitalized on many 
occasions and has been operated on, I think, some 30 times. I think 
he would disagree with the statement that this case required Presi- 
dential intercession. It did not. 

Mr. Cushman. I'm just quoting the book, sir. 

Mr. Wilson. Mr. Chairman, I would like, on Mr. Hillis' behalf, to 
have the facts on Mr. Rally's case put into the record. ^ 

Mr. Edwards. Is there objection? The Chair hears none. So or- 
dered. 

Mr. Cushman. I was simply quoting from the book that is refer- 
enced there. 

Mr. Wilson. I would think, Mr. Cushman, in all candor, that you 
should have checked that reference more thoroughly. 

Mr. Shultz. Mr. Chairman, I have several questions, but due to 
the lateness of the hour, I would like to request permission they be 
submitted for the record and, if possible, I would like to ask one 
question. 

Very briefly, I would just like to ask each of the organizations 
what effect introducing attorneys into the system — which I believe 
all of you agree should be done — what effect will that have on the 
representation that is currently being given by the veterans' orga- 
nizations? 

Mr. Terzano. I don't think it's going to have any effect. We have 
implemented a lawyer-supervised, lawyer-directed claims program. 
We, like most veterans' organizations, utilize service officers who 
are employed by the States across the country. I see no detrimental 



' Not received at time of publication. 



88 

effect at all by allowing lawyers to look over the claims at the be- 
ginning. In fact, it might even be more beneficial. As I mentioned 
in my written testimony, when you have got lawyers looking at the 
case from the outset and telling people that you don't have a case, 
that is going to stop frivolous claims from working their way 
through the system. I think the VA would admit that an over- 
whelming number of their claims currently at the Board of Veter- 
ans' Appeals are frivolous claims that have been readjudicated and 
readjudicated. By introducing lawyers into the system, you're going 
to streamline it and just better the system. 

Mr. CusHMAN. The Veterans' Administration law is perceived as 
being a complex legal system, and by existing Veterans' Adminis- 
tration statutes, the veteran is really responsible to comply with all 
of the statutes and regulations. It has been my experience, in 
having looked at quite a few veterans cases, that sometimes the 
service officer perhaps isn't aware of all of these statutes and/or 
regulations that perhaps he should be in a given case. It is just our 
belief that attorneys are professionals, they are educated in gather- 
ing evidence and presenting it, and we just believe that could work 
to the advantage of veterans. 

It is my understanding that service organizations' representa- 
tives aren't required to take a test or anj^hing in order to demon- 
strate knowledge of this area of the law with which they're tasked 
to work. That causes me concern, because when I go up in a matter 
which literally concerns my life, which many of these situations do, 
I would like to know that I had the best professional and knowl- 
edgeable help available. 

Mr. Weil. I believe it is likely to upgrade the system of represen- 
tation. It will probably increase the number of times the nonlawyer 
service representative picks up the phone and talks to a lawyer 
before he goes out to present a particular claim, or it will increase 
the number of instances in which a lawyer will sit down and 
review the file and brief the service representative as to what to 
push, what to skip over lightly, and that sort of thing. So I think, 
on the whole, it will benefit all veterans. 

Mr. Edwards. Are there any further questions, Mr. Evans? 

Mr. Evans. No, Mr. Chairman. 

Mr. Edwards. In that case, we thank the witnesses. We hope you 
will send us some more information, and the hearing is adjourned. 

The Chair points out that quite a number of other people and or- 
ganizations have requested to testify before this panel. I am not the 
chairman of this committee and I do not have the authority to con- 
tinue hearing witnesses. But Chairman Montgomery assures me 
that any person or organization who desires to contribute to this 
important testimony should give us that testimony. It will be treat- 
ed with great respect and it will be made either a part of the hear- 
ing or of the file as the testimony is reviewed. 

[Whereupon, at 12:04 p.m., the subcommittee was adjourned.] 



APPENDIX 



Opening Statement of Hon. G. V. (Sonny) Montgomery 

This morning the subcommittee will hear testimony on the issue of judicial review 
of veterans claims for benefits. 

Section 211(a) of title 38, United States Code, states, "the decision of the adminis- 
trator on any question of law or fact under any law administered by the Veterans 
Administration providing benefits for veterans and their dependents or survivors 
shall be final and conclusive and no other official or any court of the United States 
shall have the power or jurisdiction to review any such decision by an action in the 
nature of mandamus or otherwise." 

This bar to judicial review is of long standing but has been challenged on many 
occasions. Bills which would grant veterans the right to judicial review of decisions 
made by the administrator have been introduced and considered in the past. Howev- 
er, no legislation has been enacted. 

The issue of far from simple. It does not limit itself to the question of whether or 
not the veteran is entitled to one more review of his claim. At issue is the entire 
nature of the VA's adjudicative process; the role of the veterans' organizations in 
that process; the issue of attorney representation and the fees to be permitted; the 
nature and scope of court review to be sanctioned; and the court of jurisdiction to be 
authorized. 

We know that there are arguments which support retention of the current review 
process, as well as arguments which call for judicial review. In order to objectively 
evaluate those arguments, we have invited a number of distinguished and knowl- 
edgeable witnesses to testify and present their views on this subject. Hopefully, this 
testimony and the record of this hearing will provide us with sufficient insight to 
accurately determine which system of review best serves our veteran population. 

(89) 



90 



98th congress 
1st Session 



H. R. 1959 



To amend title 38, United States Code, to establish certain procedures for the 
adjudication of claims for benefits under laws administered by the Veterans' 
Administration; to apply the provisions of section 553 of title 5, United 
States Code, to rulemaking procedures of the Veterans' Administration; to 
provide for judicial review of certain final decisions of the Administrator of 
Veterans' Affairs; to provide for the payment of reasonable fees to attorneys 
for rendering legal representation to individuals claiming benefits under laws 
administered by the Veterans' Administration; and for other purposes. 



m THE HOUSE OF REPRESENTATIVES 

March 8, 1983 

Mr. Edwards of California (for himself, Mr. Daschle, Mr. Edgar, Mr. Sam B. 
Hall, Jr. Mr. Lowry of Washington, Mr. Oberstae, Mr. Richardson, 
and Mr. Wyden) introduced the following bill; which was referred to the 
Committee on Veterans' Affairs 



A BILL 

To amend title 38, United States Code, to establish certain 
procedures for the adjudication of claims for benefits under 
laws administered by the Veterans' Administration; to apply 
the provisions of section 553 of title 5, United States Code, 
to rulemaking procedures of the Veterans' Administration; 
to provide for judicial review of certain final decisions of the 
Administrator of Veterans' Affairs; to provide for the pay- 
ment of reasonable fees to attorneys for rendering legal 
representation to individuals claiming benefits under laws 



91 



2 

administered by the Veterans' Administration; and for other 
purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 That (a) this Act may be cited as the "Veterans' Administra- 

4 tion Adjudication Procedure and Judicial Review Act". 

5 (b) Except as otherwise expressly provided, whenever in 

6 this Act an amendment or repeal is expressed in terms of an 

7 amendment to, or repeal of, a section or other provision, the 

8 reference shall be considered to be made to a section or other 

9 provision of title 38, United States Code. 

10 TITLE I— ADJUDICATION PROCEDURES 

11 Sec. 101. (a) Chapter 51 is amended by adding at the 

12 end of subchapter I the following new section: 

13 "§ 3007. Burden of proof; benefit of the doubt 

14 "(a) Except when otherwise provided by the Adminis- 

15 trator in accordance with the provisions of this title, a claim- 

16 ant for benefits under laws administered by the Veterans' 

17 Administration shall have the burden of submitting evidence 

18 sufficient to justify a belief by a fair and impartial individual 

19 that the claim is well grounded. The Administrator shall 

20 assist a claimant in developing the facts pertinent to the 

21 claimant's claim. 

22 "(b) When, after consideration of all evidence and mate- 

23 rial of record in any proceeding before the Veterans' Admin- 

24 istration on a claim for any benefit under laws administered 

HR 1959 IH 



92 



3 

1 by the Veterans' Administration, there is an approximate bal- 

2 ance of positive and negative evidence regarding the merits 

3 of an issue material to the determination of such claim, the 

4 benefit of the doubt in resolving each such issue will be given 

5 to the claimant, but nothing in this section shall be construed 

6 as shifting from a claimant to the Administrator the burden 

7 described in subsection (a) of this section.". 

8 (b)(1) The table of chapters at the beginning of title 38, 

9 United States Code, and the table of chapters at the begin- 

10 ning of part IV of such title are each amended by striking out 

11 "Apphcations" in the item relating to chapter 51 and insert- 

12 ing in lieu thereof "Claims,". 

13 (2) The heading of such chapter is amended to read as 

14 follows: 

15 "CHAPTER 51— CLAIMS, EFFECTIVE DATES, AND 

16 PAYMENTS". 

17 (c)(1) The table of sections at the beginning of such 

18 chapter is amended by striking out "applications" in the 

19 item relating to subchapter I and inserting in lieu thereof 

20 "claims". 

21 (2) The heading of subchapter I of such chapter is 

22 amended to read as follows: 



HR 1959 IH 



4 

1 "SUBCHAPTER I— CLAIMS". 

2 (d) The table of sections at the beginning of such chap- 

3 ter is amended by inserting after the item relating to section 

4 3006 the following new item: 

"3007. Burden of proof; benefit of the doubt.". 

6 Sec. 102. Section 3311 is amended by adding at the 

6 end the following new sentences: "Subpenas authorized 

7 under this section shall be served by any individual author- 

8 ized by the Administrator by (1) delivering a copy thereof to 

9 the individual named therein, or (2) mailing by registered or 

10 certified mail addressed to such individual at such individual's 

11 last dwelling place or principal place of business. A verified 

12 return by the individual so serving the subpena setting forth 

13 the manner of service, or, in the case of service by registered 

14 or certified mail, the return post office receipt therefor signed 

15 by the individual so served shall be proof of service.". 

16 Sec. 103. Section 4001 is amended — 

17 (1) in subsection (a) — 

is (A) by striking out "(not more than fifty)" 

19 and inserting in lieu thereof "(not more than 

20 sixty-five)"; 

21 (B) by striking out "associate"; and 

22 (C) by inserting "in a timely manner" before 

23 the period at the end of the second sentence; and 

24 (2) by adding at the end the following new sub- 

25 section: 



HR 1959 IH 
25-550 0—83 7 



94 



5 

1 "(c) The Chairman shall submit a report to the appro- 

2 priate committees of the Congress, not later than October 1, 

3 1983, and annually thereafter, on the experience of the 

4 Board during the prior fiscal year together "with projections 

5 for the fiscal year in which the report is submitted and the 

6 subsequent fiscal year. Such report shall contain, as a mini- 

7 mum, the number of cases appealed to the Board during the 

8 prior fiscal year, the number of cases pending before the 

9 Board at the beginning and end of such fiscal year, the 

10 number of such cases which were filed during each of the 

11 twenty-four months preceding the prior fiscal year and the 

12 then current fiscal year, respectively, the average length of 

13 time a case was before the Board between the time of fihng 

14 of an appeal and the disposition during the prior fiscal year, 

15 and the number of members and other professional, adminis- 

16 trative, clerical, stenographic, and other personnel employed 

17 by the Board at the end of the prior fiscal year. The projec- 

18 tions for the current fiscal year and subsequent fiscal year 

19 shall include, for each such year, estimates of the number of 

20 cases to be appealed to the Board and an evaluation of the 

21 Board's ability, based on existing and projected personnel 

22 levels, to ensure timely disposition of such appeals as re- 

23 quired by subsection (a) of this section.". 

24 Sec. 104. Section 4002 is amended by striking out "as- 

25 sociate" each place it appears. 

HR 1959 IH 



95 



6 

1 Sec. 105. Subsections (a) and (b) of section 4003 are 

2 amended by inserting ", after notice to the claimant of such 

3 additional information together with an opportunity to be 

4 heard in connection wath such information," after "con- 

5 cemed" both places it appears. 

6 Sec. 106. Section 4004 is amended — 

7 (1) by inserting "after affording the claimant an 

8 opportunity for a hearing and shall be based exclusive- 

9 ly on evidence and material of record in the proceeding 

10 and on applicable provisions of law" before the period 

11 at the end of the second sentence in subsection (a); 

12 (2) in subsection (b) — 

13 (A) by striking out "in the form of official re- 

14 ports from the proper service department"; and 

15 (B) by adding at the end the following new 

16 sentence: "A judicial decision upholding, in whole 

17 or in part, the disallowance of a claim under 

18 chapter 72 of this title shall not diminish the 

19 Board's discretionary authority under this subsec- 

20 tion to reopen the claim and review the Board's 

21 former decision."; and 

22 (3) by amending subsection (d) to read as follows: 

23 "(d) After reaching a decision in each case, the Board 

24 shall promptly mail notice of its decision to the claimant and 

25 the claimant's authorized representative, if any, at the last 

HR 1959 IH 



96 



7 

1 known address of the claimant and at the last known address 

2 of the claimant's authorized representative, if any. Each deci- 

3 sion of the Board shall include — 

4 "(1) a written statement of the Board's findings 

5 and conclusions, and reasons or bases therefor, on all 

6 material issues of fact, law, and matters of discretion 

7 presented on the record; and 

8 "(2) an order granting appropriate relief or deny- 

9 ing relief.". 

10 Sec. 107. Section 4005(d)(5) is amended by striking out 

11 "will base its decision on the entire record and". 

12 Sec. 108. Section 4009 is amended by adding after sub- 

13 section (b) the following new subsection: 

14 "(c) Whenever there exists in the evidence of record in 

15 an appeal case a substantial disagreement between the sub- 

16 stantiated findings or opinions of two physicians with respect 

17 to an issue material to the outcome of the case, the Board 

18 shall, upon the request of the claimant and, after taking ap- 

19 propriate action to attempjLjo resolve the disagreement, ar- 

20 range for an advisory medical opinion in accordance with the 

21 procedure prescribed in subsection (b) of this section. If the 

22 Board denies the request of such claimant for such an opin- 

23 ion, the Board shall prepare and provide to the claimant and 

24 the claimant's authorized representative, if any, a statement 

25 setting forth the basis for its determination. Actions of the 

HR 1959 IH 



97 



8 

1 Board under this subsection, including any such denial, shall 

2 be final and conclusive and no other official or any court of 

3 the United States shall have the power or jurisdiction to 

4 review any aspect of any such decision by an action in the 

5 nature of mandamus or otherwise, chapter 72 of this title to 

6 the contrary notwithstanding.". 

7 Sec. 109. (a) Chapter 71 is amended by adding at the 

8 end thereof the following new sections: 

9 "§4010. Adjudication procedures 

10 "(a) For purposes of conducting any hearing, investiga- 

11 tion, or other proceeding in connection with the consideration 

12 of a claim for benefits imder laws administered by the Veter- 

13 ans' Administration, the Administrator may administer oaths 

14 and affirmations, examine witnesses, and receive evidence. 

15 "(b) Any oral, documentary, or other evidence, even 

16 though inadmissible under the rules of evidence applicable to 

17 judicial proceedings, may be admitted in a hearing, investiga- 

18 tion, or other proceeding in connection with the consideration 

19 of a claim for benefits under laws administered by the Veter- 

20 ans' Administration, but the Administrator, under regulations 

21 of the Administrator, may provide for the exclusion of irrele- 

22 vant, immaterial, or unduly repetitious evidence. 

23 "(c) In the course of any proceeding before the Board, 

24 any party to such proceeding or such party's authorized rep- 

25 resentative shall be afforded opportunity — 

HR 1959 IH 



98 



9 

1 "(1) at a reasonable time prior thereto as well as 

2 during such proceeding, to examine and, on payment of 

3 a fee prescribed pursuant to section 3302(b) of this title 

4 (not to exceed the direct cost of dupUcation), obtain 

5 copies of the contents of the case files and all docu- 

6 ments and records to be used by the Veterans' Admin- 

7 istration at such proceeding; 

8 "(2) to present witnesses and evidence, subject 

9 only to such restrictions as may be set forth in regula- 

10 tions of the Administrator, pursuant to subsection (b) of 

11 this section, as to materiahty, relevance, and undue 

12 repetition; 

13 "(3) to make oral argument and submit written 

14 contentions, in the form of a brief or similar document, 

15 on substantive and procedural issues; 

16 "(4) to submit rebuttal evidence; 

17 "(5) to present medical opinions and request an 

18 independent advisory medical opinion pursuant to sec- 

19 tion 4009(c) of this title; and 

20 "(6) to serve written interrogatories on any 

21 person, including employees of the Veterans' Adminis- 

22 tration, which interrogatories shall be answered sepa- 

23 rately and fully in writing and under oath unless writ- 

24 ten objection thereto, in whole or in part, is filed with 

HR 1959 IH 2 



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10 

1 the Administrator by the person to whom the interrog- 

2 atories are directed or such person's representative. 

3 The fee provided for in clause (1) of this subsection may be 

4 waived by the Administrator, pursuant to regulations which 

5 the Administrator shall prescribe, on account of the party's 

6 inability to pay or for other good cause shown. In the event 

7 of any objection, filed under clause (6) of this subsection, the 

8 Administrator shall, pursuant to regulations which the Ad- 

9 ministrator shall prescribe establishing standards consistent 

10 with standards for protective orders applicable in the United 

11 States District Courts, evaluate such objection and issue an 

12 order (A) directing that, within such period as the Adminis- 

13 trator shall specify, the interrogatory or interrogatories ob- 

14 jected to be answered as served or answered after modifica- 

15 tion, or (B) indicating that the interrogatory or interrogator- 

16 ies are no longer required to be answered. If any person upon 

17 whom interrogatories are served under this section fails to 

18 answer or fails to provide responsive answers to any such 

19 interrogatories vdthin thirty days after service or such addi- 

20 tional time as the Administrator may allow, the Administra- 

21 tor shall, upon a statement or showing by the party who 

22 served such interrogatories of general relevance and reason- 

23 able scope of the evidence sought, issue a subpena pursuant 

24 to section 3311 of this title (vdth enforcement of such sub- 

25 pena to be available pursuant to section 3313 of this title) for 

HR 1959 IH 



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11 

1 such person's appearance and testimony on such interroga- 

2 tones at a deposition on written questions, at a location 

3 within one hundred miles of where such person resides, is 

4 employed, or transacts business. 

5 "(d) In the course of any hearing, investigation, or other 

6 proceeding in connection with the consideration of a claim for 

7 benefits under laws administered by the Veterans' Adminis- 

8 tration, an employee of the Veterans' Administration may at 

9 any time disqualify himself or herself, on the basis of personal 

10 bias or other cause, from adjudicating the claim. On the filing 

11 by a party in good faith of a timely and sufficient affidavit 

12 averring personal bias or other cause for disqualification on 

13 the part of such an employee, the Administrator shall deter- 

14 mine the matter as a part of the record and decision in the 

15 case. 

16 "(e) The transcript or recording of testimony and the 
,17 exhibits, together with all papers and requests filed in the 

18 proceeding, and the decision of the Board shall constitute the 

19 exclusive record for decision in accordance with section 

20 4004(a) of this title, and shall be available for inspection by 

21 any party to such proceeding, or such party's authorized rep- 

22 resentative, at reasonable times and places and, on the pay- 

23 ment of a fee prescribed pursuant to section 3302(b) of this 

24 title (not to exceed the direct cost of duplication), shall be 

25 copied for the claimant or such claimant's authorized repre- 

HR 1959 IH 



iOl 



ii 

1 sentative within a reasonable time. Such fee may be waived 

§ by the Adminif5tratbf, pursuant to regulations wliicli the Ad- 

3 ministrator shall prescribe, on account of the party's inability 

4 to pay of for 6ttief good eau§§ §h6wti. 

i "(f) Notwithstanding section 4004(a) of this title, section 

6 554(a) ef title 5, df afly 8t}^§l* provision of law, adjudicati^ 

1 and hearing procedures prescribed in this title and in reguk- 

8 tions prescribed by the Administrator under this title for the 

9 purpose of administering veterans' benefits shall be exclusive 

10 with respect to hearings, investigations, and other proceed- 

1 1 ings in connection with the consideration of a claim tor bene- 

12 fits under laws administered by the Veterans' Administration. 

13 "§4011. Notice of procedural rights 

14 "In the case of atiy denial, in whole of ill paH, of a 

15 claim foi* benefits under laWs adihiiii§tefed by ttig ¥et§fafl§ 

16 Administration, the Administrator shall, at each procedural 
If stage relating to th§ dlspO^ltitift d §tieh a claim, begitltiihg 

18 with denial after an initial review or determination and in- 

19 eluding the furnishing of a statement of the case and the 

20 making of a final determination by the Board, provide to the 

21 claimant and such claimant's authorized representative, if 

22 any, written notice of the procedural rights of the claimant. 

23 Such notices shall be on such forms as the Administrator 

24 shall prescribe by regulation and shall include, in easily Un- 

25 derstandable language, with respect to proceedings before the 

Hit 1959 in 



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13 

1 Veterans' Administration, (1) descriptions of all subsequent 

2 procedural stages provided for by statute, regulation, or Vet- 

3 erans' Administration policy, (2) descriptions of all rights of 

4 the claimant expressly provided for in or pursuant to this 

5 chapter, of the claimant's rights to a hearing, to reconsider- 

6 ation, to appeal, and to representation, and of any specific 

7 procedures necessary to obtain the various forms of review 

8 available for consideration of the claim, and (3) such other 

9 information as the Administrator, as a matter of discretion, 

10 determines would be useful and practical to assist the claim- 

11 ant in obtaining full consideration of the claim.". 

12 (b) The table of sections at the beginning of such chap- 

13 ter is amended by adding at the end the following new items: 

"4010. Adjudication procedures. 
"4011. Notice of procedural rights.". 

14 Sec. 110. (a) In order to evaluate the feasibility and 

15 desirability of alternative methods of (1) assuring the resolu- 

16 tion of claims before the Administrator of Veterans' Affairs 

17 for benefits under laws administered by the Veterans' Admin- 

18 istration as promptly and efficiently as feasible following the 

19 filing of a notice of disagreement pursuant to section 4005 (as 

20 amended by section 107 of this Act) or 4005A of title 38, 

21 United States Code, and (2) affording claimants the opportu- 

22 nity for a hearing before or review by a disinterested authori- 

23 ty at a location as convenient and on as timely basis as possi- 

24 ble for each claimant, the Administrator shall conduct a 

HR 1959 IH 



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14 

1 study, commencing not more than one year after the date of 

2 the enactment of this Act, kf A period of between twenty- 

3 four and thirty-six months, in at least six geographic areas 

4 and at least six regional offices of the Veterans' Administra- 

5 tion, involving two alternative methods for resolution of 

6 claims. 

7 (b)(1) In at least three such geographic areas, the Ad- 

8 ministrator shall provide an intermediate-level adjudication 

9 process whereby each claimant may, within the time afforded 

10 such claimant under paragraph (3) of such section 4005(d) or 

11 4005 A(b) to file an appeal, request a de novo hearing at the 

12 agency of original jurisdiction (as described in section 

13 4005(b)(1) of such title 38) before a panel of three Veterans' 

14 Administration employees, each of whose primary responsi- 

15 bilities include adjudicative futidtidhs but tione of whom shall 

16 have previously considered the merits of the claim at issue. 

17 Following such hearing, such panel shall render a decision 

18 and prepare a new statement of the case in accordance with 

19 the requirements of paragraphs (1) and (2) of such section 

20 4005(d). Such new statement of the case shall, for all pur- 

21 poses relating to appeals under chapter 71 of such title 38, be 

22 considered to be a statement of the case as required by para- 

23 graph (1) of such section 4005(d). 

24 (2) In at least three other such geographic areas, the 

25 Administrator shall provide for an enhanced schedule of 

HR 1959 IH 



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15 

1 visits, on at least a quarterly basis each year, by a panel or 

2 panels of the Board of Veterans' Appeals to conduct formal 

3 recorded hearings pursuant to such section 4002 in such 

4 areas. 

5 (c) Not later than six months after the completion of 

6 such study, the Administrator shall report to the Congress on 

7 the results of the study, including an evaluation of the cost 

8 factors associated on an annual basis with each alternative 

9 studied and with any appropriate further implementation 

10 thereof, the unpact on the workload of each regional office 

11 involved in such study, and the impact on the annual case- 

12 load of the Board of Veterans' Appeals resulting from each 

13 alternative studied, together with any recommendations for 

14 administrative or legislative action, or both, as may be indi- 

15 cated by the results of such study. 

16 TITLE n— VETERANS' ADMINISTRATION RULE 

17 MAKING 

18 Sec. 201. (a) Subchapter 11 of chapter 3 is amended by 

19 adding at the end the following new section: 

20 "§221. Rulemaking 

21 "Notwithstanding the provisions of subsection (a)(2) of 

22 section 553 of title 5, the promulgation of rules and regula- 

23 tions by the Administrator shall be subject to the require- 

24 ments of section 553 of title 5.". 



HR 1959 m 



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16 

1 (b) The table of sections at the beginning of such chap- 

2 ter is amended by adding at the end thereof the following: 

"221. Rule maJdng.". 

3 TITLE m— JUDICIAL REVIEW 

4 Sec. 301. Subsection (a) of section 211 is amended by 

5 striking out "sections 775, 784" and inserting in lieu thereof 

6 "sections 775 and 784 and chapter 72 of this title". 

7 Sec. 302. (a) Part V is amended by adding after chapter 

8 7 1 the following new chapter: 

9 "CHAPTER 72— JUDICIAL REVIEW 

"Sec. 

"4025. Jurisdiction. 

"4026. Scope of review. 

"4027. Remands. 

"4028. Survival of actions. 

"4029. Appellate review. 

10 "§4025. Jurisdiction 

11 "(a) Except as provided in subsection (h) of this section, 

12 after any final decision of the Administrator (as defined in 

13 subsection (c) of this section) adverse to a claimant in a 

14 matter involving a claim for benefits under any law adminis- 

15 tered by the Veterans' Administration, such claimant may 

16 obtain a review of such decision in a civil action commenced 

17 within one hundred and eighty days after the mailing to the 

18 claimant of notice of such decision pursuant to section 4004 

19 of this title. Such action shall be brought against the Admin- 

20 istrator in the district court of the United States for the judi- 

21 cial district in which the plaintiff resides or the plaintiff's 

HR 1959 IH 



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17 

1 principal place of business is located, or in the district court 

2 of the United States for the judicial district where the princi- 

3 pal offices of the Board of Veterans' Appeals (established 

4 under section 4001 of this title) "are located. 

5 "(b) In any matter not directly involving a claim for 

6 benefits under any law administered by the Veterans' Admin- 

7 istration, section 211(a) of this title shall not operate as a bar 

8 to a civil action otherwise authorized by law. 

9 "(c) For the purposes of this chapter and section 3404 

10 of this title: 

11 "(1) The term 'final decision of the Administrator' 

12 means — 

13 "(A) a final determination of the Board of 

14 Veterans' Appeals pursuant to section 4004(a) or 

15 4004(b) of this title; or 

16 "(B) a dismissal of an appeal by the Board of 

17 Veterans' Appeals pursuant to section 4005 or 

18 4008 of this title. 

19 "(2) The term 'claim for benefits' means — 

20 "(A) an initial claim filed under section 3001 

21 of this title; 

22 "(B) a challenge to a decision of the Admin- 

23 istrator reducing, suspending, or terminating bene- 

24 fits; or 



HR 1959 m 



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18 

1 "(C) any request by or on behalf of the 

2 claimant for reopening, reconsideration, or further 

3 consideration in a matter described in clause (A) 

4 or (B) of this paragraph. 

5 "(d) The provisions of this chapter shall not apply to 

6 matters arising under chapter 19 or 37 of this title. 

7 "(e) The complaint initiating an action under subsection 

8 (a) of this section shall contain sufficient information to 

9 permit the Administrator to Identify and locate the plaintiffs 

10 Veterans' Administration records. 

11 "(f) The Administrator shall file, together with the 

12 answer to a complaint filed pursuant to subsection (a) of this 

13 section, a certified copy of the records upon which the find- 

14 ings of fact and decision complained of are based or, if the 

15 Administrator determines that the cost of filing copies of all 

16 such records is unduly expensive, the Administrator shall file 

17 a complete index of all documents, transcripts, or other mate- 

18 rials comprising such records. After such index is filed and 

19 after considering requests from all parties, the court shall re- 

20 quire the Administrator to file certified copies of such indexed 

21 items as the court deems relevant to its consideration of the 

22 case. 

23 "(g) In an action brought pursuant to subsection (a) of 

24 this section, the court shall have the power, upon the plead- 

25 ings and the records specified in subsection (f) of this section, 

HR 1959 IH 



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19 

1 to enter judgment in accordance with section 4026 of this 

2 title or remand the cause in accordance with section 4026 or 

3 4027 of this title. 

4 "(h) No action may be brought under this section as to 

5 which the initial claim for benefits is filed pursuant to section 

6 3001(a) of this title after the last day of the fifth fiscal year 

7 beginning after the effective date of this section. 

8 "§ 4026. Scope of review 

9 "(a) In any action brought under section 4025 of this 

10 title, the reviewing court to the extent necessary to its deci- 

1 1 sion and when presented, shall — 

12 "(1) decide all relevant questions of law, interpret 

13 constitutional, statutory, and regulatory provisions; 

14 "(2) compel action of the Administrator unlavirfully 

15 withheld; and 

16 "(3) hold unlawful and set aside decisions, find- 

17 ings, and conclusions of the Administrator found to 

18 be— 

19 "(A) arbitrary, capricious, an abuse of discre- 

20 tion, or otherwise not in accordance v^dth law; 

21 "(B) contrary to constitutional right, power, 

22 privilege, or immunity; 

23 "(C) in excess of statutory jurisdiction, au- 

24 thority, or limitations, or in violation of a statu- 

25 tory right; or 

HR 1959 IH 



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20 

1 "(D) without observance of procedure re- 

2 quired by law. 

3 If the reviewing court finds the Administrator's finding on an 

4 issue or issues of fact to be arbitrary, capricious, or an abuse 

5 of discretion, the court shall specify where it finds the record 

6 to be deficient and shall, prior to entering any judgment re- 

7 versing such decision, remand the case a single time to the 

8 Administrator for further action not inconsistent with the 

9 court's order. In so remanding, the court shall specify a rea- 

10 sonable period within which the Administrator shall complete 

1 1 the required action and, if such action is not completed within 

12 the time specified by the court, the matter shall be returned 

13 to the court for its action. 

14 "(b) In making the determinations under siibsection (a) 

15 of this section, the court shall review the whole record before 

16 the court pursuant to section 4025(0 of this title or those 

17 parts of such record cited by a party, and due account shall 

18 be taken of the rule of prejudicial error. 

19 "(c) In no event shall findings of fact made by the Ad- 

20 ministrator be subject to trial de novo by the reviewing court. 

21 "(d) When a final decision of the Administrator (as de- 

22 fined in section 4025(c) of this title) is rendered in any case 

23 and such decision is adverse to a party solely because of the 

24 failure of such party to comply with any applicable regulation 

25 of the Veterans' Administration, the court shall review only 

HR 1959 m 
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110 



21 

1 questions raised as to compliance with and the vaHdity of the 

2 regulation. 

3 "§4027. Remands 

4 "In any action brought under section 4025 of this title, 

5 the reviewing court shall, on motion of the Administrator 

6 made before the expiration of the time specified for the filing 

7 of an answer to a complaint filed pursuant to subsection (a) of 

8 such section, allow a single remand of a case to the Adminis- 

9 trator for further review by the Administrator. E such review 

10 is not completed within ninety days after the date of such 

11 remand, the matter shall be returned to the court for its 

12 action. At any time after the Administrator files an answer, 

13 the court may, in the exercise of its discretion, remand the 

14 case to the Administrator for further action by the Adminis- 

15 trator and, if either party shall apply to the court for leave to 

16 adduce additional evidence and shall show to the satisfaction 

17 of the court that such additional evidence is material and that 

18 there is good cause for granting such leave, the court shall 

19 remand the case to the Administrator and order such addi- 

20 tional evidence to be taken by the Administrator; in either 

21 case, the court may specify a reasonable period of time within 

22 which the Administrator shall complete the required action. 

23 After a case is remanded to the Administrator, and after fur- 

24 ther action by the Administrator, including consideration of 

25 any additional evidence, the Administrator shall modify, sup- 

HR 1959 IH 



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22 

1 plement, affirm, or reverse the findings of fact or decision, or 

2 both, and shall file with the court any such modification, sup- 

3 plementation, affirmation, or reversal of findings of fact or 

4 decision or both, as the case may be, and certified copies of 

5 any additional records and evidence upon which such modifi- 

6 cation, supplementation, affirmation, or reversal was based. 

7 Any such modification, supplementation, affirmation, or re- 

8 versal of the findings of fact or decision shall be reviewable 

9 by the court only to the extent provided in section 4026 of 

10 this title with respect to the review of the original findings of 

1 1 fact and decision. 

12 "§ 4028. Survival of actions 

13 "Any action brought under section 4025 of this title 

14 shall survive, notwithstanding any change in the person occu- 

15 pying the Office of the Administrator or any vacancy in such 

16 office. 

17 "§ 4029. Appellate review 

18 "The decisions of a district court pursuant to this chap- 

19 ter shall be subject to appellate review by the courts of ap- 

20 peals and the Supreme Court of the United States in the 

21 same manner as judgments in other civil actions.". 

22 (b) The table of chapters at the beginning of title 38, 

23 United States Code, and the table of chapters at the begin- 

24 ning of part V are each amended by inserting after the item 

25 relating to chapter 7 1 the following new item: 

"72. Judicial Review 4025". 

HR 1959 m 



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23 

1 Sec. 303. Section 1346(d) of title 28, United States 

2 Code, is amended by inserting "except as provided for in 

3 chapter 72 of title 38" before the period at the end thereof. 

4 TITLE IV— ATTORNEYS' FEES 

5 Sec. 401. Section 3404 is amended by striking out sub- 

6 section (c) and inserting in Ueu thereof the following: 

7 "(c) The Administrator shall approve reasonable attor- 

8 neys' fees to be paid by the claimant, to attorneys recognized 

9 under this section, for services rendered in representing an 

10 individual before the Veterans' Administration in connection 

11 with claims for benefits under laws administered by the Vet- 

12 erans' Administration. In no event shall such attorneys' fees 

13 exceed — 

14 "(1) for any claim resolved before the claimant's 

15 receipt of a statement of the case pursuant to section 

16 4005(d) of this title, $10; or 

17 "(2) for any claim resolved following the claim- 

18 ant's receipt of such statement of the case, an amount 

19 in excess of the lesser of — 

20 "(A) the fee agreed upon by the claimant 

21 and the attorney; or 

22 "(B)(i) $500, or a greater amount specified in 

23 regulations prescribed by the Administrator based 

24 on changed national economic conditions subse- 

25 quent to the date of enactment of this subsection, 

HR 1959 IH 



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24 

1 except that the Administrator may, in the Admin- 

2 istrator's discretion, determine and approve a fee 

3 in excess of $500, or such greater amount if so 

4 specified, in an individual case involving extraor- 

5 dinary circumstances warranting a higher fee; or 

6 "(ii) if the claimant and an attorney have en- 

7 tered into an agreement under which no fee is 

8 payable to such attorney unless the claim is re- 

9 solved in a manner favorable to the claimant, 25 

10 per centum of the total amount of any past-due 

11 benefits awarded on the basis of the claim.". 

12 "(d) If, in an action brought under section 4025 of this 

13 title, the matter is resolved in a manner favorable to a claim- 

14 ant who was represented by an attorney, the court shall de- 

15 termine and approve as part of its judgment a reasonable fee 

16 for such representation to be paid to the attorney by the 

17 claimant. When the claimant and an attorney have entered 

18 into an agreement under which no fee is payable to such 

19 attorney unless the matter is resolved in a manner favorable 

20 to the claimant, the fee so determined and approved shall not 

21 exceed 25 per centum of the total amount of any past-due 

22 benefits awarded on the basis of the claim. If, in such an 

23 action, the matter is not resolved in a manner favorable to a 

24 claimant, the court may determine and approve as part of its 

25 judgment a reasonable fee, taking into consideration the 

HR 1959 m 



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25 

1 extent to which there could have appeared to have been a 

2 reasonable probability of success for such an action at the 

3 time it was filed, for the representation of such claimant not 

4 in excess of $750. 

6 "(e) To the extent that past-due benefits are awarded in 

6 proceedings before the Administratbr or by a court, the Ad- 

7 ministrator shall direct payment of any attorney's fee that 

8 has been determined and approved under this section out of 

9 such past-due benefits, but in no event shall the Administra- 

10 tor Avithhold any portion of benefits payable for a period sub- 

11 sequent to the date of the decision of the Administrator or 

12 court making such award. 

18 "(f) The approval by the Administrator regarding attor- 

14 neys' fees pursuant to subsection (c) of this section may be 

15 reviewed by a court only to determine whether the Adminis- 

16 trator's action constituted an abuse of discretion. Review of 

17 the approval by either the Administrator or the court regard- 

18 ing an attorney's fee shall be obtained as follows: 

19 "(1) For an award iii coiijiihctiori with a ckiiil 
^0 before the Administrator pursuant to subsection (c) of 
§1 this seCtiatii by at! adtion brought, within thirty days 

23 after the date of notice of such award, by either the 
M claimant or the attorney in the district court of the 

24 United States in the judicial district in which the 



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26 

1 claimant resides or the claimant's principal place of 

2 business is located. 

3 "(2) For an award in conjunction with a claim ap- 

4 proved by a United States court pursuant to subsection 

5 (d) of this section, on a motion made, within thirty 

6 days after the date of such award, by either the claim- 

7 ant or the attorney in the district court of the United 

8 States where the appeal was considered. 

9 For actions brought under clause (1) of this subsection, the 

10 Administrator shall be named as the defendant, but notice of 

11 any such action shall also be given to all parties in interest 

12 and all such parties shall be heard by the court reviewing the 

13 award. 

14 "(g) The provisions of this section shall apply only to 

15 cases involving claims for benefits under the laws adminis- 

16 tered by the Veterans' Administration, and such provisions 

17 shall not apply in cases in which the Veterans' Administra- 

18 tion is the plaintiff or in which other attorneys' fee statutes 

19 are otherwise controlling. 

20 "(h) For the purposes of subsections (c) and (d) of this 

21 section, claims shall be considered as resolved in a manner 

22 favorable to the claimant when all or any part of the relief 

23 sought is granted. 

24 "(i) In an action brought under section 4025 of this title, 

25 the court may award to a prevailing party, other than the 

HR 1959 IH 



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1 Administrator, reasonable attorneys' fees and costs when th6 

§ dOiift finds ttiftt ttie pbsitiofl df ttie Adininistfatof wa§ fl6l 

3 substantially justified or that special circumstances make ati 

4 award jii§l.": 

§ Md: 402. Section 3405 is amended by striking out "or*' 

§ afef "title,'' atld striking out "him" and inserting in lieu 

^ thereof "such claimant 01- beneficiary, or (3) With inteiit tb 

8 defraud, in any manner willfully and knoAvingly deceives, 

5 misleads, or threatetis ft claimant or beneficiary or prospec- 
10 tive dlftiitlftnt or beneficiary under this title with reference to 
ii any matter covered by this title*'. 

ii TITLE V— EFFECTIVE DATES 

i§ §16; 501. This Act shall take effect on the f\M day of 

14 the first month beginning more than one hundred and eighty 

15 days after the date of the enactment ot this Act. 

ii ^fiG; 502. A civil action authorized in chapter 72 of title 

i? 88, United States Code, fts added by §ecti6n S02 of this Act, 

18 may be instituted to review decisions of the Board of Vetef- 

i§ ails' Appeals fehdefed oti m dm Jahuafy l, IBT?, atid 

20 before the effective date of this Act. Any such action must be 

21 iiiStitUted not later than one hundred and eighty days after 

22 the effective date of this Act or after the mailing of notice by 

23 the Administrator to the last known address of a claimant of 

24 the right to bring such a civil action, whichever occurs latet. 



ttit 1959 iii 



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SECTION BY SECTION ANALYSIS OF H.R. 1959, THE VETERANS' ADhaNISTRATlON 
ADJUDICATION PROCEDURE AND JUDICIAL REVIEW ACT 



TITLE I~ADJUDICATIONS PROCEDURES 



Section 101 



Provides that an individual claiming a veterans' benefit has the burden of 
submitting evidence sufficient to justify a belief that the claim is well- 
grounded. The Veterans' Administration must assist the claimant in developing 
pertinent facts. Affords the benefits of the doubt to the claimant when there 
is an approximate balance between positive and negative evidence on the merits 
of an issue. 

Section 102 



Provides that subpenas of witnesses in matters within the jurisdiction of 
the Veterans' Administration may be served either by delivery of the subpena in 
person, or by registered or certified mail. 

Section 103 



Makes certain changes In title 38 of the U.S. Code aimed at the timely dis- 
position of cases before the Board of Veterans' Appeals. Expands the Board from 
a maximum of 50 members (other than the Chairman and Vice-Chairman) to 65 mem- 
bers. Requires the Chairman to report to appropriate Congressional committees 
by October 1, 1983, and annually thereafter, on the activities of the Board dur- 
ing the previous fiscal year, and on projected activities for the current and 



118 



CRS-2 

following fiscal year. Requires the annual report to Include specific Informa- 
tion on the caseload of the Board, and to provide an evaluation of the ability 
of the Board, given the existing and projected personnel levels, to dispose of 
cases in a timely manner. 

Section lOA 

Redesignates "associate member" of the Board of Veterans' Appeals as 
"member. " 

Section 105 

Provides that the claimant be made aware of, and be given the opportunity 
to be heard concerning any new information made available to the Board of Veter- 
ans' Appeals by the Armed Service Department concerned, on the basis of which 
the Board could issue a conclusion contrary to its initial determination on a 
claim. 

Section 106 

Provides certain statutory protections for persons appealing a decision 
on a claim by the Veterans' Administration. Provides that the claimant be af- 
forded an opportunity for a hearing prior to a final decision by the Board of 
Veterans' Appeals, and that the Board's decision be based solely on the evidence, 
material of record in the proceeding and on applicable law. Authorizes the 
Board to reopen a claim it previously disallowed on the basis of any new and ma- 
terial evidence, even In cases that a disallowance had been upheld after judi- 
cial review. Requires the Board to promptly mall to the claimant notice of its 
decision, which must include a statement of the Board's findings and conclusions 
as well as the order granting or denying relief. 



119 



CRS-3 



Section 107 

Strikes provision of current law requiring the Board of Veterans' Appeals 
to base Its decision on the entire record. 

Section 108 

Requires the Board of Veterans' Appeals to arrange for an advisory medical 
opinion when two physicians substantially disagree on an Issue pertinent to a 
case. If the opinion Is requested by the claimant, and after the Board has taken 
appropriate action to attempt to resolve the disagreement. If the Board denies 
the claimant's request for an advisory medical opinion, it must provide its rea- 
sons for such a denial. The Board's decision in this regard is final, and not 
subject to judicial review. 

Section 109 

Establishes new sections of veterans' law concerning adjudication of veter- 
ans claims to benefits. Authorizes the Administrator of Veterans' Affairs to 
administer oaths, examine witnesses and receive evidence — including any evidence 
that might be inadmissible in judicial proceedings — In connection with the con- 
sideration of a claim to benefits. Sets forth certain rights of a claimant or 
of his or her representative appearing before the Board of Veterans' Appeals to: 
examine case files; present witnesses and evidence; make oral arguments and sub- 
mit briefs; present medical opinions; and serve written interrogatories. Autho- 
rizes persons to whom interrogatories are served to file an objection, and re- 
quires the Administrator to evaluate the objection and issue an order directing 
the question to be answered as served or after modification, or directing that 
the question not be answered. Authorizes the Administrator to subpena a person 
to appear at a deposition to respond to an interrogatory, if there is no response 
to the interrogatory within 30 days. Provides for the disqualification of a 



120 



CRS-4 

Veterans' Administration employee from considering a claim on grounds of personal 
bias or some other cause. Provides access of all parties to the record of a 
case before the Board, including access to transcripts or recording of testimony. 
Provides that adjudication and hearing procedures prescribed in title 38 of the 
D.S. Code and in regulations issued pursuant to that title are exclusive with 
respect to hearings, investigations and other proceedings connected to claims 
for Veterans' Administration benefits. 

When a claim to veterans benefits is denied, requires the Administrator of 
Veterans' Affairs to apprise the claimant and the claimant's authorized repre- 
sentative of the claimant's procedural rights through written notice at each 
stage relating to the disposition of the claim. 

Section 110 

Requires the Administrator, within a year after the enactment of the legis- 
lation, to conduct a two to three year study of alternative methods for the re- 
solution of a claim for which a notice of disagreement had been filed. The two 
alternative methods to be studied are: (1) an intermediate-level adjudication 
process under which a hearing is held on the claim at the agency of original 
jurisdiction before a panel of three Veterans' Administration employees who 
render a decision and prepare a new statement of the case; and (2) an enhanced 
schedule of visits by a panel or panels of the Board of Veterans' Appeals to 
conduct formal, recorded Board hearings. Requires the Administrator to issue a 
report to Congress on the results of the study including the relative costs of 
the two approaches, the impact on the workload of the regional offices and on 
the caseload of the Board of Veterans' Appeals, and recommendations for adminis- 
trative and legislative actions as may be indicated by the study. 



121 



CRS-5 



TITLE II— VETERANS' ADMINISTRATION RULE MAKING 



Section 201 



Subjects the Veterans' Administration rule making to the requirements of 
the Administrative Procedures Act (5 U.S.C. 553). 

TITLE III — JUDICIAL REVIEW 
Section 301 



Makes technical amendments to section 211(a) of title 38 concerning the 
finality of decisions by the Administrator of Veterans' Affairs to accommodate 
the new provisions authorizing judicial review of claims to veterans' benefits 
which are established by the legislation. 

Section 302 



Adds a new chapter 72 to title 38 authorizing judicial review of claims to 
veterans' benefits. Authorizes claimant to obtain a review by a U.S. district 
court of an adverse ruling on most claims to veterans benefits (exceptions are 
life insurance claims under chapter 19, and claims to housing and small busi- 
ness loans under chapter 37 of title 38) within 180 days after receipt of a de- 
termination from the Board of Veterans' Appeals or a dismissal of an appeal by 
the Board. Limits judicial review only to claims originally filed up to the 
last day of the fifth fiscal year a^ter the effective date of the legislation. 

Empowers the court to enter a judgment or remand the cause. Requires the 
reviewing court to: (1) decide all relevant questions of law and regulations; 

(2) compel actions unlawfully withheld by the Administrator of Veterans' Affairs; 

(3) hold unlawful and set aside decisions by the Administrator found to be arbi- 
trary, contrary to constitutional right, power privilege or immunity, in excess 
of statutory authority, or without observance of a procedure required by law. 



122 



CRS-6 

Upon finding the Administrator's actions were arbitrary, capricious or an abuse 
of power, prior to entering a judgment reversing the decision the court must re- 
mand the case to the Administrator. 

Mandates that, at the request of the Administrator, filed prior to the time 
specified for the Administrator to file his answer, a single remand of a case 
for review by the Administrator will be permitted. If the Administrator does 
not complete the review within 90 days the case Is returned to the court. After 
the Administrator files his answer, the court may remand the case to the Admin- 
istrator for further action. After the remand, and any further action required 
of the Administrator, requires the Administrator to modify, supplement, affirm 
or reverse original findings on a case, and file the decisions with the court 
for its review. The decisions of the D.S. district court pursuant to the chap- 
ter are subject to appellate review In the same manner as other civil actions. 

Section 303 

Makes technical amendment to 28 U.S.C. 1346(d) which precludes the juris- 
diction of U.S. district courts In civil actions involving claims for a pension 
to except the judicial review of veterans' benefit claims as authorized by the 
new chapter 72 of title 38. 

TITLE IV — ATTORNEYS FEES 

Section 401 

Authorizes the Administrator of Veterans' Affairs to approve fees for at- 
torneys representing persons claiming veterans' benefits. Limits attorneys fees 
to $10 for representation involving a claim resolved before a statement of case 
is received; and for a claim resolved thereafter, $500 or a greater amount set 
by regulation or approved by the Administrator; or if the attorney has agreed to 



123 



CRS-7 

payment only upon a favorable decision on the claim, 25 percent of any total 
past-due veterans' benefits awarded. 

Authorizes the U.S. district court to determine reasonable fees for attor- 
neys representing claimants receiving a favorable action after judicial review. 
In cases in which there was an agreement that the attorney would receive payment 
only upon the favorable outcome of a judicial review, the attorney's fee Is lim- 
ited to 25 percent of any total past-due benefits awarded to the claimant. If 
there is not a favorable outcome to the case, the court may approve a fee for 
the attorney, not to exceed $750. Authorizes the Administrator to withhold a 
portion of past-due benefits only for attorneys' fees approved under the section. 
Authorizes the review by a U.S. district court of a decision on an attorney's 
fee, either by the Administrator or by the court. 

Section 402 

Subjects persons intending to defraud, deceive, mislead or threaten a claim- 
ant to or beneficiary of veterans benefits to criminal penalties. 

TITLE V — EFFECTIVE DATES 

Section 501 

Establishes the effective date of the legislation as the first day of the 
first month beginning 180 days after the enactment. 

Section 502 

Authorizes judicial review of decisions of the Board of Veterans' Appeals 
rendered between January 1, 1977 and the effective date of the Act if the action 
is instituted not later than 180 days after either the effective date of the Act, 
or the mailing of a notice by the Veterans' Administration advising the claimant 
of the right to a judicial review of a decision, whichever is earlier. 



124 



Testimony of Senator Alan Cranston 

Ranking Minority Member 

Senate Committee on Veterans' Affairs 

before the 

Subcommittee on Oversight and Investigation • 

Committee on Veterans' Affairs 

House of Representatives 

July 21, 1983 

As a strong, long-time supporter of legislation to provide for 
judicial review of VA decisions denying claims for benefits, I am 
delighted to appear before this Subcommittee this morning to express 
my support for that legislation. 

Mr. Chairman, I congratulate you for scheduling this hearing and 
want to thank you very much for this opportunity to testify before you. 

During this Subcommittee's oversight hearings on the VA judicial 
review issue during the 96th Congress, I submitted an extended state- 
ment in which I set forth in some detail the reasons for my support 
for judicial review legislation. Because that statement is included 
in the printed record of that hearing -- beginning on page 309 -- I 
will not repeat the material in that statement. Rather, I will discuss 
briefly a few, selected points that I believe should be addressed in 
any consideration of providing judicial review for VA decisions. 

Before I begin that discussion, let me quickly update the record 
regarding the Senate bills that have moved forward in this area since 
the time of my earlier testimony. At that time, S. 330 had been passed 
by the Senate and was pending in the House. In the next Congress, the 
legislation introduced" on this subject in the Senate was S. 349. The 
Senate Committee on Veterans' Affairs again held a hearing and in June 
of last year reported the measure with some further amendments designed 
to reflect more directly the Committee's intention with respect to 
attorneys' fees and the appropriate scope of judicial review. This 
measure was passed by the Senate last September. In this Congress, the 
provisions of that measure were reintroduced in S. 636. The Veterans' 
Affairs Committee reported this bill on May 18 with minor amendments, 
and it was passed by the Senate on June IS. 

A Matter of Fairness to Veterans 

The starting point for discussion about the need for VA judicial 
review legislation often involves proponents being asked to demonstrate 
the problems with the current system that need to be remedied through 
the judicial route. Although I am fully able to respond to the issue 
when it is posed in this way -- and I will mention some points in that 
regard in a few minutes -- I do not believe finding fault with the 
current system is a necessary step in making the case for judicial 
review. Rather, I believe the appropriate first question is whether 
there is any continuing reason -- putting to one side the question of 
whether there ever was a valid reason -- for denying veterans the same 
right of access to court review of VA benefits decisions that is 
available in the case of virtually every other federal benefit. 
Certainly there are some restrictions in current law on access to 
judicial review of certain federal agency actions but only one area -- 
federal employee workers' compensation benefits -- is at all analogous 
to VA benefits. Even though there are some differences that might 
justify the limitation on court review of federal workers' compensation 
cases, I am not satisfied that it is an appropriate restriction in that 
area either. In any event, that issue is not one that the Veterans' 
Affairs Committees have any jurisdiction to address. 

When the issue is posed this way -- why should veterans be denied 
rights available to others in their dealings with the Federal Govern- 
ment -- I have never heard a satisfactory answer justifying maintaining 
the current-law preclusion. I realize that concerns have been expressed 
that judicial review would have an undue impact on the agency's current 
claims adjudication processes. I have also heard concerns that pro- 
viding for judicial review would make the VA claims process more 
adversarial, would create unnecessary delay, and would cost veterans 
money in the form of attorneys' fees. Although I fully recognize the 
genuineness of these concerns, I do not believe they are well-founded. 



125 



- 2 - 

It is possible that providing for judicial review and doing 
nothing else could have an untoward effect on the current VA system. 
However, the legislation that has been developed in the Senate contains 
numerous provisions that have been designed expressly to avoid that 
result. These provisions in S. 636 would ensure that, to the extent 
feasible, the VA's current, desirable adjudication practices and pro- 
cedures would be protected by providing a statutory basis for them. 
In this way, not only would current processes be protected in the event 
of judicial review, but they would actually be strengthened by being 
set out in law rather than being based on regulations or, in some cases, 
on no more than informal past practice. 

With reference to the concerns about judicial review causing undue 
delay or about it somehow making the veteran and the agency adversaries, 
it is important to remember that under S. 636 judicial review would be 
available only after a veteran's claim has been turned down by the 
Regional Office, and, on appeal, by the Board of Veterans' Appeals. 
At that point, it is difficult to see how providing for judicial review 
could create any delay. The VA proceedings would have run their normal 
course. A process no longer going anywhere can't be delayed. Moreover, 
a veteran whose claim has been finally denied upon appeal would not 
become an adversary of the VA by virtue of having court review available. 
Once the claim is finally denied, a dispute clearly exists. Courts 
don't create adversarial situations; they resolve them. 

Regarding attorneys' fees, to me it's almost incomprehensible that 
the current law limit of $10 on the amount that an attorney can be paid 
has survived to this time. Whatever behavior characterized the legal 
profession at the time the original limitation was enacted following 
the Civil War, it is no longer credible to insist that attorneys would 
prey on innocent veterans. I also am unable to accept the view that 
veterans as a class are so unable to protect themselves that there 
needs to be a barrier erected in law between them and attorneys. Let 
me be clear -- I do not believe that most veterans with claims before 
the VA should be advised to seek the assistance of an attorney. Certainly 
my first advice to a veteran with such a claim is to contact a veterans 
service officer. But the existence of that superb resource is not a 
reason for totally precluding a veteran from seeking to obtain the 
services of an attorney if the veteran so wishes. On this point, I 
note that S. 636 as passed by the Senate would not lift the $10 limit 
in a particular case until after the veteran has received an initial 
BVA decision. 

1 want to address one final point that is sometimes mentioned as 
a reason for continuing the bar to judicial review -- the impact of a 
new class of claimants on the federal judiciary. Without detailing 
the various arguments on this point -- and there have been widely 
differing views on this point expressed before our Committee - - I do 
not understand why veterans and others with claims before the VA should 
continue to be discriminated against and denied important rights because 
treating them fairly might enlarge the responsibilities of the court 
system. If the Federal court system is overburdened, the Congress 
should address that problem on an equitable basis by expanding available 
resources or limiting access to court on some basis that applies to all 
citizens. It is blatantly unfair and arbitrary to deal with perceived 
problems in the courts by singling out veterans for exclusion with 
respect to benefits earned by service in the military. 

Continuing Need 

In the statement I submitted to the Subcommittee in 1980, I dis- 
cussed reasons why I believed that there was a need for judicial review 
legislation. I believe the general reasons I outlined then -- ensuring 
fairness to individual claimants and providing a basis for the review 
of questionable actions restricting VA benefits -- continue to be valid. 
I am particularly concerned with reference to the need to provide 
veterans affected by general agency decisions and practices restricting, 
withholding, or withdrawing VA benefits -- actions that seem to be 
increasing in frequency as pressure continues in the Executive Branch 
to realize cost savings in current programs -- with a basis to challenge 



25-550 O— 83- 



126 



such actions. There have been numerous examples of such actions in the 
recent past -- actions by the agency to restrict access to health care 
in the case of military retirees; attempts by the VA, at the direction 
of the Office of Management and Budget, to restrict beneficiary travel 
reimbursement to eligible veterans; allegations that some VA stations 
are applying overly stringent standards in cases in which Vietnam 
veterans are seeking to be granted service connection for post- traumatic 
stress disorder; efforts by the VA to collect for the cost of health 
care provided to veterans who happen to be VA employees; and the VA's 
drawing overly restrictive regulations to implement the targeted GI 
bill delimiting date extension enacted in Public Law 97-72 as well as 
the radiation-exposure health-care eligibility authority enacted in 
that same Public Law. 

In each of these cases and in other similar cases, the lack of 
access to court review has serious implications. Our two Committees 
do their utmost to oversee the activities of the VA. But the limited 
resources of our committees do not allow for thorough review of and 
congressional action to resolve satisfactorily all of the issues arising 
in such a large and complex agency. In addition, I do not believe that 
aggrieved veterans should have to be dependent for relief on congressional 
committee processes which, for all their virtues, cannot be fairly said 
to be designed to achieve or to be capable of systematically achieving 
the evenhanded dispensation of justice in these situations. We are 
legislative bodies. We cannot effectively be the courts of last resort. 

However, if the veterans affected by various VA actions had access 
to court to challenge agency actions, the individuals most directly 
affected by these actions would be guaranteed the opportunity to be 
heard by an entity outside of the VA and to obtain relief in appropriate 
cases. 

In making this point, I do not want to be understood as suggesting 
that the VA is wrong on all or any of the issues I have noted, although 
I have stated my strong disagreement with the agency's actions in a 
number of these areas. Rather, I am suggesting that outside review by 
the independent branch of Government established in our constitutional 
framework with the special responsibility of determining whether govern- 
mental action is lawful and fundamentally fair would benefit all parties 
involved. The VA would have its processes subjected to appropriate 
scrutiny and, when the agency's actions were upheld, it would be 
vindicated. Likewise, to the extent that the agency's actions were 
held unlawful or fundamentally unfair, remedial steps could be taken 
to insure that the agency is meeting its responsibilities fully. 

I am concerned that agency action that does not have the benefit of 
outside scrutiny may fail, over the long haul, to address fully the 
legitimate needs of those the agency exists to serve. Providing for 
judicial review would be most valuable in helping to ensure the desired 
result. 

As a final point on this issue of providing for review of general 
agency action, the VA recently testified to our Committee that there is 
no need for legislation in this area because of a general trend in 
court decisions permitting veterans to challenge VA regulations. I do 
not agree with this analysis for two important reasons. First, the 
court decisions on this point have varied from one court of appeals to 
another. A clear legislative provision -- as in S. 636 -- would 
eliminate any confusion and any difference in result. Second, despite 
the VA's acknowledgement that some courts of appeals clearly have allowed 
veterans to bring actions challenging VA regulations on other than 
constitutional grounds, the United States Government continues to raise 
the title 38 statutory bar to judicial review in VA cases not involving 
individual claims for benefits. Again, a clear statutory basis for 
judicial review would end this confusion. 



127 



The last matter that I want to touch on briefly involves the 
appropriate scope of review that a court would apply in the review of 
a VA fact decision. This issue has been a matter of long and involved 
discussion in our Committee, and I will not attempt to go over all that 
background. Rather, the one point I want to stress on this issue is my 
belief that it is vital that whatever scope of review is chosen must 
provide some basis for court review of questions of fact. The legis- 
lation passed by the Senate this year -- and during the last Congress 
as well -- includes a very narrow scope of review of factual issues. 
Providing such a very narrow basis on which a court could review a 
decision by the BVA on a question of fact reaffirms the BVA's role as 
the expert final arbiter of such questions. However, by refusing to 
limit the review strictly to questions of law and thus preclude all 
review of questions of fact -- an approach that some have advocated -- 
S. 636 affords an opportunity to correct truly egregious decisions on 
fact questions. Although I believe that such decisions are rare, I do 
not believe that total preclusion of review of facts would be appro- 
priate or productive. 

Again, please accept my thanks for the opportunity to appear before 
you on this important issue. I look forward to continuing to work with 
the Chairman and all the members of the Committee on this and other 
matters. 



128 * 
U.S. Senator i!^^^^^^^/^t:-^-^:^^>v^?^^>;^^■^J:^-^:^ r^'.>T-^v.~.v^.-. .^.. -j- -■:■ 

GARY HART 

ftis^^g^i^ffP^Mi^MJimmjma^^ Colorado 

July 21, 1983 Contact: Beth Smith 

(202) 224-5852 

TESTIMONY BY SENATOR GARY HART 

SUBMITTED TO THE HOUSE VETERANS AFFAIRS COMMITTEE 

RE: PENDING LEGISLATION TO GRANT JUDICIAL REVIEW OF VETERANS 

ADMINISTRATION BENEFIT DECISIONS AND OTHER MATTERS 



Mr. Chairman, I would like to thank you and the other members 
of the House Veterans Affairs Committee for scheduling these hearings 
to examine the concept of judicial review of Veterans Administration 
benefit decisions and other essential improvements in the administra- 
tive procedures of the VA. 

I appreciate the opportunity to submit testimony in support of 
H.R. 2936, as amended by the Senate, and other similar legislation 
now under consideration by this Committee which will allow for judicial 
review of VA decisions. 

Mr. Chairman, I have long been a proponent of reform of the 
adjudication procedures of the Veterans Administration. In May of 
1976, I first introduced legislation to open the VA to judicial 
review. Since that time I have persisted in my efforts to ensure 
that the American veteran be afforded all his or her constitutional 
rights to the due process of law in dealings with the Veterans 
Administration. I first became involved with this effort at the 
urging of Colorado Vietnam veterans who felt that the denial of the 
right to judicial review relegated veterans to the status of second- 
class citizens. These Vietnam veterans could not understand why they 
were denied the right to court review of their claims, if denied by 
the VA, when almost every other Federal bureaucratic action affecting 
any corporation, welfare recipients. Social Security recipient and 
prisoner is afforded judicial review by the Federal courts. 

Mr. Chairman, as you know, the United States Senate has passed 
in the 96th, 97th, and in the 98th Congresses legislation that will 
reform the Veterans Administratioji adjudication procedures and grant 
judicial review of those decisions. I am proud to have been the 
principal sponsor of those bills and I am grateful for the support 
that these bills have received from my Senate colleagues like Senator 
Cranston and Senator Simpson, Chairman of the Senate Veterans Affairs 
Committee. 

Mr. Chairman, H.R. 2936, which was amended in the Senate to reflect 
the text of S. 636, passed the Senate on June 15, 1983. The intent 
of H.R. 2936, as amended, is to establish certain procedures for the 
adjudication of claims for benefits under laws administered by the 
Veterans' Administration; to apply the provisions of section 553 of 
title 5, United States Code, to rulemaking procedures of the Veterans' 
Administration; to provide for judicial review of certain final decisions 
of the Administrator of Veterans' Affairs; to provide for the payment 
of reasonable fees to attorneys for rendering legal representation 
to individuals claiming benefits under laws administered by the Veterans' 
Administration. 

Mr. Chairman, it is time for this Committee and the members of 

the United States House of Representatives to follow the Senate in 

finally lifting the preclusion to judicial review of certain VA benefit 
decisions. 

Mr. Chairman, the central issue in the debate on this legislation 
is whether we are going to afford the American veteran the same 
constitutional rights we grant other citizens in this country. Judicial 
review is important in granting the veteran adequate protection of his or 
her rigths as a citizen, and it will provide improved oversight of VA 
procedures and activities by an independent body. 



^ 



MORE 



129 



It is important to note that H.R. 2936 will not diminish in 
any way the important role played by the veterans service organizations 
in their efforts to assist claimants before the VA. The veterans 
service officers, which presently provide highly effective, free 
service to veterans, will continue assisting veterans in the filing 
of initial claims with the agency. 

The $10.00 limitation for payment of attorneys who represent 
veterans in making original claims before the local VA rating board 
and the initial decision of the Board of Veterans Appeals. Clearly, 
veterans will ' continue to use the services provided by the national 
veterans service offices or VA benefit counselors in the initial 
stages of the VA claim and appeal procedures. If the veterans' 
claim is rejected by the Board of Veterans Appeals, he or she may want 
to secure the services of an attorney to develop evidence and to prepare 
an appeal for reconsideration by the Board of Veterans Appeals or to 
seek relief in the Federal courts. 

Mr. Chairman, it is becoming increasingly more evident that the 
preclusion of judicial review of VA decisions and the denial of 
reasonable attorney fees is based on outmoded assumptions. The 
Federal courts have been moving in the direction of expanding their 
jurisdiction over VA actions which were formally precluded from 
judicial review. 

For example, in JOHNSON vs. ROBINSON, the Supreme Court held 
that section 211(a) Title 38 U.S.C. (precluding judicial review) 
cannot be construed to deny justice to those who challenge the 
constitutionality of statutes providing veterans benefits. 

In 1970, the Supreme Court held in GOLDBERG vs. KELLY that 
recipients of welfare had a property right to their payments. 
Welfare was held to be not just a mere "gratuity" but a statutory 
entitlement. This decision established that welfare recipients 
have more right to their benefits than veterans. 

In the case of WAYNE STATE UNIVERSITY vs. MAX CLELAND, et. al., 
the Sixth Circuit Court of Appeals held that section 211(a) is not 
a bar to judicial review of the constitutionality of rules and 
regulations promulgated by the Administrator of Veterans Affairs 
or his authority to promulgate regulations. 

MrT Chairman, the trend of the Federal judiciary in a number of 
key decisions is clearly toward more protection of the due process rights 
of veterans. It is the responsibility of Congress to take action now 
to restructure the current VA adjudication procedures as outlined in 
H.R. 2936, not only to ensure that veterans' rights are protected 
in the process but also to protect the agency from the potential 
of court imposed reforms that may overburden the agency with additional 
procedures. 

Mr. Chairman, H.R. 2936 will bring the Veterans Administration 
procedures in compliance with these recent Federal court decisions 
and will grant our veterans, many of whom feel betrayed, their full 
measure of constitutional rights for which they served this nation. 

The fundamental issue in this legislation is simple justice 
for our veterans. To deny any citizen access to an attorney, to 
isolate a Federal agency from judicial review and deny judicial 
oversight of the rules and regulations promulgated by a Federal 
agency goes against the very principles of our constitutional 
system. 

I strongly urge the members of this Committee to support this 
legislation. I appreciate the opportunity to submit this testimony 
today. 



<«f 



130 



Judicial Review of Veterans Claims 



TESTIMONY OF 



THE HONORABLE JOHN J. LaFALCE 



before the 



Subcommittee on 
Oversight and Investigations^ 
Committee on 
Veterans' Affairs 



July 21. 1983 



131 



r^R. Chairman, 

Thank you for inviting me to testify this morning before 
THE Subcommittee on Oversight and Investigations on the issue 
OF judicial review of veterans claims. 

Mr. Chairman, every American who believes that he or she 
ha? been unfairly judged by a court of law or by a federal admin- 
istrative agency is entitled to judicial review of the court order 
or administrative decision. Every At-ierican except veterans dealing 
with the veterans administration (VA). 

Veterans, Americans who have fought and served to protect 
and defend the constitution, are denied the basic constitutional 
right of due process of law when dealing with the VA. 

I introduced. A BILL DURING THE 97tH CoNGRESS--H . R. 1331— TO 
correct this GLARING INEQUITY, AND REINTRODUCED IT AGAIN DURING 

THE 98th Congress--H.R. 3300— IN each instance, both for myself 
AND for the Vietnam-Era Veterans in Congress Caucus (VVIC). 



132 



I WOULD ALSO LIKE TO RECOGNIZE THE EFFORTS OF OUR COLLEAGUE 
FROM CaLIFORNIA--Mr. EdWARDS, a MEMBER OF THIS SUBCOMMITTEE--WHO 
HAS INTRODUCED SIMILAR LEGI SLATION--H . R. 1959--TO PROVIDE FOR 
JUDICIAL REVIEW OF VA CLAIMS DECISIONS. I WELCOME HIS LEADERSHIP 
ON THIS MATTER. 

Our BILLS ARE DESIGNED TO REDRESS A GREVIOUS WRONG THAT HAS 
BEEN PERPETRATED ON VETERANS FOR THE PAST FIFTY YEARS. VETERANS 
WHO BELIEVE THAT THE VA HAS WRONGFULLY OR ILLEGALLY DENIED THEM 
THE DISABILITY COMPENSATION WHICH THEY EARNED, AND TO WHICH THEY 
ARE ENTITLED BY LAW, ARE DENIED THE RIGHT TO APPEAL THEIR CASES 
TO A FAIR AND IMPARTIAL COURT OF LAW. 

- .%. Chairman, when individuals- are ANCEr^ED dy a i:cur!T decis-icn -- 

OR an administrative ORDER, WE OFTEN HEAR THE RETORT "I AM GOING 
TO FIGHT THIS ALL THE WAY TO THE SUPREME CoURT . " NoW WE KNOW THAT 

THE Supreme Court hears few cases a year, and that the probability 
OF it hearing any given case is remote. But, the ability to 
appeal to a higher authority—in this case the highest court in 

THE LAND--IS A FUNDAMENTAL RIGHT THAT ALL AMERICANS ENJOY. It 
carries WITH IT NOT ONLY A PROCEDURAL SAFEGUARD AGAINST THE ABUSE 

of judicial and administrative power, but also a symbolic value that 
is fundamental to the definition of our democracy. 

Veterans who feel that they have been unjustly denied 

COMPENSATION BENEFITS ENJOY NO SUCH SAFEGUARD. ThEY ENJOY NO 

SUCH SYMBOLIC REWARD. FoR THE VETERAN, THERE IS NO RIGHT 

TO APPEAL VA DETERMINATIONS "ALL THE WAY TO THE SUPREME COURT." 



133 



Indeed, there is no right to appeal VA decisions to mi court! 
Veterans are also effectively denied the right to hire 

AN attorney to REPRESENT THEM IN THEIR CASES BEFORE THE VA's 
COMPENSATION BUREAUCRACY. PRESENT LAW MAKES IT A CRIME FOR AN 
ATTORNEY TO CHARGE A VETERAN MORE THAN $10 FOR TOTAL SERVICES 
RENDERED IN A VETERAN'S CASE. I WOULD LIKE TO ASK THE MEMBERS 
OF THIS SUBCOMMITTEE WHO ARE LAWYERS AND WHO PRACTICED LAW 
BEFORE BEING ELECTED TO CONGRESS HOW MANY CASES THEY HANDLED FOR 
$10. I WOULD LIKE TO, BUT I DON'T HAVE TO, FOR THE NUMBER IS 
SMALL INDEED. ThE COSTS OF PREPARING SUCH A CLAIM WOULD FAR 
EXCEED $10, FRIGHTENING AWAY ALL BUT THE MOST ALTRUISTIC AMONG 
US. 



Veterans are also denied the protection of the Administrative 
Procedures Act (APA). This law, enacted in 1946, was designed 
TO protect the rights of Americans from being violated by agencies 

OF THE federal GOVERNMENT. As THE GOVERNMENT HAS GROWN, THE NEED 
FOR THESE PROTECTIONS HAS GROWN. EvERY MEMBER OF THIS BODY 
PLAYS AN OMBUDSMANS ROLE FOR HIS CONSTITUENTS. We LOOK AFTER 
SOCIAL SECURITY CHECKS THAT ARE NOT DELIVERED, WE HELP OUR 
CONSTITUENTS AND THEIR FAMILIEIS IN FOREIGN COUNTRIES WITH 
IMMIGRATION MATTERS, WE TRACK DOWN REFUND CHECKS FROM THE IRS, 
AND WE MAKE SURE MEDICARE BENEFITS ARE PROMPTLY PAID. BuT MOST 
OF ALL, IT IS OUR DUTY TO BE SURE THAT OUR CONSTITUENTS ARE AFFORDED 
EVERY AVAILABLE SAFEGUARD WHEN DEALING THE FEDERAL BUREACRACY. 

In this REGARD, MR . CHAIRMAN, WE HAVE FAILED OUR VETERAN? WHO 



134 



AREy BY LAW, DENIED THESE BASIC PROTECTIONS. 

I AM HERE TODAY TO TELL THIS SUBCOMMITTEE THAT IT IS TIME 
TO CHANGE OUR WAYS. It IS TIME TO BRING VETERANS UNDER THE BROAD 

umbrella of constitutional and statutory protections that 
shield every other american from the arbitrary and capricious 
decisions of the federal bureaucracy. 

The House of Representatives has been remiss in this regard. 
On several occasions, our colleagues in the Senate have passed 
veterans judicial review legislation, but we have failed to 

FOLLOW their LEAD. NOST RECENTLY, THE SENATE, ON JuNE 15, 1983, 

passed Senator Gary Hart's (D-CO) judicial review Bri_L--5. u3&-^"^ 

AS A SUBSTITUTE FOR A HoUSE-PASSED BILL--H.R. 2936— THAT WOULD 
EXPAND THE SIZE OF THE VA'S BOARD OF VETERANS APPEALS (BVA) . 
We now HAVE AN OPPORTUNITY TO ACCEPT THE SeNATE-PASSED MEASURE 
OR CONSIDER BILLS THAT HAVE BEEN INTRODUCED IN THE HoUSE. 

Before outlining my own bill— H. P. 3300--let me say that 
IF the Veterans' Committee were to accept the Senate-passed 

LANGUAGE IN CONFERENCE, I WOULD BE DELIGHTED TO SUPPORT YOUR 
EFFORTS. My BILL, AND THAT INTRODUCED BY ReP. EdWARDS ARE 

worthy substitutes. but in this instance, the need to act 
far outweighs pride of authorship. 

Nonetheless, H.R. 3300, does contain several provisions 

THAT should BE INCLUDED IN VETERANS JUDICIAL REVIEW LEGISLATION: 



135 



including provisions to: 

-codify^ for va adjudication purposes, the burden of 
proof and reasonable doubt standard currently provided for by 
va regulation. 

-establish that if an approximate balance of positive and 
negative evidence exists regarding the merits of a claim. the va 
is to resolve such doubt in favor of the claimant 

-increase the size of the board of veterans appeals from 
50 to 55 members. 

-require that the board provide notice to a claimant and an 
opportunity for a rehearing before a decision may be based on new 
evidence. 

-remove the current requirement that new material that would - 
allow the board to reopen a previously denied claim be in the form 
of official reports. and 

-eotaslish new procedural rules for adjudication hearings 
regarding admi ssability of evidence. procedural rights of claimants, 
and the right of a claimant to obtain and examine a copy of the 
hearing record. 

These are important provisions. .1r. Chairman, and they 

SHOULD BE included IN LEGISLATION ADOPTED BY THE VETERANS COMMITTEE 

AND THE House. But there are also provisions of H.R. 3300 that 

MUST BE included IN ANY SUCH LEGISLATION. 

First, the VA's rulemaking procedures must be included under 



136 

6 



the provisions of the administrative procedures act . 

Second, allowable attorney's fees must be reasonable 
so that veterans can be fully represented by legal counsel before 
the VA. I do not wish to downgrade the quality or the value 
OF the service performed by veterans organizations in providing 
technical assistance to veterans. This free service is invaluable 
in stepping the veteran through the VA's bureaucratic maze. 
But it is not legal counsel. If we are to give veterans access 
to the courts, and I believe we must, we must increase the $10 
dollar limitation on legal fees. H.R. 3300 raises the limit to 
$500 and allows for additional fees in extraordinary cases. 

Finally, and at the very heart of the matter, H.R. 3300 
provides for judicial review of VA decisions in the Federal court 
system. 

Judicial review provided for in the bill is neither unlimited 
nor unbridled. ' Judicial review of a final decision must be sought 
within 180 days of the Veterans Appeals Board's mailing of notice 
OF its decision. My bill provides that the court may decide 
questions of law and interpret constitutional, statutory, and 
regulatory provisions, but that questions of fact will not be 
subject to a trial ul novo . 

These are not only reasonable limitations, but they are consistent 
with the rights and privileges enjoyed by all other Americans 



137 



WHEN APPEALING ADMINISTRATIVE DECISIONS TO THE COURTS. 

Mr. Chairman, I woull-like to close my testimony by 

NOTING THAT ADVOCATES OF JUDICIAL REVIEW OF VETERANS CLAIMS 
decisions do not VIEW THE VA AS AN ADVERSARY, V'e ARE COGNIZANT 
OF THE VA'S ATTEMPTS TO PROVIDE A NONCONFRONTATIONAL FORUM TO 
RESOLVE DISPUTES, AND THE VA's PRONOUNCED POLICY OF "BENDING 
OVER backwards" TO MEET LEGITIMATE CLAIMS. BUT ANYONE WHO LENDS 

an ear to veterans who believe that they have been wrongly judged 
by the va knows that even the va makes mistakes. 

Veterans mus"!" be afforded the opportunity,, the right, tc 

HAVE their grievances AIRED IN A COURT OF LAW. We HAVE TAKEN 
this RIGHT away FROM THOSE WHO HAVE FOUGHT AND SERVED TC - 
PROTECT THE CONSTITUTION OF THE UNITED STATES, AND WE HAVE 
ALLOWED THIS INJUSTICE TO PREVAIL FOR FAR TOO LONG. 

I HOPE THAT today's HEARINGS WILL PROVIDE THE IMPETUS 
THAT IS NEEDED TO EXTEND THE CONSTITUTIONAL PROTECTION OF 
DUE PROCESS OF LAW TO AmERICA's VETERANS. If WE DO NOT FULLY 
RESTORE THE CONSTITUTIONAL RIGHTS OF THOSE SERVE, HOW CAN 
WE EXPECT, HOW CAN WE ASK, THOSE WHO SERVE TO PROTECT THE 
CONSTITUTION. 

It is time to fulfill our part of the bargain. I hope 
that this subcommittee and its parent committee give us that 
opportunity, 

Thank you. 



138 




gf prtmcnt 0f luslite 



STATEMENT 



OF 



CAROLYN B. KUHL 

DEPUTY ASSISTANT ATTORNEY GENERAL 

CIVIL DIVISION 



BEFORE 



THE 



COMMITTEE ON VETERANS' AFFAIRS 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATION 

UNITED STATES HOUSE OF REPRESENTATIVES 



CONCERNING 

JUDICIAL REVIEW OF VETERANS' CLAIMS 

ON 

JULY 21, 1983 



139 



Kr. Chairir.an, I appreciate very much the opportunity to 
appear before this subcomrr.i ttee to present the views. .of the 
Justice Department on proposals to create a right of judicial 
review for veterans' benefits. 

The Justice Department has been involved in the debate over 
the question of establishing a right of judicial review over 
veterans' benefits for several years. We are concerned with 
insuring the fairness of our government benefit programs. 
Indeed, this concern, corr.bined with our concern over the impact 
of proposals to create a new right of judicial review on the 
functioning of the federal courts, leads us to opE>ose proposals 
for judiciei review of veterans' benefits decisions. Ke believe 
thct, ultimately, the interests of veterans are not served by 
super irrpcs i ng on the present systeir. a right to appeal to our now 
t ren.endowsly overcrowded courts. Appeal to the courts is not the 
only or the sirtclest way to insure justice. Rather, a carefully 
desacned adn i ni s tr a t ive system can preserve and protect all the 
rignts provided ty law to our veterans. 

Ke w;]l not, in this statement, address at length the 
fairness of the present administrative systemi. This is a subject 
better addressed by the Veterans Administration. We noter 
however, that in the discussion of this issue over the years no 
one has alleged that the present system results in widespread 
injustice. The Senate Committee Report to a predecessor bill, 
S. 330 in the 96th Congress, noted: 



140 



-2- 



"The decision to introduce S. 330 in the 96th 
Congress and to continue committee consideration 
of judicial review legislation was not based on a 
belief that the current systeir, resulting in a 
final, unappealable decision being made by the 
Board of Veterans' Appeals, results in wide-spread 
injustices; to the contrary, there is no evidence 
that most claimants are not satisfied with the 
resolution of their claims for VA benefits." 
(Senate Rpt . #96-178, 96th Congress, Ist Session, 
May 15, 1979, pp. 23-24.) 

Judicial review of veterans' benefits decisions has been 
precluded since 1933. Act of March 23, 1933, Ch. 3, 9 Stat 48. 
Congress has repeatedly re-enacted the limitation on judicial 
review. It has, indeed, broadened the original language in 
response to atteirpts by the court to narrow this restriction on 
their review of veterans' benefits decisions. For example, in 
1970 Congress broaoenei the restriction reaffirming the reasoning 
behind it. See PL 91-376, H Fpt. *91- 1166, 9lEt Congress, 2nd 
Session, 1970 U.S. Code Congressional and Administrative News, 
3723, 3729, 3739. 

Tnis preclusion of judicial review has historically been 
supported by two policy arguirients which continue to be valid. As 
articulated by the U.S. Supreme Court in Johnson v. Robi son , 415 
U.S. 361, 370 (1974), these policies are: "First, to insure that 
veterans' benefits claims will not burden the courts and the 
Veterans Adm.inistra t ion with ' expensive and time-consuming 
litigation. Secondly, to insure that the technical and complex 
determinations of Veterans Administration policy connected with 
veterans' benefits decisions will be adequately and uniformly 
made." To these reasons might be added the desire to prevent the 
present informal, nonad versa rial procedures weighted in favor of 



141 



-3- 



the claimant from becoming excessively formal, more adversarial 
and more expensive for both the claimant and the veterans' 

program budget. 

The first reason offered in support of this restriction is, 
if anything, now more important. As the courts become 
increasingly overloaded, the delivery of justice becomes slower 
and the quality of the decision-making process declines. 

Annual filings in the district courts have increased from 
168,789 in 1980—/ to 233,065 for 1983.—/ Similarly, filings in 
the courts of appeals have increased from 23,200 in 1980^/ to 
27,946 in 1962.1-/ 

The case load burden has led to assembly-line procedures for 
disposing of cases. It has not allowed enough time for 
reflection or mastery of records. In 1975 Circuit Judge Duniway 
lamented that he and many of his brothers and sisters on the 
court "ate no lonoer able to give to the cases that ought to have 
careful attention the time and attention which they deserve." 

The Veterans Administration has estimated that the Board of 
Veterans Appeals, the last step in the administrative review 



i-/ Annual Report of the Director of the Administrative Office of 
the U.S. Courts , 1981, p. 200. Figures for 12-month period 
ending June 30, 1980. 

— / 1983 figures for 12-month period ending March 31, 1983. 
Source: Administrative Office of the U.S. Courts. 

^/ Annual Report of the Director of the Administrative Office of 
the U .S. Courts , 1981, p. 185. Figures for 12-month period 
ending June 30, 1980. 

— / Figures for 12-month period ending June 30, 1982. Source: 
Administrative Office of the U.S. Courts. 



25-550 O— 83 10 



142 



-4- 



process, hears approximately 34,000 appeals a year. Of these, 
approximately 74% are denied. It would not be unreasonable to 
expect a substantial portion of those cases to be appealed, a 
number upwards of 25,000 cases. On these assumptions, the 
proposal to allow judicial review of veterans* benefits 
determinations would increase the federal case load at the 
district court level a staggering 10 percent. An immediate need 
for additional federal judges would be an undoubted corollary. 

This would come at a time when our leading judicial 
authorities are decrying the impact of an overcrowded docket on 
the quality of justice delivered by our courts and are 
encouraging the development of alternate dispute resolution 
mechanisms outside the judicial system. The Veterans 
AdiT.inistr a t ion already has such an alternate dispute resolution 
mechanism. Veterans' benefit disputes are resolved, for the most 
part, outside of the courts, in a less formal, nonad versarial 
process which keeps down the transaction costs of the benefits 
decisions. It is our view that this should remain the case. As 
the Attorney General recently suggested: 



Such "non- j udicial" routes to justice as arbitration, 
negotiation and administrative process deserve greater 
employment as alternatives that can complement the 
judicial system.—/ 



—/ Address of William French Smith, Attorney General of the 
United States, at the University of Southern California Law 
Center, Kay 12, 1983, p. 8. 



143 



-5- 



Veterans' benefits determinations are not the only type of 
administrative determination not subject to judicial review. In 
the area of government benefits, for example, review is precluded 
under the Federal Employees Ccnpensation Act, 5 U.S.C. 8128(b). 
There is no judicial review provided for certain Medicare 
determinations. U.S. v. Ericka , 456 U.S. 201 (1982). Of course, 
the Constitution does not require judicial review of benefits 
decisions, DeRodulfa v. United States , 461 F.2d 1240 (D.C. Cir. 
1974), and the present administrative scheme does permit court 
review in veterans' cases of allegations of statutory 
unconstitutionality. Johnson v. Robison , 415 U.S. 361 (1974). 

Judicial review in an analogous area - social security 
benefits decisions - has resulted in approximately 25,000 cases 
challenging social security determinations by the end of 1982, 
with 12,045 new cases filed in 1982. This has greatly increased 
the length of time and expense involved in processing social 
security cases, from the standpoint of both the claimant and the 
Social Security Administration. The scope of review established 
for these cases has varied widely from court to court. The lack 
of familiarity of the generalist federal judges with the social 
security system has created inefficiency and even confusion in 
the way cases are handled. The system also has bred 
inconsistency. One result of the participation of the federal 
judiciary has been a lack of conformity of the rules applied in 
different sections of the country and the need to endure time- 
consuming appeals up to the Supreme Court to resolve these 
conflicts. If one of the chief objectives of a fair benefit- 



144 



-6- 



determination system is uniformity of result, the social security 
system certainly proves that provision for judicial review does 
not ensure consistency. 

In addition to the added burden placed on the courts, you 
should be aware that the Justice Department would require 
enhanced resources to handle the increase in litigation resulting 
from judicial review of veterans' benefits determinations. In 
1978 the Justice Department told the Senate Veterans' Affairs 
Committee that 21 attorneys and 24 clerical positions would be 
required to handle the then-estimated 4,600 cases that it was 
predicted would arise under the bill under consideration at that 
time. S. Rep. No. 96-178, 96th Cong., 1st Sess. 131. This was 
estimated in 1978 to cost $1,420,000. Of course, costs have 
greatly increased since these estimates were made. Moreover, 
recent estimates suggest that the total number of cases filed 
under the bill would greatly exceed the 4,600-case estimate on 
which that five-year-old projection was based. 

If we set aside the issue of cost, however, we must consider 
whether the proposal to create judicial review of veterans' 
benefits determinations will somehow enhance the justice accorded 
veterans. It is our view that this will not happen. The federal 
courts are not the enchanted land where all wrongs will be made 
right. The federal courts do not always unerringly discern 
Congress's intended interpretation of a legislative scheme. 
Moreover, as has been true in the social security area, 
additional layers of judicial review can create inconsistencies, 



145 



-7- 



the resolution of which requires still further judicial activity 
and increased costs for the claimant, the government, and the 
judiciary. This conception of the courts as the sole 
institutional repository of fairness has led to a judicial system 
which is suffering from severe overload. To save the judicial 
system -- and to save the veterans' benefits program frcMii the 
costs, the delays and the burden of review by non-specialist 
judges across the country — this progam should be kept under a 
purely administrative system. 
Tnank you, Mr. Chairman. 



DOJisss-o: 



146 




U.S. Department of Justice 

Civil Division 



Offict of the Aulttant Attorney General 



Waxhinglon. D.C. 20530 

September 26, 1983 



Honorable G.V. Montgomery 

Chairman 

Committee on Veterans' Affairs 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Mr. Chairman: 

This is in response to questions asked of Deputy Assistant 
Attorney General Carolyn Kuhl at a hearing of the Oversight 
Subcommittee of the Veterans' Affairs Committee, on proposals to 
create a right of judicial review of veterans' benefits 
determinations, held on July 21, 1983. 

At that hearing we promised to provide information on the 
cost of providing judicial review. It is clear that judicial 
review of veterans' benefits decisions will have a significant 
budget impact on the judiciary, the Veterans Administration and 
the Justice Department. The extent of this impact will depend, 
in part, on the volume of veterans' appeals, whether review will 
require a trial de novo or a review on the record made at the 
Board of Veterans' Appeals, and whether the cases are heard in 
district court or in a special court. 

Our estimate is conservatively based on the assumption that 
the appeals process will generate 4,100 cases in the federal 
courts and that the appeals will be on the record. We believe 
that the Department of Justice will require 48 additional 
attorneys and 22 support personnel, at a cost of $4,690,000. 
This cost estimate does not reflect the additional resource needs 
of the Veterans Administration or the courts. 

We were asked how the appeal and denial rate in the 
veterans' benefits system compares with the rate in the social 
security system. We have asked the Social Security 
Administration for this information and, as soon as we obtain 
this data, we will supply it to the Committee. 

We were asked whether, in the active military, there was a 
right of appeal outside the military justice system. Under 10 
U.S.C. 876, decisions of courts martial are accorded finality and 
subsequent direct review outside the military justice system is 
precluded. It has been held that this section does not preclude 
review of allegations of violations of constitutional rights or 



147 



of allegations that the courts martial exceeded its jurisdiction, 
through collateral suits in district court or through a habeas 
corpus petition. Schlesinger v. Councilman , 420 U.S. 738, 
(1975). 

Lastly, we were asked whether we were aware of any studies 
of the impact appeals from administrative actions have on state 
courts. We have been unable to locate any such studies to 
date. We do, however, consider the social security system a 
model for the impact on the courts of appeals from administrative 
tribunals in the benefits area. We will continue to search for 
information which will help to answer this very pertinent 
question. 

We hope that this information will prove helpful to the 
Committee in its consideration of this legislation. 




e r el y , 

AUL McGfeA'TH'- 

t Attorney General 




148 




U.S. Department of Justice 

Civil Division 



Office of the Assistant Attorney General 



Washington. DC. 205 JO 



October 14, 198 3 



Honorable G. V. Montgomery 

Chairman 

Committee on Veterans Affairs 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Mr. Chairman: 

The following is in further response to a question addressed 
to Deputy Assistant Attorney General Carolyn B. Kuhl at the 
hearing held before your committee on July 21, 1983 on 
legislation to create a right to seek judicial review of 
veterans' benefits determinations. At that hearing Ms. Kuhl was 
asked what the rate of reversal was in the appeals process for 
social security cases. 

According to the Social Security Administration, the 
reversal rates at the last two stages of the administrative 
process were: 



Administrative Law Judges 
Appeals Council 



FY80 

55.8% 
4.9% 



FY81 

55.2% 
4.8% 



FY82 
52.7% 
4.4% 



The rate of reversal of the decision below in the U.S. 
District Courts was: 



FY80 



20.2% 



FY81 



24.7% 



FY82 



21.7% 



If we can be of further assistance in this matter, please 
give us a call. 



Very tr^ly yours. 




JJ/.yPAUL McGRATH 
Assi^ant Attorney General 



149 




TESTIMONY OF LT. COL. DAVID J. PASSAMANECK, USA, RET, 

NATIONAL LEGISLATIVE DIRECTOR, AMVETS 

Before The 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

COMMITTEE ON VETERANS' AFFAIRS 

U. S. HOUSE OF REPRESENTATIVES 

21 JULY 1983 

JUDICIAL REVIEW OF VETERANS CLAIMS 
(S.636, 98th Congress) 



150 



Mr. Chairman and members of the committee: 

The American Veterans of World War II, Korea and Vietnam (AMVETS) 
is pleased to present its views on the issue of judicial review of veterans 
claims. Because the invitation does not specify any particular proposed 
legislation, we will dwell on the concept of judicial review, and only 
touch on some of the ancillary issues, such as procedure, rules of evidence 
and attorney fees, which are raised by pending legislation, such as S.636. 

AMVETS is fully appreciative of the deserved description of VA adju- 
dicative proceedings as non-adversary. We believe that in most cases the 
system is administered with Skill, compassion and objectivity by VA officials, 
and that the legitimate interests of the claimants are given the respect 
to which they are entitled. We are most favorably impressed with the 
relative low cost and efficiency of the VA adjudicative system, employing 
as it does the services of trained specialist representatives of the 
service organizations to assist claimants at no cost to them. When 
we contemplate the inordinate insurmountable cost associated with litigation 
in the Federal courts, the VA system looks very good in comparison. 

The underlying issue with which we are concerned, however, when we 
consider providing access to the courts for the veteran claimant, is the 
question of whether that claimant should have the option of judicial review 
of his or her claim, in accordance with the claimant's own judgement of 
the merits of the claim and the risks and costs involved. AMVETS believes 
that claimants for non-contractural VA benefits and entitlements should have 
the same right of recourse to the court system as claimants for other 
governmental entitlements, after exhaustion of administrative remedies. 



151 



-z- 



Whether or not the veteran claimant would be better off being barred, as he 
or she now is, from judicial review, than if he or she were permitted to 
risk the cost of litigation is an interesting question for consideration 
when contemplating resort to the courts in a particular case. AMVETS 
believes that the right to take that risk belongs, however, to the 
claimant and should not be precluded by the good offices of VA adjudicators 
or service organizations, however benevolent their motives. Veterans 
are full-fledged citizens and are entitled to the same rights and privileges 
as other citizens. The idea that they must be protected from the harsh 
realities of the real world by an insulated adjudicative system is an 
insult, not only to their intelligence but to the sacrifices they have 
made to preserve the very system of justice from which they are excluded. 

As to the scope of review, the courts in Johnson v. Robison , Plato v. 
Roudebush , Wayne State University v. Cleland and other cases in recent 
years had made it clear that judicial review does in fact prevail where 
the issues pertain to the basic fairness of VA regulatory or adjudicative 
procedures. The cases, however, have not all been consistant throughout the 
Federal circuits, and legislation to clearly define the scope of permissible 
review is badly needed. The review of VA determinations should be restricted 
to the evidence of record, the constitutionality or statutory authority of 
the agency's actions and regulations and whether or not the burdens of 
proof and benefit of doubt have been properly adheared to. No one is 
seriously suggesting that the courts substitute for the professional 
fact-finding machinery of the VA adjudicative system. The claimant 
is, however, entitled to an evaluation of the significance and weight of 



152 



the evidence by an impartial tribunal, completely independent of the VA, 
after exhaustion of administrative remedies. Despite the conceded 
benevolence of the VA under the current system, the fact remains that 
in determining the outcome of claims the VA serves as judge, jury and 
executioner in a closed, potentially self-serving system. In discussion 
on the issue of judicial review thus far, many of the supporters of review 
have specified that such review should be limited to questions of law and 
regulation. AMVETS adheres to this concept, as long as it is clearly 
understood that it specifically includes a re-evaluation of evidence of 
record to determine whether burdens of proof have been sustained and 
benefit of doubt has been afforded. Review, which would be restricted 
to the constitutionality and statutory authority of regulatory and 
administrative actions of the VA is what we already have, as a result 
of the cases which we cited earlier. 

With the current fee restrictions, even if judicial review were 
permitted, the veteran would be precluded from employing competent legal 
counsel in his cause. If those restrictions were to persist, the service 
organizations and legal aid agencies would be obligated to assume most of 
the cost of judicial review of VA determinations, an obligation which would 
be beyond the capacity of most service organizations. AMVETS, therefore, 
supports the proposed modifications of the fee restrictions set forth 
in S.636, 98th Congress. By the same measure of fairness, we believe 
that the other provisions of S.636 relating to standardizing of 
administrative procedures, and judicial review should be enacted. 



153 



-4- 



Since 1979, legislation substantially identical to S.636 has been 
enacted by the Senate, with no corresponding action in the House. All of 
the major veterans organizations except ONE have consistently supported 
judicial review in some form. From 1977 through 1979 the VA not only 
supported judicial review but the General Counsel's office pioneered 
in the expostulation of its merits. With the change in administrations, 
the VA switched sides on July 15, 1981 and opposed review, because, as they 
explained, they came to realize that it would cost too much. In other 
words we should be unwilling to spend the necessary funds to secure 
for the veteran the same procedural fairness which every other citizen 
has relating to all other federal agencies. 

The overwhelming majority of the veterans in this country want judicial 
review, as evidenced by the decisive action of the Senate in 1979 and 1982. 
The opposition of the minority should not be permitted to continue to block 
this necessary enfranchisement of our nation's .veterans . 



154 



STATEMENT OF 

JOHN F. HEILMAN 

NATIONAL LEGISLATIVE DIRECTOR 

DISABLED AMERICAN VETERANS 

TO THE 

SUBCOMMITTEE ON OVERSIGHT & INVESTIGATIONS 

OF THE 
HOUSE COMMITTEE ON VETERANS AFFAIRS 
JULY 21, 1983 



MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: 

On behalf of the over three-quarters of a million members of 
the Disabled American Veterans, may I say that we deeply appre- 
ciate this opportunity to present the views of our organization 
on the issue of judicial review of Veterans Administration bene- 
fit determinations. 

Your letter inviting our appearance today indicated that the 
Subcommittee is not seeking views on specific judicial review 
legislation that has been introduced in the Congress. However, 
in order to fully address the issue as it relates to the position 
taken by the DAV, I shall, of necessity, briefly refer to 
existing judicial review legislation that is presently pending in 
the Congress. 

Mr. Chairman, in accordance with a resolution approved by the 
delegates to our most recent 1982 National Convention, the 
Disabled American Veterans does support the basic concept of 
judicial review as that term applies to the Veterans Administra- 
tion. That is to say, we do believe that a veteran, or the 



155 



- 2 - 

dependent or survivor of a veteran, who has received an adverse 
benefit determination by the Veterans Administration and who has 
exhausted all appellate avenues within the VA adjudication 
process — including action by VA Central Office and/or the Board 
of Veterans Appeals — should be able to receive further redress 
and judicial proceedings outside the Agency. 

As you are aware, Mr. Chairman, the vast majority of VA bene- 
fit determinations (the exceptions being certain decisions 
relating to the Insurance and Home Loan Programs under Chapters 
19 and 37, Title 38, U. S. Code) are final and conclusive and not 
subject to review by any other official or court in the United 
States (Section 211[a], Title 38, USC). In this regard, the 
immunization of its benefit determinations from a judicial review 
process places the Veterans Administration in a position unshared 
by all other major federal departments and agencies. 

When considering the propriety of isolating VA benefit deter- 
minations from outside scrutiny, it must be noted that the VA 
adjudication process is not "adversarial" in nature. That is to 
say, the VA seeks to grant rather than deny benefits if entitle- 
ment is at all possible under existing laws, rules and regulations, 
Quite possibly, an objective analysis of VA benefit determinations 
would reveal that, by and large, they are being made by 
competent, dedicated personnel in an equitable fashion. 



156 



- 3 - 



However, it must be noted that a VA claim is a claim against 
the Veterans Administration and that the merits of a claim are 
evaluated by the Agency itself . The VA thus performs the 
multiple role of (1) defending itself against the claim, (2) in 
some instances, representing the claimant in the prosecution of a 
claim and (3) in all instances, judging a claim which it is also 
defending itself against. ^ 

Common sense would seem to dictate that if one wishes to "sue 
the railroad," one should not hire an attorney in the employ of 
the railroad and plead one's case before the "Chairman of the 
Board." 

Clearly, full due process of law and the goal of insuring the 
most just and equitable consideration of claims filed by veterans, 
their dependents and survivors require that adverse decisions 
rendered by the VA should be subject to some form of oversight 
procedure afforded by a judicial review process. 

Having stated this, I must hasten to add that the judicial 
review resolution approved by the delegates to our 1982 National 
Convention does not mandate the DAV to seek review in the Federal 
District Court System as proposed by several measures introduced 
in the Congress, including the one most recently approved by the 
Senate (H.R. 2936, as amended by the Senate). 



157 



- 4 - 

The official position of the DAV is in support of judicial 
review through the creation of an independent, permanent court — 
a Court of Veterans Appeals — composed of judges appointed from 
civil life by the President, such appointment being subject to 
confirmation by the United States Senate. 

As we envision it, the Court, upon petition by a claimant, 
would have jurisdiction to review adverse benefit determinations 
of the VA's Board of Veterans Appeals and would have the 
authority to confirm, reverse, modify or otherwise change such 
BVA decisions. Review of VA claims and actions associated with 
such review would be the sole duty and responsibility of the 
Court. 

The Court would also be empowered to (1) determine and allow 
reasonable legal fees in cases where the claimant is represented 
by a private attorney and (2) prescribe the qualifications of 
persons who may represent the claimants in proceedings before the 
Court. 

(There are two such "Court of Veterans Appeals" bills pre- 
sently pending in the full Committee: H.R. 649, introduced at 
the request of the DAV by Mr. Montgomery and H.R. 324, introduced 
for himself by Mr. Roe.) 



25-550 O— 83 11 



158 



- 5 - 

Mr. Chairman, as the Subcommittee does not wish, at this 
time, to entertain any discussion regarding the merits or lack 
thereof of specific judicial review legislative proposals, I 
shall not here comment upon why we believe such review could best 
be provided through the establishment of an independent court, 
rather than in the present Federal District Court System. 

However, in support of our position, I do wish to draw the 
Subcommittee's attention to a resolution approved in March of 
1978 by the Judicial Conference of the United States wherein the 
Conference reaffirmed an earlier (1963) position taken with 
respect to judicial review. (To the best of my knowledge, the 
Conference has not since changed this position.) 

The 1978 resolution stated in part: 

...whether judicial review of the denial of veterans' 
claims should be accorded is a matter of public 
policy which is solely within the province of Congress 
to decide and the judiciary should take no position 
thereon. If Congress should decide to grant such 
review, the Conference believes that review by a 
Court of Veterans Appeals , with local hearings by 
Commissioners of the Court, would provide a more 
suitable form of review than by the District 
Courts, the Courts of Appeals or the Court of 
Claims. (underscoring added) 

Thus, Mr. Chairman, while the DAV does believe the existing, 
informal VA adjudication process to be generally favorable to 
most claimants, we also believe, in pursuit of a full and unfet- 



159 



- 6 - 

tered due process of law, that the interests of VA claimants 
would best be served through the accessibility of a judicial 
review procedure independent of the Agency (and in line with our 
National Convention mandate). 

Mr. Chairman, I have one other point I wish to make before 
concluding my testimony: 

The current Congressional attention to the issue of judicial 
review began in the Senate during the First Session of the 95th 
Congress. Almost five years of hearing consideration have been 
given to the present Senate passed bill, H.R. 2936 (as amended), 
and to its immediate predecessors S. 330 and S. 364 (passed by 
the Senate in 1979 and 1982). 

Prior to this, judicial review of veterans' claims was the 
subject of extensive hearings by the House Veterans Affairs 
Committee during the Second Session of the 86th Congress. While 
the Congress declined to enact judicial review legislation at 
that time, the 1960 hearings are acknowledged as the stimulus 
which resulted in modification and reform of the VA appellate 
process (Public Law 87-666). 

However, despite this current and past examination of the 
issue, the record appears to be lacking in one important regard— 



160 



- 7 - 

no where is there a detailed, analytical study regarding deter- 
minations that are made by the VA's Central Office and/or Board 
of Veterans Appeals. 

Aside from the several "horrible example" type of cases that 
have surfaced (and which do support the need for judicial review), 
just what is really happening in the VA's appellate process? How 
prevalent are decisions that can be characterized as being capri- 
cious and arbitrary? When "questionable" decisions are rendered, 
are they more likely to surround issues of fact or issues of law? 
What are the most common issues on appeal to BVA? To Central 
Office (administrative reviews)? Do the vast volume of appeals 
have merit, or can their existence be attributed to the fact that 
the VA appellate system is "cost free" and completely accessible 
to all claimants? 

Surely the answers to such questions should be a prerequisite 
to any determinations the Congress may make regarding the need 
for and extent of judicial review legislation. 

To this end, Mr. Chairman — and we state this as a proponent of 
judicial review — we recommend that an in-depth study of Central 
Office and Board of Veterans Appeals decisions be conducted by an 
independent (non-VA) entity and the results of such study be made 
available to the Congress before any judicial review legislation 
is finalized. 

This concludes my remarks, Mr. Chairman. Again, I wish to 
thank you and the members of the Subcommittee for allowing me the 
opportunity to comment on this most important subject. 



161 




Statement of 

€ fL^fne'Uccin^ Beaton 



1608 K STREET, N. W. 
WASHINGTON, 0. C. 20006 



PAUL S. EGAN, DEPUTY DIRECTOR 

NATIONAL LEGISLATIVE COMMISSION 

THE AMERICAN LEGION 

and 

ROBERT E. LYNGH, DIRECTOR 
NATIONAL VETERANS AFFAIRS AND REHABILITATION COMMISSION 

THE AMERICAN LEGION 



before the 



SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 
COMMITTEE ON VETERANS AFFAIRS 
UNITED STATES HOUSE OF REPRESENTATIVES 



on 



JUDICIAL REVIEW OVERSIGHT 



JULY 21, 1983 



162 



STATEMENT OF ROBERT E. LYNGH, DIRECTOR 
NATIONAL VETERANS AFFAIRS AND REHABILITATION COMMISSION 

THE AMERICAN LEGION 
BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 
COMMITTEE ON VETERANS AFFAIRS 
HOUSE OF REPRESENTATIVES 
JULY 21, 1983 

Mr. Chairman and Members of the Subcommittee: 

The American Legion is pleased to have this opportunity 
to present to the Subcommittee its views on judicial review. 

The present position of the Legion on judicial review is 
set forth in Resolution No. 141 (Ohio), adopted by the 1982 
National Convention. A copy of Resolution No. 141 is attached 
to this statement, and is commended to the attention of the 
Subcommittee . 

In discussing the present position of the Legion on this 
subject, it is appropriate to state to the Subcommittee that 
judicial review continues to be a matter of active consideration 
by this organization. It is expected it will again be considered 
at our National Convention, which will take place next month. If 
the delegates to the convention effect a change in position, the 
Subcommittee will be so notified. At the moment, however, we 
must place before the Subcommittee the reasons that have guided 
the Legion to its present position, and have caused it to look 
unfavorably on the concept of judicial review since 1959. 

Before proceeding further, we would also like to pause and 
take note of the fact that current bills pending in Congress and 
providing for judicial review of veterans claims have been modified 
in some measure from bills presented in earlier Congresses. There 



163 



- 2 - 
seems to be an effort here to address some of the concerns the 
Legion has heretofore expressed. Whether the modifications would 
in fact achieve the desired result in actual practice would remain 
to be seen. However, it must be said that the modifications 
included in currently pending legislation do not completely allay 
the concerns the Legion has as to the fundamental effects of the 
imposition of judicial review on the present system of adjudicating 
veterans claims. 

On the simple face of it, it would seem strange that an 
organization such as the Legion, which has been engaged in assisting 
veterans to develop and present claims before the Veterans Adminis- 
tration for more than half a century, would be opposed to a 
procedure that would open an additional avenue to the individual 
claimant in his or her quest for benefits. The fact is, however, 
that judicial review is one of those instances where things are 
not always what they seem to be - especially in the development of 
government procedures. 

Permit us to present some of the reasons that lead us to 
make such a statement. And let us first say that the conclusion 
we shall draw from the points we intend to present is that veterans, 
under the present system of claims adjudication, within the agency 
of the Veterans Administration, receive more consideration and 
have a better chance to develop their claim successfully than they 
would if the possibility of litigation in the federal courts loomed 
over each case while it was in the process of development and 
presentation before local Rating Boards and the Board of Veterans 



164 



- 3 - 
Appeals. And let us add that part of the problem lies in the fact 
that the average person, including attorneys, would not understand 
how this could be so - because they are not experienced in claims 
development and presentation. It is necessary to engage in this 
work, as Legion Service Officers do, and to know how the VA 
adjudication system works, in order to take advantage of the 
various avenues that can be used to promote successful considera- 
tion of claims. 

In the first place, entry of veterans claims into the federal 
judiciary system would immediately place the veteran in an adversary 
relationship to the United States in seeking approval of claims. 
We note in the pending legislation, such language as "action shall 
be brought against the Administrator in the the district court of 

the United States , " "the complaint initiating an action , " 

and "the Administrator shall file, answer to a complaint " 

In our judicial system, the Administrator would be required to 
defend against a complaint filed by a veteran, and to do all possible 
to disprove the validity of such complaint. Even though the case 
would be heard on the record, and not by trial, the fact remains 
the individual veteran would be pitted against the Government in an 
effort to prove Government error. 

This is not now the case in adjudication of claims by the 
Veterans Administration. The present relationship of the claimant 
to VA is a cooperative one, in which both parties seek to develop 
the claim to the fullest extent before it is adjudicated. An 
adversary relationship immediately requires that as the claimant 



165 



- 4 - 
seeks to prove - and we note parenthetically, - not establish - 
but "prove," his claim, the Government must seek to prevent him 
from doing that, and must challenge any and all allegations the 
claimant may put forward, that are not clearly and conclusively 
supported by direct evidence. 

This brings us to the second point; application of the rules 
of evidence. As soon as a veteran's claim enters the federal 
judiciary system, the rules of evidence will apply. In this regard 
it is offered by proponents that court decisions will not be 
de novo and will be restricted to matters of law rather than of 
fact. However, we note in pending legislation, the following 
language: "If the reviewing court finds the Administrator's 
finding on an issue or issues of fact to be arbitrary, capricious, 

or an abuse of discretion, the court shall " Such language 

does not lead to any confidence on our part that judges will 
restrict their rulings to matters of law and regulations. Added 
to which is the fact that we live today in an era of an activist 
judiciary. Once a federal judge gets a case properly before him, 
it is doubtful, in our judgment that he will forego ruling on 
errors to him apparent, in whatever aspect of the case. 

Rules of evidence as provided in federal court do not now 
prevail in the VA adjudication system. Presently, VA will consider 
and often act on hearsay evidence, second, and even third hand 
evidence - none of which would be admissible in a court of law. 
Over the years the Legion has secured favorable decisions in 
literally thousands of cases based on tangential evidence that a 



166 



- 5 - 
court would never admit. 

The argument is put forward that if VA allowed a claim on 
evidence that is not directly contributory to the case, then the 
case would never go to court - so what harm is done. Our point is, 
however, that in our judgment, once VA claims rating officers 
become aware that ratings they make could conceivably be subject 
to judicial review they may very well change their attitude to one 
of "let the courts decide," and begin to rate strictly by the book. 
If this were to happen many more cases would be denied and thrown 
into the courts where they would be subject to rules of evidence. 
We believe this to be a risky proposition at best. 

Also, we perceive that in an effort to ameliorate The American 
Legion's concerns about this matter, pending legislation includes 
language providing that the courts may not try a veteran's case on 
appeal from the agency de novo. We must say we have no confidence 
in this provision, bearing in mind the federal judiciary is a 
co-equal branch of the government and in recent history especially, 
federal judges have consistently made clear they do not consider 
themselves bound by the legislative branch as to how they shall 
try cases that are properly before them. 

Then, there is the matter of the doctrine of res adjudicata. 
It is our judgment that if judicial review of claims is instituted 
the doctrine will be applied by the judiciary, language of the 
Act notwithstanding. It should be borne in mind that the doctrine 
of res adjudicata is one of the fundamental principles of common 
law. It would be difficult to avoid it in especially complicated 
and long extended cases - of which we have many. 



167 



- 6 - 

Invocation of the doctrine of res adjudicata would be a 
serious blow to the present efficacy of claims procedure, because 
it would prevent claims from being reopened once a federal judge 
had ruled on them. Presently, we are able to secure the multiple 
reopening of claims by submitting new arguments based on already 
reviewed evidence, and sometimes by the device of securing transfer 
of the claim to different rating agencies within VA. Res adjudicata 
would put an end to this helpful practice, and the result would 
be that we would lose on a significant number of claims in which 
we are now succeeding. We do not wish to give up this condition 
of maximum accessibility to the VA adjudication system. 

In summary, it is our considered judgment - and admittedly 
it is only that - based on our long experience in helping veterans 
get benefits from the government, that given the judicial review 
of veterans claims, we will end up losing more cases than we will 
win - speaking of that category of cases that is most controversial, 
marginal, and thus most difficult to argue. The American Legion's 
historical record in winning difficult cases is a good one. We 
are as expert in the business of veterans' advocacy as is any other 
person or group that deals in veterans affairs, and all we can offer 
is our best judgment - which is what we are doing at this time. 

One other matter that needs to be mentioned in the context 
of judicial review is attorneys fees. This is a somewhat delicate 
matter. We do not wish to deprive anyone of fair recompense for 
services rendered. In the case of the veterans organizations that 
now provide advocacy to veterans, that recompense is provided from 



168 



- 7 - 
the dues of members who wish to aid and assist diseibled, sick and 
poor veterans and their dependents and survivors. In the courts, 
advocacy will have to be provided by attorneys, who will have to 
be paid. 

We have read the language in pending legislation. We can 
tell the Subcommittee that over time, substantial amounts of money 
are going to be paid by veterans to attorneys who will handle their 
cases in court. This money is going to have to be paid from the 
veterans' pockets, or from benefits they gain from court action. 
As is stated in our appended resolution, the Legion has a difficult 
time accepting the payment by veterans - who are mostly poor - of 
money to anyone to gain benefits to which they are entitled by 
law, based on service in the Armed Forces of the United States. 
The defense of attorney fees is that they will be paid on the basis 
of a free decision by the veteran to retain the services of an 
attorney. That statement may be true, but it is also true that a 
claimant will tend to do whatever he feels constrained to do to 
gain the benefits sought. It is, in our judgment, regrettable 
that the benefits sought will be reduced in the gaining thereof. 
We really believe there should be a better way for the veteran to 
gain just entitlements. 

Which leads us to two final points. First, The American 
Legion position is not set in concrete in the matter of the current 
limit of $10 as an attorney fee for services rendered in the 
pursuit of justly entitled benefits. The $10 fee was established 
many years ago and is obviously outdated. The attorney is fairly 



169 



entitled to recover the cost of providing service where such 
services are desired. In that context The American Legion has no 
objection to an adjustment of the attorney fee now provided by 
law - with the obvious proviso that the adjusted amount should not 
be so high as to be lucrative to the provider. 

Second, The American Legion wishes the record to show that 
it has no essential objection to the establishment of an independent 
Court of Veterans Appeals, whether to sit in Washington, or to have 
travelling panels. Should Congress decide the establishment of 
such an independent court would enhance the veteran ' s effort to 
obtain benefits to which entitled, the Legion would view such an 
initiative from a positive perspective. 

Finally, let us say that under a Judicial Review Act, 
there would probably be some cases won. The present VA system is 
not perfect, because no system is. Based on our sixty years of 
experience in veterans claims work, it is our considered judgment 
that there will be more cases lost than won when the VA system 
becomes subject to the examination and imposed judgment of Federal 
Judges. In other words, we believe veterans are, in the main, 
treated more generously by this Government under the present VA 
system of adjudication than they would be were they siobjected to 
the tender mercies of the Federal Judiciary. In making this 
statement we ask the Subcommittee to bear in mind, it is not the 
function of The American Legion to protect the interests of the 
Government of the United States. That Government has all the 
power and majesty of its sovereignty to do just that. It is the 



170 



- 9 - 

function of the Legion, under the terms of the Charter granted us 
by Congress, to look to the welfare of the nation's veterans and 
that of their dependents and survivors, and that is the sole 
motivation of our organization in establishing its position in the 
matter of judicial review. 

Once again, we thank the Subcommittee for receiving our views. 



Attachment: Resolution No. 141 (Ohio) 
1982 National Convention 
The American Legion 



171 



SIXTY -FOURTH ANNUAL NATIONAL CONVENTION OF THE AiXIERICAN LEGION 
CHICAGO, ILLINOIS, AUGUST 24, 25, 26, 198 2 



RESOLUTION 

COMMITTEE 

SUBJECT 



No. 141 (Ohio) 

Veterans Affairs and Rehabilitation 

Oppose legislation which would authorize judicial 
review of the decisions of the Administrator of 
Veterans Affairs 



WHEREAS , The American Legion is committed to the interests 
and the well-being of all veterans, their dependents and sur- 
vivors who seek benefits from the Veterans Administration; and 

WHEREAS, from the time of its founding. The American Legion 
has provided diract assistance to veterans , their dependents and 
survivors in filing, developing and presenting claims for bene- 
fits from the VA without cost to the veteran, and without regard 
to membership in The American Legion; and 

WHEREAS, ^h '^ experience of The American. Legion in more th a n 
sixty years of claims work has demonstrated, that the present 
system of claims that is administered by VA works to the best 
advantage of the. claimant in that it does not involve cost to 
the veteran, is not an adversary proceeding and permits the 
informal presentation of evidence that operates to the advantage 
of the claimant; and 

WHEREAS , there has been introduced in the Congress , legis- 
lation that would permit claimants for benefits from VA to 
institute litigation in the Federal courts, in furtherance of 
their claims; and 

WHEREAS, such litigation is presently not permitted by 
reason of th^ provisions of section 211(a) of title 33, United 
States Code, which provisions codify existing law; and 

WHEREAS, all claimants seeking benefits from VA have the 
right, as do all citizens, to seek judicial relief in matters 
involving thsir constitutional rights; amd 

WHEREAS, ths principal reason advanced in support of 
judicial review of veterans claims is to insure the claimant's 
access to due process; and 

t'TEEREAS, on the basis of its long experience in claims 
work. The American Legion is convinced that claimants presently 
receive more consideration under due process within the VA 



172 



- 2 - 



system of adjudication of claims than would be provided by 
judicial review, given the facts that judicial review would 
place the claimami in an adversary relationship with the govern- 
ment, and would reqiiire the claimant to adhere to the rules of 
evidence in support of the claim, which is not presently the 
case within the VA adjudication system; and 

WHEREAS, under the doctrine of "res judicata" a court 
decision would preclude a reopening of the claim on the veteran's 
part, as contrasted by the VA's rjiles. and practices which permit 
almost unlimited reconsiderations; and 

WHEREAS, the prospect of the claimant paying in any 
fashion to obtain benefits due him from the Government of the 
United. States as would have to be done in the instamce of litiga- 
tion, is abhorrent to The American Legion; now, therefore, be it 

RESOLVED, by The American Legion in National Convention 
assembled in Chicago, Illinois, August 24, 25, 26, 19 32, that 
The American Legion shall continue to oppose the enactment of 
amy measure that woiild amend 33 USC 211(a) , so as to authorize 
judicial review of the decisions of the Administrator of Veterans 
Affairs except as presently authorized in 38 USC 755 and 734, 
and Chapter 37 of such title. 



APPROVED 



173 
VETERANS OF FOREIGN WARS OF THE UNITED STATES 




r 
OFFICE OF THE DIRECTOR 

STATEMENT OF 

PHILIP R. MAYO, SPECIAL ASSISTANT 

NATIONAL LEGISLATIVE SERVICE 

VETERANS OF FOREIGN WARS OF THE UNITED STATES 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

COMMITTEE ON VETERANS AFFAIRS 

UNITED STATES HOUSE OF REPRESENTATIVES 

WITH RESPECT TO 

JUDICIAL REVIEW OF VETERANS CLAIMS 

WASHINGTON. D. C. -^^ ^1. 1983 

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: 

Thank you for the opportunity to present the views of the Veterans of Foreign 
Wars of the United States with respect to judicial review of veterans claims. 

The subject of judicial review of Veterans Administration (VA) benefit deter- 
minations has been before the Congress for many years. Since the 94th Congress, pro- 
posals have been introduced to afford veterans the right to their "day-in-court." 
As the second largest client agency in the Federal Government, the VA is one of the 
few agencies whose decisions are final with no further recourse available to the 
claimant. In supporting judicial review however, the VFW is not being critical of 
the VA's claims processing apparatus, including the Board of Veterans Appeals (BVA) . 
We have praised its performance in the past and do not see any reason to alter this 
support. The Board, under constant pressure from mounting workloads and the increasing 
complexity of its cases (such as radiation and herbicide exposure claims), renders 
for the most part, fair and equitable decisions. However, human nature being what 
it is, errors in judgment or interpretation of law and regulation may occur. For 

* WASHINGTON OFFICE * 
VFW MEMORIAL BUILDING • 200 MARYLAND AVENUE, N.E. • WASHINGTON, D. C. 20002 - 5799 • AREA CODE 202-543-2239 



25-550 0—83 12 



174 



Page 2 



this reason, the VFW believes that the VA claimant should be allowed to utilize the 
court system when certain actions warrant. 

The voting delegates to our most recent National Convention passed Resolution 
No. 775 entitled "Judicial Review," a copy of which is appended to my statement for 
your consideration. This resolution supports legislation which would provide judi- 
cial review of Veterans Administration benefit determinations concerning questions 
of law and regulation. The VFW believes this narrowly drawn resolution would ade- 
quately permit dissatisfied claimants to seek relief in the appropriate court upon 
exhaustion of their administrative appeals; meaning no lawsuit could be initiated 
until after a final decision has been rendered by the Administration. By limiting 
judicial review to questions of law and regulation, we believe a flooding of cases 
to the federal courts is avoided and, at the same time, the informal, flexible re- 
view procedure currently in place within the VA is preserved. We do not believe the 
interpretation of facts by the Administration has been the major impetus behind the 
aspiration for judicial review, nor do we contemplate such a review since such would 
lead to de novo review of claims. Rather, the interpretation of law and regulation, 
in our opinion, is most in question. We submit, Mr. Chairman, that for many veterans, 
claims proceedings before the Administration are the most important event in their 
life; that many believe they are involved in a legal proceeding, the importance of 
which causes them to question our professional staff as to the availability to them 
of higher relief in the courts. 

Mr. Chairman, although our resolution does not address the issue of attorneys' 
fees, we are of the opinion the current $10 limitation on such fees payable to attor- 
neys representing veterans before the VA is unrealistic. The limitation on attomeyi^ 
fees dates back to the post-Civil War period with the present $10 level being estab- 
lished in 1924. The intent of this limitation was to protect veterans from those who 
would resort to unscrupulous means in order to generate clients. It does not appear 
there was consideration given, at the time of imposing this limitation, to the fact 
that court review would be a possibility or to the sometimes very complex nature of 
today's cases. This limitation also effectively denies the VA beneficiary the free- 
dom and right of choice of representation in pursuing a claim with the VA. 

This concludes my statement. Again, thank you for the opportunity to present 
our views. 



175 



Amencan 
Legion 




* WASHINGTON OFFICE * 1608 --K-- STREET. N.W ♦ WASHINGTON. DC. 20006 * 

(202)861-2700 * 



For God and Country 



July 25, 1983 

Honorable G. V. (Sonny) Montgomery 

Chairman 

Subcommittee on Oversight and Investigations 

House Committee on Veterans Affairs 

2184 Rayburn House Office Bldg. 

Washington, DC 20515 

Dear Mr . Chairman : 

At the meeting of the Subcommittee of July 21, 1983, on 
the subject of Judicial Review of Veterans Claims, Congress- 
woman Johnson requested the Service Organizations to respond in 
writing to two questions. This letter constitutes The American 
Legion's response to the Congresswoman 's request. 

Question No. 1 inquired as to the nature of the problem 
cases the Legion deals with. If I understood the question 
correctly, I believe it is in the direction of the type of cases 
it can be expected will be most likely to go to the courts if 
judicial review becomes an available alternative. 

The most difficult types of case the Legion has to deal with 
involve the grant of service connection. The issue usually 
revolves around the acceptance by VA of the evidence presented 
by the veteran . 

Question No. 2 inquired as to the expectation by the Service 
Organizations of the effect of judicial review on the work of the 
Service Officers. 

The American Legion does not anticipate that judicial review 
will have an appreciable effect on the work of our Service Officers. 
Veteran claimants will have to develop their cases and pursue 
them through the adjudicative processes of the VA before they can 
approach the Federal Courts. So we would expect our Service 
Officers to continue to do essentially what they do now - counsel 
the claimant, assist him to prepare the case, to present the case 
as advocate on the veteran's behalf and prepare and present the 
case on appeal should that be necessary. Only the cases that 
cannot be resolved satisfactorily through the VA adjudication 
system would be likely to end up in the Federal Courts, where the 
services of an attorney would be necessary. 

If the Subcommittee has any further questions regarding this 
matter, we will be happy to respond. 

Sincerely, 



.f) cp ~f 

■ R. E. LYMGHj/Di,^ctor 
National Vaterans Affairs and 
Rehabilitatio.?! Commission 




176 

Resolution No. 775 
JUDICIAL REVIEW 

WHEREAS, Section 211, Title 38, U.S. Code, provides that decisions of the 
Administrator of Veterans Affairs on any question of fact or law imder any 
law administered by the Veterans Administration providing benefits for 
veterans, their survivors or dependents are final and conclusive and not 
subject to review by any other official or court of the United States; and 

WHEREAS, as mandated by the 82nd National Convention by Resolution No. 620, 
the Commander-in-Chief appointed a Committee on September 14, 1981, comprised 
of VFW Service Officers and VFW members who are prominent attorneys to 
review our position with respect to judicial review; and 

WHEREAS, the Commander-in-Chief has reviewed and assessed most carefully 
the opinions and rationale of the Committee members; and 

WHEREAS, the Commander-in-Chief has determined that the preponderence of 
Committee members support judicial review of the decisions of the Administrator 
of Veterans Affairs with respect to Veterans Administration law and regulations; 
now, therefore 

BE IT RESOLVED, that the 83rd National Convention of the Veterans of Foreign 
Wars of the United States, upon the majority recommendation of the duly 
appointed and constituted ad hoc Committee under mandate of the 82nd National 
Convention, supports legislation which would provide judicial review of 
Veterans Administration benefit determinations concerning questions of law and 
regulation. 



Adopted by the 83rd National Convention of the Veterans of Foreign Wars of 
the United States held in Los Angeles, California, August 13-19, 1982. 

Resolution No. 775 



177 

OPENING STATEMENT 

Honorable G. V. (Sonny) Montgomery 

July 25. 1983 



GOOD MORNING. THE SUBCOMMITTEE WILL COME TO ORDER. 

THIS MORNING THE SUBCOMMITTEE WILL CONTINUE RECEIVING 
TESTIMONY ON THE ISSUE OF JUDICIAL REVIEW OF VETERANS CLAIMS. 
OUR LAST HEARING WAS VERY INFORMATIVE. AND WE ARE VERY 
GRATEFUL FOR THE EXCELLENT TESTIMONY THE WITNESSES PROVIDED. 
TODAY'S WITNESSES INCLUDE THE VETERANS ADMINISTRATION. THE 
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES. AND SEVERAL 
•ORGANIZATIONS REPRESENTING VETERANS. 

THE SUBCOMMIHEE RECEIVED REQUESTS TO APPEAR FROM 
SEVERAL OTHER ORGANIZATIONS INTERESTED IN THE ISSUE OF JUDICIAL 
REVIEW. UNFORTUNATELY. WE WERE NOT ABLE TO HONOR ALL OF THESE 
REQUESTS DUE TO TIME CONSTRAINTS. HOWEVER. WITHOUT OBJECTION. 
SEVERAL STATEMENTS WILL BE MADE A PART OF THE HEARING RECORD. 



178 



STATEMENT OF JOHN P. MURPHY 
THE GENERAL COUNSEL 
OF THE VETERANS ADMINISTRATION 
BEFORE THE 
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 
HOUSE COMMITTEE ON VETERANS' AFFAIRS 
July 26, 1983 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here today on behalf of the Veterans Admin- 
istration to discuss whether there should be Judicial review of 
VA benefit decisions. 

It is our considered opinion that veterans as a group are served 
far better under our present procedure than if the claim process 
were geared to ultimate Judicial review. To clarify this point, 
I would like to briefly review our claim process. A more 
detailed description of our adjudication procedures and the 
Board of Veterans Appeals is included as an attachment to my 
prepared testimony. 

The most salient characteristic of the VA claim process, and what 
we believe is one of its greatest advantages for our beneficiaries. 
Is Its informality. Claimants may submit their own applications 
without need of any assistance, or if they need advice, they have 
Access to VA employees who specialize in answering inquiries and 
assisting in the development and submission of claims. At the 
same level, there exists a wide network of veterans' service 



179 



2. 

organizations which furnish competent claim specialists at no 
charge to assist claimants In the presentation of their claims 
regardless of whether the claimant Is a member of the organization. 

VA adjudication procedures are non-adversary In nature. In 
almost all cases, a claimant need do nothing more than file 
a claim. Adjudication of the claim then proceeds without the 
necessity of the claimant appearing at a hearing, producing 
further evidence, or presenting witnesses. It must be noted, 
however, that hearings are available at any point in the claim 
process. The Agency procures records of military service and 
medical treatment basic to most claims. Where these records 
prove insufficient to ;^sta.bllsh the benefit being sought, 
the claimant is clearly told what additional evidence would be 
required, such as a report from his private physician or state- 
ments from comrades in service. All of the evidence submitted by 
the claimant becomes part of the record without regard to formal 
rules of evidence. The VA considers its role as a guardian of 
veterans' rights rather than an opponent, and all evidence which 
has been submitted by a claimant, or is obtained by the Agency, 
is considered in arriving at a determination on the claim. 
Additionally, it is the policy of the VA to grant the claimant 
the benefit of the doubt, at both the initial and appellate stages. 
It is our experience that VA employees try to find a way to grant 
a benefit, and that many claims are allowed by the VA that would be 
denied under a more adversary process. 



180 



3. 

Once a decision has been reached, the VA provides the claimant 
with notice of the decision, as well as notice of hearing and appel- 
late rights. If the claimant disagrees with the decision, it may 
be appealed within the Agency. The claimant initiates an appeal by 
filing a Notice of Disagreement which can be nothing more than a 
simple declaration of disagreement with the decision. On receipt 
of the Notice of Disagreement, the regional office reevaluates the 
claim and, if the decision remains adverse, provides the claimant 
with a Statement of the Case. The Statement of the Case contains 
a svimmary of the evidence, citation and discussion of the pertinent 
laws and regulations, and the decision on the claim as well as the 
reasons therefor. The Statement of the Case is designed to assist 
the claimant to underttand' the law and the evidence relied upon, 
as well as the evidence lacking to establish entitlement. With 
the Statement of the Case, the claimant is provided with instruc- 
tions for completing an appeal and advised of his or her rights 
to an appellate hearing. The majority of VA hearings are held at 
this point in the adjudication process. In fiscal year 1982, 
claims were allowed at the regional office level in over 8,^00 of 
the 68,500 cases in which Notices of Disagreement were filed. 

Appeals are heard by the Board of Veterans Appeals in Washington, 
D.C., which makes a complete smd Independent de novo review of 
all the evidence of record. As at the regional office level, 
service organizations continue their free representation before 
the Board. Our experience has been that these professional re- 
presentatives, although not attorneys, have attained the highest 



181 



level of competence and expertise In the field of veterans law. 
Thus, even though the agency strives to give all possible assistance, 
the process also allows for participation of outside representation 
at no cost to the claimant. 

By statute, all BVA decisions must contain separately stated 
findings of fact and conclusions of law. However, as a matter of 
policy, all BVA decisions also contain a summary of the contentions 
and evidence, a concise statement of applicable laws and regulations 
and a discussion and evaluation intended to respond to all arguments 
raised. Accordingly, each BVA decision provides a claimant with a 
complete explanation of the Board's action on each Issue. 

This Is a brief description of the VA's adjudication process, a 
process that all concerned agree Is a good one, particularly from 
the point of view of Insuring that every claimant Is granted every 
benefit to which he or she Is entitled. In the face of such virtual 
unanimity we can only question the wisdom of changing the process by 
subjecting it to Judicial review. 

Enactment of Judicial review legislation would interject an adversary 
relationship into what has been a cooperative process. As a matter 
of principle, the VA should never be placed in an adversary position, 
much less become an opposing litigant, with respect to any claimant. 
The presence of repeated challenges to our veteran oriented process 
would result out of necessity' in more rigid and formal proceedings. 
The involvement of attorneys, whose training auid experience is 
primarily based on the adversary structure of the courts, is also 



182 



5. 

likely to increase the potential of our procedures becoming more 
adversary In nature. One cannot reasonably expect to require an 
•gency to defend In an adversary proceeding without the agency 
becoming adversary. 

Because the function of the VA Is to distribute benefits to veterans 
and their families, the assumption of an adversary position would be 
a major change Indeed. Such a fundamental change to the VA's position 
and obligation to assist veterans should not be made in the absence 
of very strong Justifications to support such a change. 

One final aspect of the participation of attorneys should also be 
noted. That is the increased cost to claimants. The purpose of 
the present attorney fee limitation, 38 U.S.C. § 3404, is, of course, 
to preserve a claimant's award of benefits to the maximum extent 
possible. By continuing this limitation for over one hundred years. 
Congress recognized the principle that benefits which it created 
should not be consumed in expensive legal fees, but should be dis- 
tributed to claimants for the purposes Inherent in enacting the 
benefits program. As I noted earlier, the VA's relatively simple 
procedures for making a claim, and even for pursuing an appeal, do 
not require the assistance of an attorney. At the same time, the 
availability of professional help from the veterans' service orga- 
nisations allows expert, outside representation at no charge to 
the claimant. In view of the present availability of free, expert 
assistance, we believe the advantages to claimants which flow from 
the preservation of virtually their entire award of benefits far 
outweigh the largely theoretical advantages of attorney assistance. 
Moreover, attorneys' fees Incurred in unsuccessful challenges to 
VA decisions may Impose a financial hardship on some claimants. 



183 



6. 

In the absence of a specific legislative proposal, we cannot, of 
course, estimate potential costs that would result from Judicial 
review of Individual benefit decisions. However, we oan predict 
%hBit at least some Increased costs would result from the added bur- 
dens Judicial review legislation would Impose on both the Execu- 
tive and Judicial Branches. One such burden would be the additional 
effort required to adjudicate a case when litigation is a possible 
result. We do not mean that our competence must Improve to withstand 
court scrutiny, because Improved service Is a high priority concern 
In the Agency on a continuing basis. What we fear is that more time 
and care may be required at all levels of the claim process in docu- 
menting the procedural steps taken and the reasons underlying our 
conclusions. Any time and resources spent on increased formality 
will be lost from the'active concern we are able to show for indi- 
vidual claimants. Litigation generated by the availability of 
Judicial review would likewise result in costs to the VA, the 
Department of Justice, and the courts. New burdens may also be 
Imposed on BVA or the regional offices in dealing with cases 
remanded by the courts. Judicial review would also add to the 
burgeoning Federal caseload referred to recently by the Chief 
Justice of the United States as a "litigation explosion." 

Finally, reliance on a centralized body like the BVA for determina- 
tions of veterans' benefit claims eliminates the prospect of incon- 
•iitent determinations resulting from litigation in the 9** district 
courts throughout the country. In our view, a veteran's entitle- 
ment to benefits Is not a matter which varies with geography, and a 



184 



7. 

veteran should not be subjected to a system In which the resolution 
of a claim may differ depending on the Judicial district In which 
the veteran resides. We believe the BVA offers a more consistent 
.juad systematic approach to claim adjudication, without the frus- 
trating cost and delay Inherent In litigation. 

In our view, these reasons support a conclusion that the Imposition 
of Judicial review on individual benefit decisions, while it might 
benefit a few individuals, could work to the detriment of veterans 
as a class by disrupting the Informal, non-adversary procedures and 
the cooperative attitude presently existing between claimants, their 
representatives and the VA. Veterans now have a fair and impartial 
forum, the BVA, and our procedures afford a full opportunity to 
present all evidence and. have it fully considered- 
Aside from the risk posed to veterans as a group, we question whether 
the need for Judicial review of individual benefit decisions has been 
demonstrated. We are convinced that the VA's adjudication process 
not only meets the requirements of due process, but provides greater 
protection to claimants than is available in comparable proceedings 
at other agencies. The right to appeal and obtain a de novo review 
by the Board of Veterans Appeals (BVA), without the significant costs 
of litigation, provides an effective, practical and uniform method 
to correct the few errors that inevitably occur in individual cases in 
t4f adjudication system. Including the Federal courts. Liberal rules 
for reopening claims and reconsideration of appeals by the Board also 
serve to Insure Justice for VA claimants. The review provided by the 
Board is independent and the VA has scrupulously maintained this 
independence. 



185 



8. 

The traditional arguments In support of Judicial review of Indi- 
vidual VA benefit decisions can be briefly summarized as follows: 

1. Because of the tremendous volume of claims that are pro- 
cessed annually and the thousands of appeals filed, there is a 
significant opportunity for injustice to occur in the VA system; 

2. The distinction between veterans and the claimants for 
other Federal benefits who are permitted access to the courts is 
unwarranted and should be eliminated; and 

3. The lack of Judicial review unconstitutionally denies 
veterans due process in the handling of their claims. 

Any initial persuasiveness of these arguments disappears under 
even a cursory suialysls. The first argument seeks to support 
the necessity for Judicial review on the basis of a possibility 
of injustice. In fact, however, there is nothing to indicate 
that the current preclusion of Judicial review results in in- 
justice. There is no evidence that most VA claimants are not 
satisfied with the resolution of their claims for benefits. 

The argument that veterans have been unfairly singled out In 
having review of their claims against the Government confined to 
administrative proceedings also does not withstand scrutiny. 
Although 38 U.S.C. § 211(a) may be the most visible and widely 
discussed statute precluding Judicial review of administrative 



186 



9. 

action, such statutes can be found throughout the Federal Govern- 
ment and continue to be enforced In a variety of situations. The 
Administrative Conference of the United States has Identified some 
forty examples of statutes precluding or restricting Judicial review 
of administrative action. 

Of course, many of these statutes address specific Issues, and 
some provide an opportunity for review under limited circumstances. 
The fact remains, however, that Judicial review Is precluded or 
severely restricted In such Important areas as selective service 
classification and processing; grant, denial, and revocation of 
parole; exclusion orders affecting arriving aliens; and determi- 
nations controlling coverage of states and localities under the 
Voting Rights Act. Particularly analogous Is the provision of the 
Federal Employees Compensation Act, 5 U.S.C. § 8128(b), precluding. 
In language very similar to that used In section 211(a), Judicial 
review of the grant or denial of compensation to Federal employees 
suffering work-related Injuries. Thus, not only have veterans not 
been singled out for disparate treatment, the Informal and suppor- 
tive nature of the VA's administrative process provides a greater 
degree of fairness than may be available to participants In other 
Federal programs. 

The argument that the absence of Judicial review of Individual 
VA benefit decisions unconstitutionally denies veterans due 
proceBS of law in the handling of their claims is likewise 
In error. Due process does not mandate Judicial review. 



187 



10. 

As the District of Columbia Circuit Court of Appeals explained 

In DeRodulfa v. United States . ^61 F.2d 12^0, 1258 

(D.C. Cir. 1972), 

The Supreme Court has declared that 'the 
United States, when It creates rights In 
Individuals against Itself, Is under no 
obligation to provide a remedy through 
the courts;' 'It may,' Instead, 'provide an 
administrative remedy and make It exclu- 
sive • . . •' That Is precisely what 
Congress did In the current version of 
Section 211(a), and Congress was well 
within Its legislative prerogatives 
when It did so. (Citations omitted) 

Contrary to the argument advanced, the courts — the branch of 
Government responsible for determining the constitutional 
requirements of due process — have not held that the absence 
of Judicial review of Individual VA benefit decisions vio- 
lates due process. 

Accordingly, the Issue is not one of constitutionality but of 
preference. The Social Security Administration's experience 
"■•with judicial review of Social Security determinations as pro- 
< vlded under the Social Security Act Illustrates the difficulties 



188 



11. 

associated with Judicial Involvement In administrative determina- 
tions concerning benefits. The number of suits challenging Social 
Security determinations has risen drastically over the years to 
approximately 25,000 pending cases at the end of 1982. Based on 
fiscal year 1982 figures. Social Security cases were estimated by 
the Department of Justice to represent almost fifty percent of 
all civil actions commenced against the United States. The 
Department of Justice reported, in commenting on S. 3^*9 in 
the 97th Congress, that it has experienced serious caseload 
problems since adoption of the Judicial review provision per- 
taining to Social Security benefit determinations, and that it 
would expect to encounter a similar caseload expansion as a 
result of enactment of a judicial review provision affecting 
the VA. 

A comprehensive review of the Social Security Administration 
adjudicatory process by the Center for Administrative Justice 
in 1977, in a report entitled the "Study of the Social Security 
Administration Hearing System", analyzed the contributions of 
Judicial review to the Social Security Administration administra- 
tive process. The study concluded that any beneficial effect of 
Judicial review on the accuracy of Social Security Administration 
edjudications is modest at best, while suggesting that such review 
«^y have some negative effects. For example, the study noted that 



189 



12. 

district Judges, not being specialists In hearing Social Security 
cases, may lack the perspective of agency appeals officers In 
assessing the validity of claims. The study also found that the 
threat of Judicial reversal In many cases does not have a measurable 
beneficial Impact on the diligence of agency adjudicatory officials. 
The study also indicated that the creation of Judicial precedents 
in individual benefit cases has had little positive impact on the 
administrative process. Finally, the study questioned the actual 
legitimizing impact of Judicial review on the adjudication process. 
Given this background, the VA is unwilling to endorse any proposal 
which would create a system analogous to that involving the review 
of Social Security claims. 

In summary, it is the VA's' position that the present system for 
the Informal adjudication of claims for veteran benefits is 
working efficiently and fairly, and that no widespread injustice 
has resulted from this system. In view of this record, we believe 
the potential costs and burdens associated with Judicial involve- 
ment in the day-to-day process of claims adjudication have not 
been adequately Justified. Of even greater significance, however, 
is our belief that, while Judicial review of VA benefit decisions 
may result in Increased monetary awards to a relatively few indivi- 
duals, it could work to the detriment of veterans as a class by 
disrupting the informal, non-adversary nature of our procedures 
and the cooperative attitude presently existing between claimants, 
their representatives and the VA. Accordingly, we are opposed to 
subjecting individual VA benefit decisions to Judicial review. 



25-550 0—83 13 



190 



ATTACHMENT 
Section I 
VETERANS ADMINISTRATION ADJUDICATION AND APPELLATE PROCEDURES 



Current Veterams Administration claims procedures are designed 
to afford full due process to claimants and to minimize the 
possibility of arbitrary and capricious decisionls or abuse of 
discretion by the Administrator. These procedures are defined 
by statutes and regulations which charge the Veterans Admin- 
istration with the duty to assist the claimant in developing 
the facts pertinent to his or her claim and the responsibility 
to render a decision which grants the claimant every benefit 
that can be supported in law, 38 C.F.R. § 3.103- Further, if 
the evidence presented raises a reasonable doubt regarding 
service origin, degree of disability, or any other point, 
regulations require that doubt to be resolved in favor of 
the claimant, 38 C.F.R. § 3.102. 

The most salient characteristic of the Veterans Administration 
claim process is its informality. In most cases, claimants 
may submit their own applications without need of any assis- 
tance, and without an attorney. If claimants desire assistance, 
or need advice, they have access to Veterans Administration 
employees who specialize in answering inquiries and assisting 
in the development ..^od submission of claims. At the same level, 
there exists a l»ide network of veterans' service organizations 
which furnish competent claim specialists at no charge to 
assist claimants in the presentation of their claims. 

Veterans Administration adjudication procedures are Intended 
to be, and in operation are, nonadversary in nature. In almost 
all cases, a claimant need do nothing more than file a claim. 
Although adjudication of the claim will actually take place at 
one of our 58 regional offices, the claimant may personally 
file or mail a claim to any Veterans Administration facility. 
The Veterans Administration maintains a number of veterans 
services offices in various states to assist claimants. In 
addition, veterans benefits counselors are assigned to 
hospitals, domiciiiaries, nursing homes and out-patient treat- 
ment centers to assist claimants and answer questions. All 
claims received are forwarded to the appropriate regional 
office for adjudication. 

Adjudication of the claim can generally proceed without the 
necessity of the claimant appearing at a hearing, producing 
further evidence, or presenting witnesses. The Agency will 
procure records of military service and medical treatment 
basic to most claims. Where these records prove insufficient 
to establish the benefit being sought, the claimant is clearly 
told, whenever possible, what evidence would be required and 



191 



2. 

what sources are acceptable. As noted. It has always been the 
policy of the Agency to grant a claimant the benefit of the 
doubt, and in cases where service medical records do not sub- 
stantiate the claim, lay evidence of the existence of a 
condition can be accepted. The Veterans Administration 
-considers its role as a guardian of veterans' rights rather 
than an opponent, and all evidence which has been submitted 
"by a claimant, or is obtained by the Agency, is considered 
In arriving at a determination on the claim. 

Once a decision has been reached, the Veterans Administration 
must provide the claimant with notice of the decision, as well 
as notice of hearing and appellate rights. (A sample of the 
form providing this notice is attached as Exhibit 1.) A 
claimant is entitled to a hearing on any issue at any stage 
in the proceedings. At a hearing, claimants may produce wit- 
nesses to testify on their behalf and may adduce evidence of 
any nature whatsoever in support of their claims. The hearing, 
wherever possible, is conducted by personnel who did not 
participate in the initial decision. The right to present 
and question witnesses is provided by the hearing procedures. 
However, the personal appearance of witnesses is not required. 
The informal nature of the process almost always results in all 
of the testimony desired by the claimant becoming a part of the 
record through letters . and statements written on the claimant's 
behalf, without regard to formal rules of evidence. The VA may 
even send an employee to a potential witness' home or business 
to receive testimony for the record. 

Any decision with which a claimant disagrees may be appealed 
within the Agency. An appeal is initiated by filing a Notice 
of Disagreement with the action in question within one year 
from the date of notification thereof. This can be a simple 
declaration of disagreement with such action. On receipt of 
a Notice of Disagreement, the regional office reevaluates the 
veteran's claim. If the denial is continued, the claimant is 
provided, usually within 90 days of receipt of the Notice of 
Disagreement, a Statement of the Case. The provisions of 
38 U.S. C. § 4005 require that the Statement of the Case 
contain a summary of the evidence, citation and discussion 
of the pertinent laws cmd regulations, and the decision on 
the issue as well as the reasons therefor. The Statement 
of the Case is designed to assist the claimant to under- 
stand the law and the evidence relied upon, as well as 
^ the evidence lacking to establish entitlement. With 
. the Statement of the Case, the claimant is provided 
with a form which provides instructions for completing a 
Substantive Appeal. (A sample of this form is attached 



192 



3. 



as Exhibit 2.) The claimant Is also notified of the right to 
appear at a personal hearing before the Board of Veterans 
Appeals In Washington, D.C. The personal hearing may also 
be held before a traveling section of the Board of Veterans 
Appeals which makes periodic appearances at regional offices. 
In lieu of either of these alternatives, a claimant may also 
request a hearing on appeal before members of the' regional 
office, the transcript of which Is forwarded to the Board 
of Veterans Appeals In Washington. 

Following any hearing £ur»d the timely receipt of a Substantive 
Appeal, the case Is certified to the Board of Veterans Appeals. 
After a complete and Independent review of the claim on the 
basis of all of the evidence of record, the Board renders Its 
decision. The Board's action may be to allow the claim, deny 
It, or remand the case to the regional office having Jurisdic- 
tion for further development. In the absence of obvious error 
of a material and reversible nature, the Board's decision is 
final. Section ^OCJ of title 38 requires that all Board 
decisions contain separately stated findings of fact and con- 
clusions of law. As a matter of formal policy, all Board 
decisions contain a summary of the contentions and evidence, 
a concise statement of applicable laws and regulations and a 
discussion and evaluation Intended to respond to all arguments 
raised and afford a ..c?>i'iplete explanation of the decision on 
each issue. 



193 



Adn.inlstration 



NOTICE OF PROCEDURAL AND APPELLATE RIGHTS 



We 
your 



our decUon oo fbe evidence of record in your caae and the applicable law. This e^lains 
and ^ipellate rights in connection with this dedMon. 



RB»RE8KNTATION . You may be i«praented, without chaise, by an accredited represenUtive of a 
vetenuM organJutJOD or other lervioe organization recognized by toe Adminiftntor of Veterans Affairs, or 
you may employ an attorney to aaaiit you with your daim. Typical examples of counsel who may be 
available include attorneys in private praictice or legal aid services. Tbe services of a recognized attorney are 
aubject to a marimum fee limitation of $10, set forth in 88 U^.C. S404(c). Expenses incurred in the 
prosecution of a claim must be approved in accordance with 88 C.F.R. 14.634(b) prior to demanding or 
receiving reimbursement from tfae claimant. If you desire representation, let us know and we will send you 
the necessary forms. If you have already designated a repreamtative, no further action on your part is 
required. 

NEW EVIDENCE . You may submit additional evidence to strengthen your claim. It is in your interest to 
aend us any new evidence as promptly as possible. We wQl carefully consider it and let you faiow whether it 
changes our decision. 

PERSONAL HEARING . If you desire a personal hearing to present evidence or argument on any point of 
importance in your claim, notify this office and we wiU arrange a time and place for the bearing. You may 
faring witnesses if you desire and their testimony will be entered in the record. The VA will furnish the 
heanne room, provide bearing offidalE, and prepare the transcript of the proceedings. The VA cannot pay 
any other expenses of the hearing, since a personal hearing is not required. 

PEAL . You may appeal our dedsTon to the Board of Veterans Appeals at any time within one year 



TOI 



m the date of this letter if you believe the decision is not in accora with the law and the facte now of 
record. You can start the appeial process by filing a Notice of Disagreement. You may do this by writing a 
letter to this office stating that you wish to appeal. If more than one benefit is involved, you should 
identify the benefit or benefits for which you are appealing. If you decide to appeal, we wUI advise you 
further as to your procedural rights as your claim progresses throu^ the several stages of the appeal 
process. 
NOTE: For fuHher information about appeals, tee VA Pamphlet 1-1. 



VA FORM 



1-4107 



£i,?i.?^PF* ^* FOWrl 1-4107, NOV It7>. ^u J. OmnniM niMJin onte. 1IU-U1.Mt/Mlt 
WHICH WILL NOT BE USED. 





EXHiBrr 1 



194 







lUPOKTANT. Rrad msiruction& oo rrvetftr 
tide beforf filling in fofn. Coaplete all 
items ful]). Send this appeal to the VA of- 
ficf mhich TPade the decision be iPfi appealfd 



1 LAST •«*«£ - riKS-* H&VC -M<D3k.t hAvC D' ^ETCn* 



•) 2 i*«fcLiR*sCt f'4,E NO O" b.OAMi.0 1 Cu*tK fi.t 



^J*'DO* L J child D*'0'^*'g'' LJ >*^»<CW LJ •■**»•■■ ''' ' 

% MAME O' Claimant fif othn fA*n i«irr«nj 



: NO (Iriiluat pitha, 



^ 6»Tt c« oEcii'ON ecNG »p^e*lco 



• *DD"ESSe« CL*iv«N^ 'AwKfr^. 4 ,frM-( or, i(»ie * i^*> i©d*j 



• V* or*iC^ W-'C" MADE OEC'S-ON •E>n& »**t*>.ti 'Co 4 5(«.^ ■ 



tEPRESENTATIOH 



S«« Par 6 of InttnichonB on r*v*r»e side 



HEARING 



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liont on rr\-cnr Bide 



t*. 00 TQU W'l^ tC BC •MEtCKT «T * 



LJ ^'tLO OrriCE LJ •*»**iNCTON D.C. 



NOTE: A pef«on»I hcann| is not necessan noi is a decision made ai tSf tire of the h«ann|. 



10 I TAKE ISSjE with the OECiSiOK CiTED *eOVE AND MEREBy PETiTiON TmE BDARC OF vETE'^t-.j APPEA-5 PCb RELIEF AS SET 
rOP"^M BElOM CSfare m apect/ic defatMhe benefiiM toaght on appra/ and your reasons /or btliexing that the mcuon appealed Iron n tnorttout 
Follow cmetutii the inttruciions m parsfraph 3 on the rcvorae aide J 



(Attach ^mnivnmt » 



It tlO^ATUME. e* CLAIMANT (X>r repfvavnrsdvrj 



VA fONw % Q 

«uo Mat '*^ 



»U*C"StOLt VA fOMM t^. JUN ttTf. 

»MiCM WILL HOT ■■ UMO. 



EXHIBIT 2 



195 



MISSION OF THE tOAMD Of Vtl tn<v«» wrtMM 
y^^aui «f VticTsni Apsult «u oulluhtd b) !•• to itctit tepuli fe> Wntfiii uniii Uot kjmifitttrtce k) iKr Vcuttni AimiiutTTthc 
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«wsM ^ tiw* 4>r*^"' ■"' MMriciwia m (Miikl Daraiew in \*Mi •■> ilu mitt ncai. 

•f NCMAl INFORMATION 
ttt h« v*m< d» r«^l w koc M »4iu4iatiM iuUot ir>k»*J m iprwl k) iW tcii at Vtirnti AfpuU (M U^I. 4004;t)). If ye 
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{!) VMf thr ^^IrrM Aiminitlfttio^ tfj^t —prtaiv tt^trmenl •» *u»t4r/if lie* .(f* *» *n«i«" •■ »W «to-i Tk» » i t<ei>n e 
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(J) Mr « 'i^iimtiot AfptMl • Tim UMBplcici tk« ^ft^»^ U. (kit ferm (VA FonB |.»J. foUo- i»>« iMtrumoM Wie* 

fRIVACY ACT NOTICE ^ , 

TV toformitioi. fiQuitud on Ail fom. fc lolithrJ witr )l UiC 400S;d)(J)!4; h k ».f fcr tV. Ie»r4 if. iirn!if,i«i '\»*"^' , 
dkiFtcmcni nquiruu .pB.D.tt !.««. iiJ ii m*ni.iocy fo. tempteiar, of jroui «p<«1 Th« tfiform.iar mi, ke duclot.d ouii.it tkt VA , . 
mZntti k, b« . « M Sitti ii. Ikt -NoiiM. of lr.itm. of VA %.cmir -kick i..r Wtn pukUk.d ». tke F.dtr.. Rtfj.tr ii. ««ra.»: 
«itk iki rn.«y A« of l»74. FuJutt to fumiik ikii inforinjtioa «ili lut ae tirmn tfTto on U) oiket WocCt to wkitk jai^ nu) b< «niU. 

INSTRUCTIONS , , , j ^ 



1. WHOCANSICN ASU»CTANT1VEArF£AI-A>uhuaii«( 
affu} mjyW itfncd ky: 

(•) tIu ckimuit ftnoaiSy, 

A) Tkt »(fftdii«d iterctnuriK of • Mtvict acpniutiea 
frovidcd • poprr pewtr ai tttorar) k iiti. at by an tRoracy 
fi«*idi^ laropci dcchrttiee of ttprcwMitioB i> filtd. 

>c) Tbc fiiudttn or atkti ftofrt fiduciw^ af an 
fccoBipticBi tUiinun, ar, if aenc, ky ikc a«n af lai ar aaar 
fcaad. 

a. TIME UMJT FOR. FILINC. A nktianiin tppu! ihouU W 
Sltd Wilkin to djyt tfin At •uicmtni af ik* caw ii muiti (K 
iMji arkcR I at Biorc conicBii<( cUiminu (K bmktdj. Tki 
30^> inrioi} •pplxi only vktrt ent cUim k tZomti tni aaotktr 
4tBiti, or tBevinct of one ekun wculd mult in t kutt ftjmnt 
•o (notkcr dtimani. An ciifaiion of amt au) k panud (or 
feed uut. A wikiuniiTC *ppe>} aettiiurkcd prior le iipirttaeB 
af ikt tpplcikit period aill ht actcpicd at datly fifaa. (M 
V3.C 4005(4)11). 400SA(kJ). 

I. FORM OF AFFLICATION. TKii form ikould k —i far 
fiin| a aikitAniin appul' Tk kncfu toufki leun k daarty 
Ucasifad. Tkt litt el iht anion tffaUi ikould k iaMrtad ia 
kta 7. In eemplttini Vtm 10. an tkoulj k lUrn to iti ftn 
anon of fact ar b« ttSrti to kn ken tntit In tke daritiaa - 
Aat b, dw fcaioni far tfiumciM ariik At itrinoa Wia| 
appcakd. htteftr ai pettikk.raliit allRaitnwnti lo iptdfW baat 
h dit •uitmcni of ikt caw. Utniify any ttiicinant af (an la dtt 
■attmcfu af ik* caat vitk «kick ikcrt k diuritmaai. IW 
Aimam will k« prctutBtd la k in acttmini anik faru autaJ » 
•kick ao ta<tpt>oa a takta. An appu] wkick k bwufTiciaai Bay 
kaianuatai. 

«. riACE TO SEND SUBSTANTI VS AFFEAL. Tkt aakiaailat 
Mpaal aKoold k aiailtd la at thi wiik da VaiaraM 
Mminiiiratjoa afTKi arhick aaiarad tk 4iciaieB kin( a p yaa hl 

t. SUSMISSION OF ADOinONAl BVIDENCZ. Wk«t '• 
•«k«aatn« appaal b timtU tkt, • laaMXukk tiiaa irfB k* 
fMii. t ittoniad, la Rt addittoaal t«>d<a<a Wfata Saal 
laatidcTaiioa af tk appaal. Any additional rriitnca Aoald ka 
•akaUntJ la da VaiaraM AJmiaUsuioa alfica b wkkk At 
aypaalwuBai 

RtFRESENTATION. A iltlmaM auy W rtarnaaiai b «ft« 

a Rcefnkai ttrrica atpn l iidaa 

' Miatoty b kniitkd, aa ky W 

anonwy arendtd a fropar tfatlantioa af npraaaautiaa b 

fcrakkd Oaly ant itprtMnutlva b pitmlnad ai aay aaa dm* la 

fk proiacBiba of a aptcllW dalia. A far* fat filuii paw« af 

anoiBty aiay k akatnti kaia tk tacal Vatttaai AiiaMaoadaa 

.affaa. (M CnilOJSt. I*JM. ItOSI) 



fiTmutiaa af kb claim ky i 
fr««idtd a preect fowat af i 
anonwy atendtd a propat 



7. HEARINC OK AFFZAl (Kc*<i evtfuly) 

a Hitrinf C'mlti. If Driitti, AnJ CcnJi^ltJ InfonntV 
A kaarini wiU k Butiti wStrt a claimani or ku ttprtunuii' 
aaprciict a detirt lor a amonaJ appearance Tkt %oui epcrai< 
andtf Ryki of hactica. ayr m poccdyrct art tnforrna! Tkt) a; 
ttufKti 10 auki fe aaiy (or a cUimtni or ku rtpreicnunot t 
prtftnt arpimcnt or tettuneny rclcvtnt ani Butrru' to tf 
apptHait itiyc. SdSci rulei of cvidincr art not foUoweJ A 
andcnct en file a ikroyfk), eeruidciid rcfudjeu of wkeiker 
kaarin| kat kacn kid 

tunnTA 



ITAST: If « kan'n/ it dtiirti mck r 
hy tampUimi Otmi tA ani tt. w>d>it 
I- Vttt'tv Aaminittittian fitU ef/tet c 



rrfxiK ikauU I 

eatm£ ttte pivr c 

h'uhington. D C 



kran'"/ 

fiat ibk|)«»«/rapli e kloi. ) 

(. VKe ttt\ Apptm. Tk ckimant. kit rtprctcnutivt. c 
ketk, auy k kard. Etiktr au) ananfr iet ik aolontar 
appearance of anifwua to tatnfy. 

(. FWr ef Httnit A kcarinj tat) k kid ai ent af tk 
faSowini plicet witcied by tke claunant or Kit reprnenuti»e 

(1) la Wa>Kui|ten, D.C kfort a Sactioa ef ikc Board o 
Vatcrwu Appaak. • » i 

(2) la lilt Vtitraru AimimtBitien fitid enici wkic' 
ef>(inal) iacidti ik ckire or. if aiore con>irucni, any otke 
Vatarani Adminitirttion field eftict wkick kai approprai- 
pcnonna! and lacknieal facibtiai foe tondixti'nt a kakhnf In iKa 
t««Bi. (kt f«td ofTict periannti act at a kcarmf ajcnry far tk. 
•oarj ef Vtitrtni Appiak.kyi to not decide tke appeal 

Tkrt k ao Bteaitien far ik Co»emmtBi to bear any tiptnii 
bicurrtd b« tfir claimant, kit ceunul at witntuci B> ceantciior 
aritk antnotnct ai a kaarint 

•. ORSEK OF CONSIDEIUATION. Appaa!i are iacinti and 
Miuidcrtd b> Ik ardo to wKick ikty art racci.td aactpi ika< 
far lofneient cauw tk teard toay advance a caie an ibc aockti 
(M V.1-C 4007 J 

>6kViutt6M-v 

a»*tai aiuiraa (va ■•> aaaai 



M*aat aaeoaaca I 



196 



SECTION II 

OVERVIEV; OF THE BOA?D OF VETERAHS APPEALS 

ES TABLISHMENT 

The Board of Veterans Appeals Is the appellate body charged 
with the responsibility to make final decisions on clal-ns 
appealed fron the various field offices of the VA. Its 
Independence In that role Is a mainstay In assuring the 
fairness of VA claims decisions. During the period fron 
1920 to 1933, an awkward, cumbersome and tlme-consumf.ng 
appellate system for veteran claims developed. Almost 
every type of administrative board was tried In an unsuc- 
cessful attempt to develop a permanent and workable system. 
A number of appellate bodies developed whose Jurisdictional 
boundaries were obscure. Other problems with the system 
Included a lack of centralization, uniformity, and finality. 
By 1933, there were pension review boards, area boards, a 
Central Office Board, a Council on Appeals, the Solicitor's 
Office, and finally, the Administrator, all responsible for 
deciding appeals. 

The Board of Veterans- Aplpeals was created by Executive Order 
6230, July 28, 1933. 'From the very beginning, the Board was 
designated a quasi-Independent tribunal and was Intended to 
provide one review on appeal to the Administrator of Veterans 
Affairs. The Individuals responsible for the design of the 
Board were looking to establish an Independent review board 
which could serve as a model for all agencies of the Federal 
government. The Independence of the Board was strengthened 
by providing for life-time Board member appointments which 
required the approval of the President. The Board Itself 
was associated with the Agency for budget and personnel 
purposes while the Chairman of the Board was answerable only 
to the Administrator. To this day the Board has remained 
wholly Independent from the VA In Its decision making and no 
Administrator has Interfered In thJs process. The Indepen- 
dence of the Board members was recently reaffirmed when the 
President excluded them from Merit Pay under 5 U.S.C. 
5^01(b)(2). The basis for this exception was that Inclusion 
of this group In Xerlt Pay could adversely Interfere with 
their quasi- judicial Independence. 

O RQAWIZATION 

The operations of the Board of Veterans Appeals are directed 
by a Chairman and Vice Chairman, both of whom are appointed 
by the Administrator with the approval of the President. By 



197 



statute, the nuT.her of Board nembers Is limited to 50. These mem- 
bers sre currently assigned to 17 appellate sections. Each 
section Is usually coniprlsed of three Board members, ■.one of whon 
}s designated CnieT Member. Each section has from «lx to seven 
rtsff attorneys who Initially review the appeals and draft pro- 
posed decisions. The decision Is not considered to be final 
until all three Board me-nbers have reviewed the entire record, 
signed the decision, and the decision has been dispatched. Tne 
deliberations of the Board members are entirely Independent and 
their decisions must be unanimous. The Chairman or Vice Chalrmar, 
must participate In the decisionmaking process In those situations 
wherein there Is a dissenting opinion and has the authority to 
concur with the majority of members to finalize the decision 
(38 U.S.C. S ^003{b)). If agreement cannot be reached, the 
Chairman or Vice Chairman has regulatory authority to expand 
the voting panel (38 C.^.P. S IS.l^JS). 

APPELL ATE PROC EDURES 

A general description of the Board's appellate procedures Is 
included In Section I of this Appendix and will not be repeated 
here. There are, however, certain aspects of the Board's proce- 
dures that merit further' dlscussl on. 

Advisory Opini ons 

During the course of their deliberations. Board menbers may seelc 
an advisory medical opinion. In cases Involving a medical con- 
troversy, the record may be referred to the office of the VA 
Chief Kedlcal Director, the Armed Forces Institute of Pathology, 
or an independent medical specialist. These opinions are used 
for advisory purposes only. Although they are usually Included 
in the text of appellate decisions, Board ner:ibers are free to 
accept or reject them. These opinions are extrenely vaiuatle 
In areas of serious medical coMplexlty and are accorded great 
weight bv the Board. Although Board menbers may obtain these 
opinions* on their own Initiative, an appellant or representa- 
tive may also request that one of these opinions be obtained 
prior to disposition of the appeal. 

Finality^ Reo penin g .and_Reconsider^tlon 

iAH questions on claims Involving benefits under the laws 
*«dnlnlstered by the VA are subject to one review on appeal to 
the Administrator. Final decisions on such appeals are made 
by the Board. Except for Insurance appeals, there Is no 
recourse to the Federal courts if an appellant is dissatisfied 



198 



3. 

with the Board's decision. (3B U.S.C. $5 2il(a), 78^4, UOOH'^a)). 
'A claim can be reopened after a final deterr.l nation -has beco-e 

final or after a Board of Veterans Appeals decision by sub- 
Jtlttlng evidence wh' ;h would support a new factual basis for 
"k decision (38 U.S.C. S iJ00i<(b)). This, In effect, constitutes 

a new clalTn. 

Although appellate decisions are final, they can be reviewed at 
any tJme to determine If there is an obvious error of fact or law. 
This "reconsideration" may be Initiated on the Board's own notion 
or tJ.at of an apoellant. (38 U.S.C. S *»003). Reconsideration 
rtav be requested by filing a written brief In support of this 
rotlon, specifying those elements of the decision which are either 
factually or legally erroneous. The brief will be reviewed by the 
Chairman of the Board. If It Is believed that an adequate argunent 
has been made In support of a finding of error, the records will 
be dr<cketed for reconsideration and a panel assigned to review the 
merits. Normally the panel will consist of those Individuals who 
were the original signatories to the decision plus three additional 
Board members. If It Is determined that there Is no reasonable 
argument supporting a finding of error, the appellant will be 
notified that the, request for reconsideration has been denied. 
Reconsideration is- limited to a review of the prior decision 
and the evidence of record which was before the Board at the 
time of that decision. (38 C.F.R. $§ IS-l'iB through 19.152). 

P re c.e d e n c e ._a.nd _ Aonel late De cisio ns 

Board of Veterans Appeals decisions are not binding precedents; 
however, the Board strives to maintain unlfomity and consistency 
In the deliberations of Its 17 3oa«*d sections. The majority of 
decisions Involve dissimilar medical histories and health 
patterns of Individual veterans and, therefore, must be 
decided rn their own merits. 

In addl: : on to statute and Agency regulations which are blndln- 
upon the Board of Veterans Appeals In Its deliberations, 3B U.S.C. 
$ iJOO^iCc) specifies that Instructions of the Administrator and 
precedent opinions of the General Counsel are binding upon the 
Board. (See also 38 C.F.R. S 19.103.) 

Thfre are many nanuals, technical bulletins, circulars and other 
. •flmlnlstratlve Issues which are published by the various depert- 
*oents of the Veterans Administration. Unless a particular publi- 
cation Is signed by the Administrator, It Is not controlling m 
appellate decisions. Board members may review sections of these 



199 



4. 

publications for lnrorT.atlon purposes and backgroand, or to assure 
a claimant received proper procedural protections, -but they are 
not required to follow the dictates of these Issues. 

BVA WORKLOAD AND RESPO NSE TIMS 

The Board decides approximately 3^,000 appeals a year. Of 
that nunber, approximately 13 percent are allowed, IM percent 
remanded, and 73 percent denied. The appeal process Is begun 
by the clalmart filing a notice of disagreement with the field 
office. For fiscal year 1981, 66,000 such notices were filed, 
^0,000 of wliich were prepared for transfer to and review by 
the Boarl. 

Since Its formation in 1933, the Board of Veterans Appeals has 
entered more than 1.5 roJlllon decisions. During the pre-ststenent 
of the case period (1933-1963) all appeals were sent to the Board 
for resolution. From about ^0,000 In the early years, the nun- 
ber of appeals fell to less than 10,000 In 19^^ — at the height 
of World War II. The greatest number of appeals came In 1950 — 
more than 80,000. Enactment of the statement of the case law 
In 1963 effectively Cut the number of appeals that reached the 
BVA by one half. In 1970, the number of appeals fell to less 
than 21,000. 

The VletnaTi-era peak cane In 1972-73 when nearly 30,000 appeals 
reached the Board. The number again began to grow in 1975 and 
since then there has been a sharp upswing. The number of new 
appeals to the BVA reached it2,000 in 1982 and the Board's 
pending workload stood at more -than 27,000. This trend con- 
tinues. We attribute the heavy appellate workload to three 
broad factors: 

First, veterans, like other menberb o' our 
society, have become nuch more litigious than they 
were In the past. We note this in the fact that we 
are getting more appeals at a time when the number 
of claims being filed is declining. 

Second, aging veterans, pushed by economic con- 
dltioni, seek whatever sources of income are available 
to them. Veteran benefits such as compensation or 
pension are areas in which many seek to increase their 
Incomes. 



200 



Third, and e ver^- significant factor, is" the better 
training and more active roles taken by the national 
•ervice organizations. These organizations are doing 
an excellent Job in assisting veterans in developing 
their elaliss and pursi/ing their appeals. 

The Board believes that total response time to an appeal shoulo 
be about eleven months — seven In field station processing and 
four at the Board. Unfortunately, appeals are taking much 
longer than that at this time. Since the aharp upswing 
in the nuraber of appeals, the Board's response time has 
shot from 2 1/2 months in 1976 to nine months in 19B2. VA 
field stations have been able to cope with the workloads 
and have held their response times to an average of about 
seven months. 

The Board has taken several actions to reduce the pending case- 
load and cut back on response tine. It has formed a skeletal 
17th aectioh from the resources provided for 16 sections. It 
has also modified and shortened handling procedures and devel- 
oped a positive case management system through automation of 
its control and locator functions. It has taken steps to 
Improve and to autonate its word processing capabilities. 
Despite the Board's best efforts, however, the appeals keep 
coning — faster than they can be handled. 

Because of the increasing number of appeals being filed and the 
corresponding increase in the Board's average response time, we 
recently submitted proposed legislation to Congress that would 
permit the Board to expand to up to 65 members and 21 Board 
aections. In the absence of Judicial review of BVA decisions, 
we anticipate that the requested increase in Board membership 
will be sufficient to meet the Increasing appellate caseload 
and to eliminate and prevent the recurrence of the present 
backlog of pending cases. 



201 



^ 



Board of Veterans Appeals Washington C 20420 



Veterans 

Administration jyL 2 2 19I|3 

July 22, 1983 

In Reply Refer To; (01) 
. Honorable G. V. (Sonny) Montgomery 

Chairman, Committee on Veterans' Affairs 
House of Representatives 
Washington, D.C. 20525 

Dear Mr. Chairman: 

My staff has obtained some information from the Statistical and Reports 
Branch, Office of Hearings and Appeals, SSA (Ballston) and from the 
Office of the General Counsel, SSA (Baltimore). The stages of 
adjudication at Social Security are as follows: 

1. Claimant files with the local SSA office and that office sends 
claim to state agency for initial determination. 

2. If denied, the claimant has 60 days in which to file a request 
for reconsideration. Request for reconsideration goes back to the 
state agency for review. 

3. If notice of reconsideration is a denial, the claimant has 60 
days in which to file a request for hearing. This is an oral 
hearing (with or without representation) before an Administrative 
Law Judge (AM). Out of 29,172 dispositions in May 1983 there were 
15,206 allowances (52.1%). The response time from the request for 
hearing until the ALJ disposition was 185 days. 

4. If ALJ decision is a denial, claimant has 60 days in which to 
ask for Appeals Council (AC) review. Appeals Council can deny the 
request for review or it can affirm or reverse the ALJ decision. 
Out of 9149 dispositions in May 1983, there were 31 affirmations, 
171 dismissals, 7,988 denials, 482 allowances and 477 court remands 
processed. The allowance rate was 5.3%. The latest response time 
information available is for FY 1981 when the average response time 
for all dispositions was 67 days. There were 63,559 total 
dispositions at the Appeals Council level for FY 1982. Over the 
years their allowance rate is 5%, remand 7% and denial rate 88%. 

5. If AC decision is a denial, claimant has 60 days in which to 
file a civil action in U.S. District Court. About 20% of the AC 
denials are appealed to the courts. There were 12,045 new court 
cases filed in FY 1982 and 22,000 are expected for FY 1983. In FY 
1982 there were 1,172 allowances (about 10%). The denial rate is 
about 80%. 

Sincerely yours. 




202 



HEARING BEFORE THE 

COMMITTEE ON VETERANS' AFFAIRS 

UJ5. HOUSE OF REPRESENTATIVES 

ON 

JUDICIAL REVIEW OF VETERANS CLAIMS 

STATEMENT OF LOREN A. SMITH 
CHAIRMAN, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 



Accompanied by: 

Richard K. Berg 
General Counsel 



July 26, 1983 



203 



Mr. Chairman and Members of the Committee: 

I am Loren A. Smith, Chairman of the Administrative Conference of the United 
States. I want to thank you for the invitation to testify before your committee. I am 
accompanied by Richard K. Berg, General Counsel of the Conference. 

The Administrative Conference is a Federal agency whose statutory mission is to 
perform studies and recommend improvements in the administrative procedures used by 
Federal departments and agencies, 5 U.S.C. S 574. We try to assist the agencies and 
Congress in developing procedures that provide greater fairness and expedition for 
participants in the administrative process, more effective attainment of agencies' goals, 
and lower costs to the taxpayers. 

The Administrative Conference has 91 members, approximately 50 from the 
departments and agencies in the Federal Government and 40 from the private sector and 
State or local government. The 91st member is the Chairman, who is appointed by the 
President with the advice and consent of the Senate. The Conference takes formal 
positions only through the votes of our membership at our semiannual plenary sessions. 

The Committee has asked me to discuss the question of whether to provide for 
judicial review of Veterans Administration benefit determinations. As you know, the 
Administrative Conference considered this question in 1978, and decided, after a full 
debate, not to take a position. Although I arrived at the Conference in 1981, I have 
familiarized myself with the record of our consideration so that I could describe to you 
what we did and did not do and why. 



204 



Let me first describe to you briefly how the Conference process for adopting 
recommendations and other formal position statements works. The Conference operates 
through a standing committee system. Each member of the Conference serves on one of 
our standing committees. (At present we have six standing committees, although in 1978 
there were nine.) The committees usually act on the basis of proposals and reports 
prepared by consultants, often academics, engaged by the Office of the Chairman. 
Ordinarily, the committee will meet several times in the course of considering a report 
and preparing a recommendation. Comments are sought from affected agencies and 
interested members of the pubUc. Frequently, in recent years, we have published notice 
of the proposal under consideration in the Federal Register in order to obtain a broader 
range of comments. When the committee reports out a recommendation, it is referred to 
the Council of the Conference, which serves as our board of directors. The Council has 
the responsibility for determining the agenda for the plenary sessions of the 
Conference. If the Council judges that the proposal is ready for consideration by the 
Assembly of the Conference, it is placed on the agenda for the next plenary session. At 
the plenary session the proposal is presented by the chairman of the committee which 
reported it, assisted by the committee consultant. It is subject to full debate and may be 
amended, approved or rejected. If approved, the recommendation becomes an official 
position of the Conference. It is published in the Federal Register, and we in the Office 
of the Chairman are responsible for bringing it to the attention of those to whom it is 
addressed. 

To turn to our study of judicial review of VA decisions, we commissioned this 
project in 1978 because we were aware that proposals were then pending in Congress to 
provide for such review. We selected as our consultant Professor Frederick Davis of the 
University of Missouri School of Law. Professor Davis was a recognized expert in 
administrative law, who had previously written on the subject. He prepared a report. 



205 

-3- 
which was referred to our Committee on Judicial Review. The Committee, after 
considering the report and obtaining the views of the VA, the Department of Justice and 
the principal veterans' organizations, approved a proposed recommendation which called 
for amending 38 VJS.C. S 211(a) to permit judicial review of Veterans Administration 
decisions. 

The Committee's proposal, a copy of which I attach, called for providing for judicial 
review of VA decisions in the U.S. district courts at the instance of any person adversely 
affected. Review would be on the administrative record. That is to say, the court would 
not be asked to retry the facts but to determine whether on the record developed before 
the VA, the Administrator's action was arbitrary, capricious, or otherwise unlawful. The 
recommendation emphasized that it was not intended to affect the "general informality 
and flexibility" of the decisionmaking process at the VA. 

The proposed recommendation was considered by the Assembly of the Conference 
at our Ei^teenth Plenary Sessicai in December, 1978. After a lively debate, the 
Assembly voted to table the proposal, that is to say, to take no action on it. (We have 
furnished this Committee a transcript of the debate in connection with an earlier hearing 
on this subject.) 

Briefly, it was the position of Professor Fred Davis and the Judicial Review 
Committee that the principle of unreviewable administrative action— at least with 
respect to cases such as claims for veterans' benefits, which do not involve delegations of 
broad administrative discretion, but rather the application of specific statutory standards 
to individual situations— is wrong and contrary to our general practice. Furthermore, 
while the proponents admitted that they could not show that the VA's administrative 
process worked badly or unfairly, they cited anecdotal evidence of occasional 



25-550 O— 83 14 



206 



-4- 

arbitrariness, and they argued that without judicial review as a means of inquiring into 
VA's practices, it would be hard to say how well the system as a whole works. Finally, it 
was urged that under the Committee's proposed recommendation, which called for a 
fairly narrow standard of judicial review, it was unlikely that the additional burden on 
the courts would be significant. 

The opponents of the proposal, notably Professor Kenneth Gulp Davis, the late 
Judge Harold Leventhal, and Professor Antonin Scalia (a former Conference Chairman, 
who is now serving on the UJ5. Court of Appeals for the D.C. Circuit) argued that 
nonreviewability of VA determinations is not unique. One example cited was the 
nonreviewability provision applicable to claims under the Federal Employees 
Compensation Act, 5 U.S.C. § 8128(b). The opponents also feared the additional burden 
on the courts, and doubted that occasional review by Federal judges unfamiliar with VA's 
statutes and regulations would really improve the results in VA cases. Finally, the 
argument was made that even though the recommendation did not call for more 
formality in VA procedures, the prospect of judicial review would tend to have that 
effect because the administrative record would be developed with an eye to the 
possiblity of judicial review. 

In the course of the debate a number of compromise positions were suggested. One 
was to permit judicial review, but only as to constitutional questions or only as to 
questions of law; review of the VA's factual determinations or exercises of discretion 
would be barred. Another was to provide review, but in a specialized court, a Court of 
Veterans Appeals. Ultimately, however, the Assembly voted to table the entire 
proposal. I think this must be regarded not so much as a positive endorsement of the 
present statutory provision as a judgment that the proponents of the recommendation had 
not carried their burden of proof, a feeling, perhaps, that "if it ain't broke, don't fix it." 



207 



-5- 

At any rate, although the decision to table did not preclude future Conference action on 
the subject, the Chairman's Office and the Judicial Review Committee concluded that it 
would not be worthwhQe to pursue the subject further at that time, and the Conference 
has not returned to the subject since then. 

Thus, my report ends on a note of frustration. I am not sure how helpful it is to this 
committee, which is considering the question of judicial review, to know that five yesirs 
ago the Administrative Conference studied the same question, but was unable to reach a 
conclusion. However, having examined the record of our previous action with some 
knowledge of how Conference members tend to think, I do believe that the Conference's 
problem was that it had attacked the problem at the wrong end. It had attempted to 
prescribe a cure without having first established to its satisfaction a diagnosis of the 
ailment. The Judicial Review Committee's argument for providing for review was stated 
primarily as a matter of principle, and as such it failed to overcome such practical 
objections as the prospective burdens on the courts and the unfamiliarity of the courts 
with the subject matter. 

The Conference would have been wiser, I believe, to have devoted more attention 
to the VA's own processes, with a view to attempting to pinpoint the causes of 
dissatisfaction, if any. This is true because different symptoms are likely to call for 
different remedies. For example, if the problem is arbitrariness in the statutes or in 
VA's interpretations of the statutes, improved procedures within VA will offer no help 
because an administrative tribunal cannot be expected to question official agency 
positions. However, judicial review limited to certain questions of law might be useful. 
Indeed, it is my understanding that notwithstanding 38 U^.C. § 211(a) the courts will 
examine the constitutionality of the statutes the VA administers and the legality of the 
regulations it issues. Johnson v. Robison. 415 U.S. 361 (1964); Wayne State Univ. v. 



208 



-6- 
Cleland. 590 F.2d 627 (6th Cir. 1978). If, on the other hand, the problem is inconsistency, 
bias or other weaknesses in the decisional process, judicial review under a narrow 
standard of review will at best provide occasional relief in egregious cases whereas 
improved managerial controls, a specialized reviewing body, or, perhaps, an agency 
ombudsman, might be a more constructive solution. I think the members of the 
Conference felt a natural reluctance to prescribe a solution where there was not a clear 
demonstration of the size and nature of the problem. 

It seems to me that there is a lesson for this Committee in our experience. You 
have, of course, much greater familiarity with the programs and the procedures of the 
Veterans Administration than did the Conference. And oversight hearings are an 
excellent means for inquiring into weaknesses and dissatisfaction with the Veterans 
Administration's processes. Once you have reached conclusions with respect to the 
problems, if any, within the VA, 1 believe you will be in a much better position to 
determine whether there should be judicial review and what should be its form and scope. 

I am grateful for the opportunity to appear before you, and I would be glad to try to 
answer any questions you may have. 



209 



Attachment 

RECOMMENDATION PROPOSED BY THE 
ACUS COMMITTEE ON JUDICIAL REVIEW 

RECOMMENDATION 78- 

JTTOICIAL RETIZW OF BEKEFITS DECISIONS OF 
THE VETESANS ACMI^tlSTSATIOM 



Hia Veterans AdaiiiiiatTacion annually discribucaa approxiaacalj 12 billion 
dollars in various Cypea of benefits. Its procedures for handling cla-fms for 
Chose benefits are informal. In oosc cases, a elaimanc need do nothing aore 
t:han file the proper applica.tion form. The VA staff then collects the evidence 
necessary to establish whether the daiaant is eligible for the benefits sought. 
If the claiaanc disagrees with the decision on the claim, he or she may appeal 
to Che Board of Veterans Appeals within the agency. The decision of this 3oard 
Is maAa after an Independent review of the file, which contains all of the 
materials collected by the staff or submitted by the claiaanc, and an informal 
>^aaTHpg if one is requested. 

Section 211(a) of Tide 38 of the United States Code provides that the 
decisions of the VA. in administering its benefits program "shall be final and 
conclusive and no other official or any courc of the United States shall have 
power or jurisdiction to review any such decision by an action ta the aature of 
waT.><am« or Otherwise." (There are exceptions for some Insurance and loan clai=s, 
as to which there are specific provisions for ju d icial reaiedies elsewhere in 
Tide 38.) The VA is exceptional, even among federal agencies administering 
benefit programs, insofar as disappointed daimants have ao access to the courts 
to test adverse agency decisions. Although the preduslon is of long standing 
and was reaffirmed and made more stringent in 197C, it Is anomalous, and restricts 
the full opportunity of daiaants to vindicate their rights. 



210 



- 2 - 

In connection with this recommendation concerning judicial review of VA 
decisions, the Conference has not studied the VA's own decisionmaking processes, 
but those processes appear to be satisfactory to major groups concerned with 
them. The Conference does not intend that the judicial review that It recom- 
mends should affect the Informality and flexibility of the VA's internal 
procedtires . 

This recommendation does not address the question of fees for attorney 
representation before the VA or In court. It assumes Chat claimants would be 
able Co engage attorneys to maice effective the recommended opportunity for 
judicial review. Congress should consider whecher to permic claimants to 
pay reasonable compensation to attorneys for representation in judicial review 
proceedings, if such compensation is restricted by 38 tJ.S.C. §§ 3404(c) and 
3405 which in effect limit the fee for representation in a VA benefit claim 
matter Co ten dollars. 

Recommendation 

1. Section 211(a) of Title 38 of the tJniCed States Code, which precludes 
judicial review of Veterans Administration benefit decisions, should be 
amended to allow judicial review at the instance of any person adversely 
affected or aggrieved by such a decision. 

2. Judicial review of Veterans Administration benefit decisions should be 
obtainable by a civil action commenced within 120 days after notice of 
the decision is mailed to the claimant and any other party co the agency 
proceeding, or within such further time as the court may allow upon a 
showing of good cause. In the Uniced States district court for che 
judicial district in which the plaintiff resides or in the United Scaces 
District Court for che District of Columbia. 



211 



- 3 - 

3. Consistent with current practice in judicial revlev of Informal agency 
adjtidlcatlon, the administrative record for review should be adduced as 
follows: The VA would file with the reviewing court, as part of its 
answer to the complaint, any findings of fact and conclusions of law on 
which the decision was based and an Indez of all materials considered In 
making Its decision, or otherwise contained In the VA files on the veteran 
whose service gave rise to the claim. A copy of the findings of fact, 
conclusions of law and the Index would be provided to the plaintiff. 

The plaintiff would be permitted to make reasonable requests for production 
of Indexed Items that are relevant to the prosecution of his or her case, 
and the VA would provide either access to or copies of such materials. 

4. Review should be on the administrative record thus adduced. The parties 
would reproduce for the court those portions of the administrative record 
relied upon by them or requested by the court. 

5. The scope of Judicial review should be that prescribed in pertinent 
subparagraphs of 5 U.S.C. § 706(2), that is, subparagraphs (A) through (D) . 
However, regardless of the specific formulation of the scope of judicial 
review. Congress- should make clear that the review statute is not intended 
to affect the general informality and flexibility of the VA's internal 
decisionmaking procedures. 



212 



American Bar Association 



3»A^»?^»' "^ ■•,-■: (.1 . 



D.C. 2C<K36 . (202) 331-22C'0 



STATEMENT OF 



FREDERICK DAVIS 
DEAN, UNIVERSITY OF DAYTON SCHOOL OF LAW 
PAST CHAIRMAN, COMMITTEE ON VETERANS, 
SECTION OF ADMINISTRATIVE LAW 



on behalf of the 



AMERICAN BAR ASSOaATICN 



before the 



SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 



of the 



COMMITTEE ON VETERANS' AFFAIRS 



of the 



UNITED STATES 
HOUSE OF REPRESENTATIVES 



concerning 



JUDICIAL REVIEW OF DECISIONS 
OF THE VETERANS ADMINISTRATION 



July 26, 1983 



213 



Mr. Chairman and Members of the Committee: 

I appreciate this opportunity to present the views of the 
American Bar Association on the propriety of permitting a veteran who 
believes himself aggrieved to seek judicial review of a decision of 
the Veterans Administration. 

I am Frederick Davis, Dean of the University of Dayton 
School of Law, Past Chairman and current member of the American Bar 
Association's Committee on Veterans of the Section of Administrative 
Law, and the author of a much cited law review article dealing with 
the constitutional and administrative problems which arise from a total 
blackout of judicial review. F. Davis,' Veterans' Benefits, Judicial 
Review, and the Constitutional Problems of "Positive' Government," 39 
Indiana L.J . 183 (1964). ! 

The American Bar Association fully supports the basic 
principle that there should be no absolute and unconditional preclusion 
of judicial review of allegedly unlawful decisions of the Veterans 
Administration and also the principle of removing the $10 limitation on 
attorneys' fees in Veterans Administration cases. 

In 1958 the House of Delegates adopted a resolution expressing 
its support of legislation which would permit judicial review of 
decisions of the Veterans Administration (Appendix A). In 1975 the 
House of Delegates reaffirmed that position (Appendix B). 

$211(a) of Title 38 of the United States Code presently 
provides that decisions of the Veterans Administration under any 
benefits program "...shall be final and conclusive and no other official 



214 



- 2 - 

or any court of the United States shall have power or jurisdiction to 
review any such decision by an action in the nature of mandamus or 
otherwise." 

Frankly, the effect of this statutory provision is to put the 
Veterans Administration above the law in the administration of its 
benefits programs and in the distribution of benefits authorized by 
Congress. Because the American Bar Association is committed to the 
proposition that no one should be above the law, it opposes this 
restriction. ^ 

The only other civilized country which has ever attempted 
so completely to insulate a bureaucracy from judicial control is 
England.- Although now a discredited practice, for some years 
Parliamentary draftsmen, in attempting to place administrative 
regulations above the law, were able to persuade Parliament to insert 
the following phrase, in enabling statutes delegating power to adminis- 
trative agencies: "...(A)ll regulations made under this Act shall have 
effect as if enacted in this Act." Since in England, Parliament is 
sovereign, English judges were compelled to give those words literal 
effect, even though they found them distasteful. 

A storm of protest led by leading English jurists (e.g. , C.K. 
Allen and Lord Hewart) produced the winds of change which have forced 
Parliament to abandon such practices. These odious statutory phrases 
which had put the actions of the bureaucracy above any judicial review 
or control, and which had been called, not inappropriately, "Henry VIII 
clauses," are no longer found in England. 



215 



- 3 - 

Paradoxically, in the United States, J211(a) which, in Henry VIII 
style, puts the Veterans - Administration above the law, still remains 
in force. How did such a relic from an era of bureaucratic tyranny 
get into the United States Code, and how has it survived? 

This "no review" clause crept into the law as a provision 
of the so-called "Economy Act" of 1933, a part of which was designed 
to give the Veterans Administration unrestricted power in the 
administration of its programs. This was an era marked by what some 
have called "economic fascism," and which was dominated by the idea 
that economic stability and progress could be achieved by assigning 
unrestricted power to economic and administrative groups. Just as 
absolute control over production and distribution enterprises was to 
be governed by codes adopted by private guilds under the National 
Recovery Act (NRA), so, also, the Veterans Administration was to have 
absolute control and unrestricted discretion in the distribution of 
benefits. Although the philosophy of that era was abruptly rejected 
by the Supreme Court when it held the NRA unconstitutional in the now 
famous case of A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 
A95 (1935), the no-review provision of the Veterans' Benefits Act 
(now 38 U.S.C. §211(a)) survives as a monument to the discredited 
economic philosophy of that era. 

It has survived, we believe, in part because the national 
burfjaucracies of a number of veterans organizations have an unrealistic 
fear that a repeal would weaken their capacities to advise and counsel 
veterans with service-connected claims. 



216 



- 4 - 

That fear, we believe, is totally unfounded. Permitting 
a veteran who believes himself aggrieved to petition the courts for 
relief would have no significant effect on the internal procedures 
of the Veterans Administration. Moreover, we believe that the 
number of veterans who would seek to challenge decisions of the 
Veterans Administration would be much smaller in number than has 
been projected. That is because the grounds for rejecting a decision 
of the Veterans Administration will be significantly limited under 
the various proposals that have been made and because a significant 
number of Board of Veterans Appeals decisions do not deal with the 
decisive issue of basic eligibility, but, rather, with petitions for 
increases in disability ratings. 

The American Bar Association believes that there is no place 
in American government for a closed system. The Freedom of Information 
Act and the Government In the Sunshine (Open Meetings) Act represent signi- 
ficant advances in assuring the American people that their government 
officials are complying with the law. To make the VA answerable in the 
courts to a legitimately based assertion of unlawful action on the part 
of the VA would be a similar advance. 

Although most judges who have faced challenges to VA benefits 
decisions have given a literal effect to the no-review clause (see e.g., 
Hahn v. Gray , 203 F.2d 625, 626 (D.C. Cir.l953)>"It was the purpose 
of that statute to remove the possibility of judicial relief even if 
the action of the Administrator was arbitrary and capricious..."), 
recent opinions have hinted that in a proper case involving an 



217 



- 5 - 

egregious interference with a constitutional right, that language 
might be disregarded. See Johnson v. Robison , 415 U.S. 361, 368 (1974). 

It is obvious, however, that our courts are inclined to avoid 
this constitutional issue if at all possible, and that a ruling on 
that issue would involve a direct conflict between what Congress has 
explicitly declared and what the courts believe to be a constitutional 
limitation. Permitting limited judicial review. of Veterans Administration 
decisions would avoid such an unnecessary confrontation by making it 
clear that it was never the intention of Congress to put the VA above 
the law. 

One of the most frequently expressed fears of those who are 
skeptical about the value of judicial review is that it will destroy 
VA flexibility by establishing precedents which the VA is not free to 
disregard. This fear is unfounded. Providing for judicial review will 
in no way prohibit the Veterans Administration from awarding benefits 
even if such awards may appear to be inconsistent with judicial precedents, 
nor would judicial review restrict the Veterans Administration's present 
policy permitting unlimited reapplications of rejected claims. 

One writer has predicted a dire impact upon the dockets of 
the federal courts if review of VA decisions is allowed. A Deputy 
Assistant Attorney General, appearing before the Senate Veterans' 
Affairs Committee in the 95th Congress, 1st Session, in 1977, 
prophesied 4,600 appeals if the VA decision-making process were open 
to judicial review — a total increase in cases filed in the federal 
courts of 3.4%. He based his estimate on appeals from Social Security 
decisions. The prediction is unrealistic: 



218 



- 6 - 

1. The number of filings rarely is an accurate measure 
of drain. Many cases routinely are remanded, or withdrawn or 
settled for other reasons. Cases decided on the merits may be 
decided summarily, without trial and with lesser impact upon judicial 
manpower. J. Mashaw et al. , Social Security Hearings and Appeals 
129 (1978). 

2. VA benefits decisions are not forged in the same trial- 
type crucible as Social Security benefits decisions, thus providing 
fewer technical or procedural grounds for judicial appeal. Social 
Security benefits decisions are subject to the trial-type procedures 

of 5 U.S.C. §§556 and 557. Judicial Review would not require trial-type 
hearings in the VA, and none of the proposals before Congress would 
subject VA decisions to §§556 and 557. 

3. Of the 23,000 claims rejected by the Board of Veterans 
Appeals, 20,000 are rejections of routine appeals made without a 
hearing. If the claimant did not think his case important enough to 
seek a hearing before the VA Board, it would not be likely he would 
retain counsel and go to court. 

4. The typical VA-rejected claim does not compare in 
severity to the typical Social Security-rejected claim. In Social 
Security, the claimant's disability either prevents him from engaging 
in a gainful occupation or it does not — he receives disability 
benefits or he does not. The vast majority of VA-rejected claims 
involve upgrading of previously awarded percentage disability ratings. 



219 



- 7 - 

The veteran either gets a little more money or he continues to receive 
the amount he has been receiving. The incentive to litigate in the 
courts is inevitably less. 

Finally, it is important to remember what the various 
proposals before Congress would do, and what they would not do. In 
the first place they would only permit a veteran to petition a court 
for review - they would not require a court to readjudicate every 
claim denied by the Veterans Administration. In this respect it is 
important to remember that most petitions for review would be denied. 
Courts, and particularly federal courts, are not hungry for 
jurisdiction these days. Moreover, the extremely limited grounds upon 
which Veterans Administration decisions may be judicially questioned 
under the various proposals before Congress make it clear that it 
would be only the most obvious, and exceptional departure from 
Congressional guidelines which courts would be moved to review. 

In the second place, permitting limited judicial review of 
Veterans Administration decisions would not, as some have claimed, 
permit a judicial usurpation of Congressional policy. V/hat limited 
judicial review would do, however, would be to curtail bureaucratic 
usurpation of that Congressional policy. If the persons subject to 
the power of government officials have no right to challenge any 
interpretations of the law which those officials may make, those 
officials have a tendency to make up their own law. (See Appendix C). 
What the officials create may be logically defended as beneficial and 
proper, but it may still not be what Congress has said the law is . 



220 



- 8 - 

At the present time the Veterans Administration makes many 
reports and accounts to Congress and the appropriate Congressional 
Committees, but there is a growing number of veterans who believe that 
the Veterans Administration is making low visibility decisions which 
are totally opposed to what the law requires. Whether these veterans 
are correct or not, shouldn't they at least be given a chance to ask 
the courts to take a look? Courts would not be required to take that 
so-called "look," but under our system of government, that is how we 
protect ourselves from abusive decisions by government officials - 
not by requiring courts to review every grievance, but by permitting 
them to do so if they think that a preliminary showing of illegality 
is of sufficient strength. 

The present system is just plain wrong - and veterans who 
have encountered it, whatever the merits of their claims may be, 
know that it is wrong. I know that it is wrong, and I think anyone 
who has thought long enough about our great Constitutional system of 
government, and its unique reliance on a system of checks and balances, 
knows that it is wrong. 

The American Bar Association also has been on record since 
1977 as opposing statutory provisions which place arbitrary limitations 
on fees for legal services to be rendered before courts and 
administrative agencies. 

Specifically on point, in August, 1977, the Association's 
House of Delegates adopted a resolution urging enactment of legislation 
which would repeal the limit of $10.00 on the fee which an attorney 



221 



- 9 - 
may charge for representing a client before the Veterans Administration 
and provide reasonable fees for attorneys representing clients before 
the VA. (See Appendix D of this statement for a copy of the resolution.) 

The VA administers a large and complicated system of benefits 
for veterans (See Appendix G of this statement.) The system operates 
primarily through the mode of individual application and informal 
administrative adjudication of disputed claims iwithout judicial review. 

The ABA believes that a person should be permitted to retain 
an attorney to present his or her VA case iff he or she so desires. It 
is beyond dispute that the current $10.00 limitation effectively 
prohibits a veteran from retaining an attorney. The ABA believes that 
the availability of attorneys can play an important role in highlighting 
areas of vagueness and excessive discretion and in promoting effective 
presentation of complex claims, e.g., the "service-connection" cases. 

A liberalization of the fee restriction is clearly crucial 
to any meaningful judicial review. If an attorney cannot afford to 
take a meritorious VA case because of the $10.00 fee limitation, 
providing for judicial review would be an empty gesture. Lay service 
organization representatives are prohibited from practicing in 
district court, and veterans would be reluctant to attempt to 
represent themselves. 

The notion that there is a horde of hungry lawyers avidly 
awaiting the repeal of the statutory limitations on fees for 
representing claimants against the Veterans Administration, so that 
such lawyers can cash in on a lucrative law business, is simply not in 
accordance with the facts. 



222 



- 10 



The American Bar Association opposes any rule which would 
require veterans to retain attorneys. We only seek freedom of choice. 
Specifically, claimants would be able to represent themselves, have a 
member of a service organization represent them at the administrative 
level, or hire an attorney. 

Some opponents of that policy argue that attorneys would 
take advantage of veterans. To the contrary, in the complex cases, 
particularly the "service- connect ion" cases, an attorney who is 
trained and skilled in gathering and presenting inconclusive and 
complex evidence to an administrative agency, and building a record 
for possible appeal, may be the veteran's greatest asset. Moreover, 
every state has adopted a stringent code of professional conduct, 
similar to the ABA's Code of Professional Responsibility, which 
regulates the attorney in virtually every area of practice. 

In conclusion met me say that the American Bar Association 
fully supports the repeal of prohibitions against judicial review 
of decisions of the Veterans' Administration, and vigorously supports 
every American's right to counsel. For this reason the ABA favors 
the removal of limitations on attorneys' fees. 

On behalf of the American Bar Association I want to thank you 
for the opportunity to present the Association's views on a subject 
of vital concern to veterans, and of Constitutional significance for 
all Americans. 



223 



Appendix A 



HESOUmON OP THE HOUSE OF DELEGATES OF 
THE AMERICAN BAR ASSOCIATION. ADOPTED 1958 ANNUAL MEETING 



Be It Resolved, That the American Bar Association 
supports the enactment of H.R. 272. esth Congress. First 
Session, a bill to permit judicial review of decisions 
of the Administrator of Veterans' Affairs, with • recom- 
mended amendment which would subsitute review in the 
appropriate United States District Court for review in 
the appropriate Circuit Court of Appeals and that it 
authorize the Section of Administrative Law to appear 
before the committees of Congress and to take such 
other steps as it deems appropriate to carry out this 
resolution. 



Appendix B 



T»£ «.«1CA1. »« ASSOCIATION. ADOPTED AUGUST. 

■ B. It i..«iv.a. Th.t «••« i""tJ•;.!t'of"j°5tcUJ°"'"•>•• 
Xssocxatxon or nis «^«»*-3 ___. _« t»w 
trge Enactment of this proposal of law. 



224 



Appe7igxx"~c" 



EXERPT FROM THE 
AMERICAN BAR ASSOCZATXON 

REPORT TO TH5 HOUSE OF DELEGATES 
ON THE VETERANS ADMINISTFxATION 

FEBRUARY, 1976 



A pervasive problem in the Veterans Adininistation 
which attorneys could effectively monitor is the manner 
in which it determines who will and will not receive 
benefits. The problem is most critical in the exercise 
of the VA's discretion as to whether those with less 
than honorable discharges will receive veterans benefits. 
Prom 1964 to 1972, more than 175*000 servicemen were 
dismissed from the service with less than honorable dis- 
charges. Of the various discharges, bad conduct and 
dishonorable discharges were rare, accounting for no more 
than 11 of the total discharges. ("Types of Discharges 
Issued to Enlisted Personnel by Fiscal Year 1950-1972," 
Office of Assistant Secretary of Defense [Manpower and 
Reserve Affairs], Aug. 31, 1972.) Such discharges are 
imposed only by general. or special courts-martial. The 
middle echelon of discharges is the undesirable discharge. 
Like the honorable and general discharges, it is adminis- 
trative, but like bad conduct and dishonorable discharges, 
it may carry heavy penalties in civilian life. Undesir- 
able discharges are given most often for drug use, homo- 
sexual acts, conviction by Civilian authorities, and 
offenses involving "moral turpitude." 

Contrary to widespread belief, federal law does not 
bar the Veterans Administration from dispensing benefits 
to veterans with less than honorable discharges. The VA 
is in a position, for example, to extend educational 
assistance to veterans who, because of a lack of education 
or training, are perpetually unemployed. But because of 
the way the VA has applied the law, and the way it inter- 
prets its social functions, the agency has not made such 
assistance available. 

Benefits are available by federal law to all veterans 
who receive discharges "under conditions other than dis- 
honorable." Anyone who receives an honorable or general 
discharge is unambiguously entitled to benefits. Anyone 
who receives a dishonorable discharge is unambiguously 
excluded from benefits, as is someone issued a bad conduct 
discharge by a general court-martial. Undesirable dis- 
charges and bad conduct discharges issued by special courts- 
martial constitute the "gray area." If a veteran has one 
of these — and more than six out of every seven Vietnam 



225 



(Appendix C - cont.') 



veterans with less than honorable discharges do (36 OSC 
101 (2) — the VA makes an independent determination of 
«fhether or not it was issued under dishonorable conditions . 
The agency has adopted its own rules on thii^ question. A 
discharge issued for nutiny, spying, or homosexual acts 
is automatically considered to be under dishonorable con- 
ditions. In addition to the specific categories of dis- 
charges that the VA has determined to be under dishonor- 
able conditions, the agency has adopted two rather broad 
and subjective criteria in its eligibility decisions. A 
discharge is considered to have been issued under dishonor- 
able conditions if it stemmed from an offense involving 
'moral turpitude" or was the result of "persistent and 
willful misconduct." (Starr, The Discarded Army , at pp. 
176-177). The determination is made on a case-by-case 
basis without the assistance of any published and defini- 
tive guidelines. The only guideline would appear to be 
an unwritten presumption that the service imposes less 
than honorable discharges only for acts of noral turpitude 
or persistent and willful misconduct, because the VA 
indicates that 93% of the veterans with less than honor- 
able discharges who applied for educational benefits were 
denied them. (Letter from Mr. Stratton Appleman, Assistant 
Director Public Information Office, Veterans Administration # 
to Raymond Bonner, dated January 18, 1973.) 

Ordinarily, the VA keeps no statistical records on 
benefit applications from vetarans with undesirable and 
bad conduct discharges^ A study of a five month period 
in 1972, however, noted that only 1,305 applications for 
educational benefits were received from men with less thar 
honorable discharges. Of these, 91 were approved. Durine 
this same period, more than 4,000 veterans with less than 
honorable discharges applied for unemployment compensatior 
(althouch the benefits are dispensed by the Labor Depart- 
ment, eligibility decisions are made by the VA) . Of the 
4,000 men who applied, 3,400 were found ineligible. Ninety- 
seven of the cases involved veterans with drug-related 
discharges; six of these were approved. (Starr, The Dis- 
carded Amy , at p. 179). 

The per se rules which the VA has adopted with respect 
to servicemen with less than honorable discharges appear 
to be a violation of congressional intent. Some argue 
that service organizations can adequately protect and re- 
present those allegedly unfairly denied benefits because 
of less than honorable discharges. It would appear from 
the statistics herein mentioned, however, that the Americi n 
Legion, the VFW and other service organizations have not I een 
particularly effective in prosecuting such claims. This 
is an area ripe for the watchful eye of the attorney in 
assuring that congressional intent is implemented and 
those entitled to benefits are treated equally. 



226 



- 3 



(Appendix C - cont.') 



The VA's disability program !• .another area in which 
the attorney could be quite useful, since the considerable 
discretion involved in processing disability claims nskes 
the program susceptible to unequal treatment among veterans. 
For example, a regulation provides that a veteran can be 
classified as totally disabled if he is "unemployable* and 
lie achieves a certain percentage rating under a rating 
schedule (38 C.F.C. 4. 16017). The concept of "unemploy- 
*bility," however, as described in the regulations, is 
rather imprecise, sometimes resulting in a lack of uniform- 
ity in practical application. (The regulations define 
unemployability as "unable to secure or follow a substantial 
gainful occupation." 3B C.F.R. 4. 16.) 

Similarly, in order for the veteran to participate 
in the disability compensation program, he must have at 
least a 60% disability on the rating schedule, or two 
disabilities totalling 70% with one equal to 40% (38 C.P.K. 
4. 16). A determination of disability under the rating 
schedule requires many subjective determinations including 
the degree of social in^airment due to psycho-neurotic 
disorders. Even in the disability cases where medical 
disputes predominate, subjective determinations must be 
atade in arriving at the percentage of disability pursuant 
to the rating schedule, and without the assistance of a 
trained attorney a veteran nay not be able to effectively 
guard against unequal treatment. 



227 

Appendix D 

Resolution of the 

House of Delegates of the 

American Bar Association, adopted August. 1977 



Hesolved, that the American Bar Association recommends 
that the Congress adopt legislation: 

1. Itepealing 38 U.S.C. 3404(c)(2). which limits 
the fee which an attorney may charge for represent- 
ing a client before the Veterans Administration to 
$10.00; 

2. Providing reasonable fees for attorneys who 
represent clients before the Veterans Administration, 
based on the following considerations: 

(a) The time and labor required, the novelty 
and difficulty of the questions involved, and 
the s)iill requisite to perform the legal service 
properly. 

(b) The li)celihood. if apparent to the client, 
that the acceptance of the particular amploy- 
ment. would preclude other employment by the lawyer, 

(c) The fee customarily charged in the locality 
for similar legal services. 

(d) The amount involved and the results obtained. 

(e) The time limitations imposed by the client 
or by the circumstances. 

(f) The nature and length of the professional 
relationship with the client. 

(g) The experience, reputation, and ability of 
the lawyer or lawyers performing the services. 

3. Providing that the client and the attorney shall 
determine the attorneys' fee. subject to approval by 
the Administratior of the Veterans Administration 

and to review by the Federal district in which the 
claim is processed or in the Federal district court 
in Washington, D.C. 

4. Nothing in this resolution shall be deemed to 
ammend or modify Resolution 1106 (G), adopted by the 
House of Delegates in August. 1976. 



228 



^WnhmV^teransg^mq^ 



329 eGHIH STREET NE, WASHINGTON, DC 2CX)02 * 202/546-3700 



D 



STATEMENT OF JOHN F. .TERZANO 
LEGISLATIVE DIRECT'OR 
OF THE 
VIETNAM VETERANS OF AMERICA 
ACCOMPANIED BY 
DAVID F. ADDLESTONE 

AND 
BARTON F. STICHMAN 



BEFORE THE 
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 
COMMITTEE ON VETERANS AFFAIRS 



UNITED STATES HOUSE OF REPRESENTATIVES 



JULY 26, 1983 



229 



Dear Mr. Chairman, 

I am John F. Terzano, Legislative Director of the 
Vietnam Veterans of America. Accompanying me today are 
David F. Addlestone and Barton F. Stichman, representing 
WA's Claims Department. We are pleased to be here today to 
present WA's views on Judicial Review. 

I. THE NEED FOR JUDICIAL REVIEW IS UNRELATED TO 

ANY DEMONSTRATION ABOUT HOW FAIRLY THE VETERANS 
ADMINISTRATION CURRENTLY ADJUDICATES CLAIMS 

In an ideal world we would not have to resort to 
lawyers and the courts. People often file claims because they 
are in pain, and creating an adversarial situation is not the 
best way to relieve pain. However, the world is not ideal; 
indeed it is quite complex. Many statutes and regulations 
govern veterans benefits programs. Most of these rules were 
written by lawyers; and as we all know, lawyers often do not 
make matters as clear as they should. 

In the past, some people have begun the discussion 
about judicial review by asking "what is so wrong with the VA 
and the BVA that judicial review is needed?" This is not the 
correct question. The United States has a Supreme Court which 
is a cornerstone of our democratic and constitutionally structured 
society. There are also a multitude of other courts and tri- 
bunals that are below the Supreme Court and the decisions of 
which our Supreme Court may review. However, as we all are 
well aware, the existence o*f a Supreme Court does not imply the 
inadequacy, arbitrariness, or wrongness of the lower courts. 
Nor does the existence of the judicial review imply the wrong- 
ness of the other branches of government. The existence of the 
courts and legal system is merely the way in which disputes 
are resolved in our society. 



230 



- 2 - 

Our point, very simply, is that one need not list 
errors, inadequacies, or other problems at the VA for the 
purpose of supporting an argument for judicial review. The 
American system of . government uses the judicial system to re- 
solve disputes. Premising the debate about judicial review 
on a review of evidence about how well the VA handles claims 
leads to a very serious confusion of the real issues. Tying 
the debate about judicial review to a discussion of VA flaws 
causes a labeling of people who favor judicial review as 
critics or even opponents of the VA. In reaction to this first 
mistake, people who want to support the agency, in response 
to the perceived attack, automatically become opponents of 
judicial review. Thus, people who want to be "friends" of 
the VA believe they are obligated to oppose judicial review. 
Unfortunately and unintentionally, these people become the 
worst enemies of the agency they are trying to protect. This 
happens because their efforts to prevent judicial scrutiny 
leads to the belief in the minds of veterans and the general 
public that there must be something the VA is trying to hide. 
This chain of reasoning is wrong at every step because it 
starts with a false premise and continues to build on it. 

Unfortunately, the prohibition against judicial re- 
view has led to a special status for the VA in the minds of 
veterans and the public. One product of the prohibition 
against judicial review is mistrust, suspicion and lack of 
confidence by many. The VA is seen as an agency beseiged by 
criticism by the media. Review by the courts would provide 
an explanation of decision-making and a ventilation of the 
frustrations of veterans. There can be no doubt that the pro- 
bition against judicial review has had a negative impact on 
the image of the VA. ' Because the agency will necessarily deny 
the claim of some veterans, it is necessary to provide the 
opportunity for release of frustration that judicial review 
provides. 



231 



- 3 - 

Equating "friend" of the agency to opponent of 
judicial review and proponent of judicial review to "enemy" 
of the agency is ill-advised, confused, and in the simplest 
of terms -- wrong. The legal system is based on the idea that 
there are different viewpoints and ideas. Attorneys know that 
as long as there are two lawyers there will be two different 
points of view. Judges and courts reverse themselves. The 
law is a fluid process of everchanging ideas, not an inflexible 
system where right and wrong remain the same. The endless 
change in the law reflects the changes in life itself and 
the variety of opinions that each human being has. Those of 
us who believe in a democratic and free society would want 
it no other way. 

An important benefit of judicial review is that it 
will result in wider participation by skilled advocates raising 
different points of view. Judicial review represents partici- 
pation, diversity and openness. The notion that review is 
based on differing opinions rather than negative criticism 
is clearly recognized by the VA system itself. The VA has 
liberal administrative appeal rights and opportunities for 
multiple reconsideration of denied claims. It also has a 
variety of review processes that can take place by Central 
Office staff before the case goes to the BVA. The VA admin- 
istrative process is based on the awareness that disagreements 
and changes of position are possible without anything being 
wrong with the system or the people in it. Judicial review 
is consistent with the VA 'system and its operations and one 
need not criticize, oppose, or change the VA in order for 
another protection for veterans to occur. 



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II. JUDICIAL REVIEW OF THE VETERANS ADMINISTRATION 

DETERMINATIONS IS NECESSARY TO ALLOW THE AVERAGE 
VETERAN THE SAME ACCESS TO THE COURTS AS OFFICER 
AND SENIOR ENLISTED PERSONNEL 

The growing ■ number of citizens who advocate judicial 
review of VA determinations often base their support on the 
argument that veterans should have equal access to the courts 
with non- veterans. The reasons that Congress has authorized 
court review of the actions of almost every federal agency 
that exists, advocates of judicial review of VA determinations 
argue, apply with equal force to the VA. Recognition of this 
fact has moved many veterans organizations who have previously 
opposed judicial review to change their position and support 
it now. 

The Vietnam Veterans of America .has historically 
supported judicial review of VA decisions for this often — 
cited reason. However, WA believes that an even more impor- 
tant, and often overlooked reason why Congress should authorize 
court review, is that the current system unfairly discriminates 
against the average veteran, by allowing court review to upper- 
income veterans, usually former officers. Little mention 
has been made before the relevant "Congressional committees 
that in fact many veterans can obtain review of claims for 
disability benefits related to military service. Entirely 
separate from the Veterans' Administration program for service- 
connected disability benefits, the military departments have 
a Congressionally authorized physical disability benefit pro- 
gram. Like the VA program, the military departments have 
established agencies to review a veteran's claim for service- 
connected disability benefits. Unlike the VA benefit system, 
however. Congress has authorized court review of military 
disability benefit program determinations. 



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Whereas the VA disability system treats all 
veterans equally, the military disability system is tied to 
rank and base pay. Hence, the military system generally pro- 
vides vastly greater sums to officers or senior enlisted members 
for the same disability that a one-term enlisted member will 
normally present to the VA. 

A second area in which some veterans can obtain 
court review is on the issue of character of discharge. The 
character of one's discharge is directly related to one's 
eligibility for veterans' benefits. Those veterans who apply 
to the VA to establish eligibility based on the character of 
their discharge pursuant to 38 C.F.R. § 3.12 cannot obtain 
court review. However, veterans who apply to military, 
agencies for an upgrade in discharge can go to court for re- 
view of these decisions. 

We describe these two different systems in more de- 
tail below. The point, however, is that veterans who are able 
to secure attorneys because they have a large claim, or because 
they are well-to-do, are in fact able to get court review of 
their claims for veterans benefits. What these veterans do 
is apply to the military departments for physicial disability 
benefits or an upgrade in discharge. They may hire an attorney 
to assist at this stage if they so desire and are not hampered 
by any statutory fee limitations. If they are denied their 
claim by the military department, they then file a lawsuit 
in federal court and obtain court review under the traditional 
Administrative Procedure Act standard of review. 

Thus, a small segment of the veteran population is not 
denied effective access to the courts. But the large majority 
of veterans, who cannot afford attorneys who are savvy, and know 
about court review of military physical disability program and 
discharge upgrade claims, are completely denied access to court 
review. They apply to the VA for benefits and they can go no 
further. They cannot obtain lawyers to represent them at the 
VA because of the SIO fee limitation, and, if they lose, they 
cannot seek court review. WA believes that this disparity 
of treatment of veterans, favoring higher ranking personnel, 
is unjust and should be corrected. 



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A. The Military's Physicial Disability 
Retirement And Separation Program 

Congress has long authorized a system for the mili- 
tary departments to compensate personnel who become disabled 
during their military- service. See 10 U.S.C. §§ 1201, et seg . 
Basically, if a servicemember incurs a disability as the proxi- 
mate result of performing active duty or the disability was 
incurred in line of duty in time of war or national emergency, 

and that disability is rated at 30% or more, the servicemember 

V 
is entitled to military disability retirement pay. When a 

servicemember 's disability is apparent during his or her mili- 
tary service, the military departments will refer the member's 
case to physical evaluation boards to determine whether the per- 
son should be retired for physicial disability reasons. How- 
ever, if the member is discharged without the disability having 
been reviewed by an in-service board, the veteran may still 
apply for these disability benefits by submitting an applica- 
tion to a Board for Correction of Military Records (BCMR) 
established pursuant to 10 U.S.C. § 1552. See Dzialo v. United 
States, No. 492-80C (Ct. CI. May 11, 1982) ("Where a claimant 
. . . does not know that he is ill. or does not appreciate the 
serious character of his disability until after he has been 
separated from the military, application to [a Board for 
Correction of Military Records] becomes the [appropriate] 
. . . administrative remedy."); Freedman v. United States , 
310 F.2d 381, 392, 402 (1962), cert , denied , sub nom . Lipp 
V. United States , 373 U.S. 932 (1963). 

In order to determine whether a veteran-claimant 
meets one of the primary criteria for benefits — whether the 
disability is 30% or more disabling — the BCMR uses the stan- 
dard schedule for rating disabilities used by the Veterans 
Administration for service-connected disability claims. And, 



IT The rules are more complex than this, but this is a 
general statement of the eligibility requirements. 



235 



just like the VA, the military departments are required to 
resolve any reasonable doubt in favor of the claimant. See 
Reith V. United States , 462 F . 2d 530, 536 (1972); Cooper v . 
United States , 178 Ct. CI. 277, 316 (1967). 

Once a final military agency determination on a 
claim for physical disability retirement pay is rendered, the 
veteran can seek judicial review in either the United States 
Claims Court or a United States District Court. The veteran 
can challenge in court either a denial of disability benefits 
or a decision to rate a disability that is lower than the 
veteran believes is appropriate. The standard of review used 
by the federal courts in such cases is the familiar Admin- 
istrative Procedure Act standard whether the agency action 
is arbitrary or capricious, an abuse of discretion, or is 
unsupported by substantial evidence. See Istivan v. United 
689 F.2d 1034, 1037 (1982); Murson v. United States , 401 F.2d 
184, 187, 192 (1968); Hutter v. United States , 345 F . 2d 828 
(1965) . When courts review agency decisions on military 
disability benefit claims, there is often in the record a 
Veterans Administration decision on the degree of disability 
the veteran is suffering. The courts are not required to 
accept this VA determination, although they normally defer 
to the Veterans Administration conclusion unless there is 

substantial evidence to the contrary. See , e.g. , Hutter v . 

2/ 
United States , supra at 831. 

B. The Injustices Perpetuated By Having A 
Military Disability Benefit Program With 
Court Review At The Same Time As A 
Veterans Administration Disability Program 
Without Court Review 

The injustice of having two disability benefit pro- 
grams which parallel each other, with only one of them susceptible 
to court review, is apparent. Those veterans who are fortunate 



2/ Another way veterans who hire clever attorneys can 
sidestep the bar to court review of VA determinations is 
through a Privacy Act lawsuit filed pursuant to 5 U.S.C. § 552a. 
The Privacy Act authorizes courts to correct any agency record, 
including a VA record, which is "inaccurate." See R.R. v. 
Department of the Army , 482 F. Supp. 770 (D.D.C. 1980); White 
V. Civil Service Comrnission , 589 F.2d 713 {D.C. Cir. 1978T; 
cert , denied , 444 U.S. 830 (1979); Turner v. Department of the 
Army , 447 F. Supp. 1207, 1213 (D.D.C. 1978); aff'd mem ., 593 F.2d 

1392 (D.C. Cir. 1979). Thus, a veteran who can convince a 

[footnote 2 continued on page 8] 



236 



- 8 - 

enough to know of the dual systems and who can afford to hire 
attorneys familiar with the dual systems can get court review 
of their cases. Other veterans -- the large majority — cannot 
get court review. .They apply to the better known Veterans 
Administration compensation program. Many of them believe their 
claims are unjustly denied and that a court would overturn the 
VA's determination. But they cannot go to court. 

Take the case of Norman Elmore Cooper, Jr., a former 
member of the Navy. Two years after, he was discharged from the 
Navy, Mr. Cooper applied to the Veterans Administration for 
service-connected disability benefits. The VA granted his 
claim in part, rating him 20% disabled for an ulcer condition, 
but denying any disability rating for his alleged mental 
impairments. See Cooper v. United States , 178 Ct. CI. 277, 
304 (1967) . Mr. Cooper, however, believed he was entitled 
to a much higher disability rating. He knew that no court 
review of VA determinations is permitted, but that court re- 
view of military physical disability determinations are per- 
mitted. Therefore, he hired an attorney who applied to the 
BCMR for physical disability retirement pay. That Board, 
like the VA, denied Mr. Cooper's claim for a disability 
rating higher than 20%. 

Because a military agency, and not the VA, had 
made this determination, Mr. Cooper could now go to court. 
He sued the Navy, arguing that he was entitled to a higher 
'disability rating. In a long and well-reasoned opinion, the 
federal court agreed. The BCNR's decision was, in the court's 
opinion, arbitrary and capricious and unsupported by substantial 
evidence. Therefore, the court ordered the veteran's disability 
rating to be increased to 4 0%. Id^. at 317. 

[footnote 2 continued from page 7] 

federal court that a VA diagnosis is "inaccurate" can get this 
diagnosis corrected. When the veteran thereafter re-applies to 
the VA for benefits, the VA will be bound by the court-ordered 
diagnosis. Id. 

There are few attorneys who know about the availability 
of the Privacy Act to help win a VA claim, however. Also, re- 
latively few veterans can afford lawyers to bring such collateral 
lawsuits. 



r- A 



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- 9 - 

It is plain that most veterans do not know about 
this loophole to allow court review. The point, of course, 
is not that court review should be eliminated for Tiiilitary 
agency determination on disability claims. As the court 
decision cited above demonstrates quite plainly, these agencies 
sometimes make mistakes — quite egregious mistakes — which 
have a great impact on a veteran's life. Courts are available 
to overturn these infrequent, but important errors of admin- 
istrative justice. But this remedy for occasional agency 
mistakes is not available to the majority of veterans who do 
not have large enough claims or enough money to hire attorneys 
familiar with the military disability benefit program and 
court review thereof. 

C. The Dual System Of Character Of Discharge 
We have discussed above the inequities resulting 
from a dual system of service-connected disability benefits — 
one allowing court review and one precluding court review. 
The VA, of course, provides other types of benefit programs. 
A dual system exists for those benefit programs as well — 
one allowing for court-review and one prohibiting court review. 
This relates to the character of discharge. 

Congress has long provided that for a veteran to 
be eligible for any of the panoply of veterans benefits admin- 
istered by the Veterans Administrations, including but not 
limited to their service-connected disability benefits, a 
veteran must have been discharged "under conditions other than 
dishonorable." 38 U.S.C. § 101(2). When a veteran applies 
to the VA for benefits, and s/he has a less than General Dis- 
charge and was not discharged for a reason that constitutes a 
statutory bar, the VA makes what is known as a "character of 
discharge" determination. In such a case, the VA determines 
whether the circumstances surrounding the veteran's military 

service are such that he should be considered to have been 

3/ 
discharged "under conditions other than dishonorable." 

37 ^ The rules are more complex than this but this is an 
accurate general description of the process. See 38 C.F.R 
§ 3.12. 



1 



238 



-ID- 
AS all other VA determinations, courts cannot review 
a VA's decision that a particular veteran's discharge was 
"under other than dishonorable conditions." However, a veteran 
can "overturn" theVA determination through the military depart- 
ments, just as he can in the service-connected disability field. 
Specifically, the veteran can apply to a Discharge Review Board 
(DRB) and/or Board for Correction of Military Records for an 
upgrade in discharge. And because court review of DRB and 
BCMR decisions have been available for decades, if these boards 
deny hira an upgrade in discharge, the veteran can seek court 
review. And, if the veteran wins in court, the discharge will 
be upgraded to General or Honorable. Then the veteran can 
return to the Veterans Administration with an upgraded dis- 
charge, and the Veterans Administration is bound to reverse 
its previous determination that the veteran was discharged 
"under conditions other than dishonorable." Accordingly, a 

veteran using this route can become eligible for veterans 

1/ 
benefits. 

The case of former Chief Warrant Officer Raymond E. 
Robinson illustrates this convoluted route to justice. 
Robinson resigned from the Army after lengthy service but a 
short AWOL brought on by family and emotional problems. 
He was issued a discharge under other than honorable conditions. 
Mr. Robinson's resignation letter stated that "I further 
understand that if my resignation is accepted under other than 
honorable conditions ... I may be barred from all rights . . . 
under any law administered by the Veterans Administration. ..." 
Robinson v. Resor , 469 F . 2d 944, 947 n. 4 (D.C. Cir. 1972). 

Knowing that there was no court review of VA deter- 
minations, Robinson made repeated efforts before the Army DRB 
for an upgrade in discharge. Id. at 945. When these efforts 
failed, Robinson hired an attorney and sought court review. 
The Court of Appeals for District of Columbia Circuit unanimously 
held that the DRB's decision denying him an upgrade in discharge 
was arbitrary and capricious. The court stated that the Army's 
actions against Robinson "viewed in its entirety, constitutes 
an overreaching leap into the arbitrary and inequitable." 

TT An upgrade by a DRB in some cases does not confer 
eligibility for VA benefits. 



239 



- 11 - 

The Court went on to state that the "Army could not isolate 
itself from the accepted standard of justice in the civilian 
world when it was a conscript force; still less can it — 
or should it wish to -- live by a different stanc ird when it 
plans to become an all volunteer Army. Until it is fairly 
set right, the case of Chief Warrant Officer Robinson will 
be no boon to recruiting Sergeants." 

The result of Robinson's court action was a dis- 
charge under honorable conditions. This type of discharge 
binds the Veterans Administration to treat him as a veteran 
eligible for veterans benefits. If, however, he had tried 
to seek review of a Veterans Administration determination 
on his character of discharge, the court would have summarily 
dismissed his lawsuit because of the preclusion of judicial 
review of VA determinations. 

This dual system of determining the appropriate 
character of discharge plainly leads to the same inequities 
as the dual disability programs. Veterans who can afford the 
services of a lawyer can obtain court review through the 
convoluted and long process of seeking an upgrade in discharge 
from a DRB and BCMR, and, if they fail at those Boards, seeking 
court review. It took Mr. Robinson some seventeen years from 
the date of his discharge for a court to force an upgrade in 
his discharge. But, finally, he was able to obtain an upgrade 
in discharge and eligibility for veterans benefits. A speedy, 
more efficient system of justice available to all veterans 
would exist if Congress we're to allow direct review of VA 
determinations by the courts. 

III. JUSTIFICATION FOR CURRENT SYSTEM 

What justification is there for treating veterans 
benefit claimants diferently than prisoners, public assistance 
recipients. Social Security pensioners, DRB or BCMR applicants 
and practically everyone else who has a dispute with the govern- 
ment? The traditional justifications and the position of the 
current VA Administrator include the following: 



240 



12 



o No one has proven that anything is wrong 
with the VA system. In other words, "If 
it ain't broke, don't fix it." 

o Judicial review would interfere with the 
day-to-day working of the VA. 

o It would be costly. 

o It would disrupt a smooth, informal and 
non-adversarial system. 

o Claimants would need lawyers. 

o The Board of Veterans Appeals (BVA) 

should be the final arbiter of technical 
questions of veteran's law. 

o The courts have no expertise in these 
matters . 

o The courts would render non-uniform 
decisions . 

o The VA system is so replete with safe- 
guards, and free counsel is available 
to work closely with this system, that 
a sort of "generalized due process" 
makes up for any deficiencies. 

o Judicial review of Social Security 
disability claims has flooded the 
courts and caused the reversal of 
25% of the administrative decisions. 

These arguments are presently without factual support 

and when examined in the final analysis they are based on myths. 

A. The Myth That The VA Will Deny More 
Claims And Not Give The Veteran The 
Benefit Of The Doubt If There Is 
Court Review 

A major argument against judicial review by those 
who continue to argue for the perpetuation of a system which 
gives veterans fewer rights than other citizens is the sugges- 
tion that judicial review will cause some great harm. But this 
harm is never made specific. We have heard that it would 
cause the loss of informality at the VA that allegedly benefits 
the veteran. Many administrative bodies allow for hearings and 
all of these bodies have their decisions reviewed by courts. 
The proceedings are in no way more formal or adversarial than 
those of the BVA. None of them is more adversarial or formal 
just because the courts are permitted to review each of them. 



241 



- 13 - 

No specifics of how judicial review impacts negatively on 
this process have been offered. No one offers a specific 
instance where more formality would hurt veterans. Reference 
to Social Security Disability cases is misplaced because that 
is an adversarial system with many technical procedures. 
Another way this argument is phrased is that if 
judicial review is permitted the VA would no longer give the 
veteran the benefit of the doubt and would actually deny more 
claims than they do now without a system of judicial review. 
The military disability benefit program demonstrates that 
this argument is a myth. In the military disability benefit 
program, the military agencies, just as the VA, are required 
to resolve all issues on which there is reasonable doubt in 
the veteran's favor. See Cooper v. United States , supra at 
313-316; Reith v. United States , supra at 536. At the same 
time, courts review military disability determinations. Thus, 
the fact of judicial review can certainly live coextensively 
with a requirement that agencies resolve all reasonable doubts 
in favor of a veteran. 

B. The Myth That Courts Do Not Have The 
Expertise To Review Disability Claims 

Another argximent advanced by opponents of judicial 
review is that federal courts do not have the expertise to 
review an agency's determination on such specialized areas 
as whether a veteran has a service-connected disability. 
This argument is also a myth. Federal courts have for decades 
reviewed the most complex of agency actions. The question 
of whether a veteran has a service-connected disability is a 
rather simple type of issue. 

Again, reference to the military disability program 
helps debunk this myth. As discussed above, military disability 
claims are controlled by the rating schedule that the Veteran's 
Administration uses for disability claims made to the VA. In 
reviewing military agency determinations on claims for disability, 
the federal courts are called upon to interpret this VA schedule. 
The federal courts, which refer to the VA schedule as "the bible 
for ratings" ( Reith v. United States , supra at 536), have for 



242 



- 14 - 

decades interpreted and applied this so-called complex set of 
guidelines. There is nothing extraordinarily complex about 
these guidelines, and the courts have shown over the decades 
that they have substantial expertise in reviewing agency deter- 
minations on these matters. 

Some of the opponents of judicial review make a 
large issue of leaving the BVA as the sole expert and final 
arbiter of technical questions of veterans' law. This overlooks 
the fact that the BVA currently is not the final arbiter of 
such matters. 

Section 4004(c) of Title 38 U.S. Code provides: 

The Board [BVA] shall be found in 
its decisions by the regulations of the 
Veteran's Administration, instructions 
of the Administrator, and the precedent 
opinions of the chief law officer [Office 
of General Counsel] . 

Thus, it is quite clear that unpopular BVA decisions can be 

nullified through a variety of VA procedures. 

C. Allowing Court Review Of VA Determinations 
Will Result In A Flood Of New Lawsuits 

Another argument against judicial review of VA deter- 
minations is that it will result in a flood of federal court 
lawsuits, thereby adding to the already overburdened federal 
court docket. Reference to the military disability benefit 
program makes plain that there is little substance to this 
argument. In the many decades since Congress established the 
military disability program, relatively few veterans have sought 
court review. The reasons are apparent; attorneys will not 
represent these claimants unless they have a good enough claim 
on the merits to permit the attorney to take it on a contingency 
basis. 

If court review of VA determinations is permitted, 
the number of federal court cases is likely to be relatively 
small if the track record on court review of military disability 
program decisions is any indication. 



243 



- 15 - 

The early rush to the courthouse that will occur 
after passage will abate after the Courts begin to define the 
limits of relief available. Examples can be seen in the review 
of decisions of the DRBs and BCMRs. These agencies handle 
tens of thousands of cases a year; and fewer than 100 cases 
are pursued in federal court. Because 20,000 of the 23,000 
EVA annual "appellants" do not request a hearing, resort to the 
courts by many is unlikely. 

In fact, the introduction of judicial review and 
lawyers into the VA adjudication process will actually have 
positive effect on the VA caseload. The VA is so generous 
in its granting of rehearings that many disgruntled veterans 
reapply every year at great expense to the VA. In our experience, 
once a would-be-litigant is rejected by enough lawyers who 
bluntly say "you have no case," they cease their unproductive 
efforts. The same is even more true for the litigant who 
loses in Court. Thus, judicial review would provide two avenues 
to stop frivolous re-adjudication of many claims. 

The elimination of the current criminal penalty 
for charging more than ten dollars for representation of a 
veteran before the VA will also tend to weed out frivolous 
litigation. The entry of attorneys at early stages of a VA 
case would likely provide many veterans with the answer thaty 
"you have no case" before a federal court complaint is filed 
precipitiously just to make the filing deadline. 

In sum, VA believes that judicial review would make 
the BVA more cautious in itfe decision-making to a beneficial 
degree and more importantly give the BVA more authority to con- 
trol the often inconsistent and uncontrolled decision-making 
of the regional offices. This is the unofficial view of many 
past and current members of the BVA. 



244 



- 16 - 

D. The Remaining Myths 
The rest of the arguments against judicial review 
— cost, the need for lawyers, non-uniformity of decisions, 
generalized due process of the system is sufficient — are dealt 
with in the following sections. But we feel constrained to 
say that if judicial review won't hurt the system, such a cost- 
benefit analysis is like saying "we won't give you a fully 
loaded weapon because studies have shown bullets get lost that 
way . " , ■ 

IV. THE SCOPE OF REVIEW OF VA DETERMINATIONS 

In the past few years there has been much debate 
over the appropriate scope for review if Congress were to 
allow judicial review of VA determinations. Much of the debate 
has centered upon whether courts should be authorized to make 
determinations on issues of fact, as well as issues of law. 
All those who believe judicial review is appropriate support 
court review of issues of law. More disagreement exists on 
whether court review should be allowed on issues of fact, and 
if so, what scope of review of issues of fact is appropriate. 

The Bill recently passed by the Senate attempts 
to create a wholly unique articulation of how courts are to 
treat VA determinations on issues of fact. The Vietnam Veterans 
of America opposes the creation of unusual standards of review 
on factual issues. The traditional scope of review of agency 
action provided by the Administrative Procedure Act, 5 U.S.C. 
§ 702, et seq . , is, WA believes the appropriate standard of 
review on all issues. Congress has authorized courts to over- 
turn agency action which courts find to be "arbitrary, capricious, 
and abuse of discretion" or "unsupported by substantial evidence." 
5 U.S.C. § 706. 

That this is the appropriate standard of review is 
made apparent by referring to military physical disability and 
discharge upgrading claims. As mentioned above, these military 
agency determinations are reviewable by federal courts under the 
familiar arbitrary and capricious and unsupported by substantial 
evidence standard of review. Courts have reviewed these deter- 
minations for decades under this standard of review. An analysis 



245 



- 17 - 

of those court decisions which overturn military agency disa- 
bility determinations makes plain that the large majority of 
decisions are based upon issues of fact, rather than issues of 
law. In other words, the military agencies rarely misapply 
the law, because they have been interpreting the basic regu- 
lations on military physical disability claims over and over 
again. Where they occasionally make errors is in evaluating 
the evidence. Sometimes, these agencies' determinations 
denying benefits are so unsupported by the evidence that courts 
feel compelled to overturn their decisions in ordei to provide 
justice. When they overturn such decisions they do so because 
of the arbitrary, capricious and unsupported by substantial 
evidence standard. 

This same just system should apply to reviewing 
VA determinations. As in the military disability system, mis- 
takes will most often be made, when they are made, on issues 
of fact. To allow judicial review of issues of law, but not 
on issues of fact, will not provide veterans with much of 
a court remedy. They will still be best served by avoiding 
the VA disability and discharge evaluation system and by 
applying instead to the military agencies in order to obtain 
court review of determinations on issues of fact. Plainly 
both systems should have the same scope of review in order to 
provide equal justice to all veterans. 

Recently the Supreme Court noted the standard of 

review given to military agency determinations, and affirmed 

it as the appropriate remedy for veterans who have been caused 

injury during their military service. The Court stated 

The Board for Correction of Naval 
Records . . . provides . . . [a] 
means with which an aggrieved 
member of the military "may cor- 
rect any military record . . . when 
[the Board] . . . considers it 
necessary to correct an error or 
remove an injustice" 10 U.S.C. 
S 1552(a). . . . Board decisions 
are subject to judicial review if 
they are arbitrary, capricious or 
not based on substantial evidence. 

Chappell v. Wallace , 51 U.S.L.W. 4733, 4735 (June 13, 1983). 



246 



- 18 - 

WA believes this standard is the appropriate one 
for fact review of VA decisions as well. 

S. 63 6, as reported created a new standard for fact 
review: the decision is "so utterly lacking in a rational basis 
in the evidence that a manifest and grievous injustice would 
result if it were not set aside." The basic reason we propose 
the substantial evidence standard is to avoid the creation of 
new problems for courts and the VA that would result from a 
review using an unfamiliar standard. Courts are familiar with 
the substantial evidence test, and it is used to review actions 
of other agencies not formally subject to the APA adjudication 
requirements. In reviewing VA decisions, this standard could 
be easily applied by the courts. 

While there is a significant body of opinion that 
the substantial evidence test and the arbitrary and capricious 
test are in reality different ways to say the same thing about 
judicial review of informal decision-making, we feel that as 
a practical matter factual review using the substantial evidence 
that is more manageable and would in the long run work to the 
benefit of more veterans. This becomes clear when one looks 
at how the average judge and the average attorney face an 
individual veteran's case. Most small practitioners are not 
terribly sophisticated in the verbal slight of hand in proving 
what is arbitrary and capricious much less the finer aspects of 
making review of fact look like review of law. In our view, 
the average attorney would have an easier time in analyzing 
facts within the framework of what evidence is substantial 
enough to support a factual finding. Hence, veterans would be 
more likely to find low price or free assistance if highly 
honed skills of legal semantics are not required. 



247 



- 19 - 

If review were limited to questions of law, the 
judicial review practice would be limited to those attorneys 
highly specialized in administrative law and the art of making 
questions of fact into questions of law. We feel that it would 
be undesirable to encourage the isolation of such a practice 
of law, because veterans are fairly evenly distributed through- 
out the country and these type attorneys are more likely to be 
found in large firms in big cities. (For this and other reasons 
WA opposes the creation of a specialty Veterans Court to sit 
in Washington, D.C.) The average practitioner doing a favor 
for a brother-in-law or a fellow vet would thus be discouraged 
from trying to weave and dodge to turn fact situation X into 
a "denial of due process." 

While some people may argue that there is no need 
for factual review until it is proven that there is such a 
need, all we can say is that it is an unfortunate state of 
affairs if veterans are the only class of citizens against whom 
the "presumption of bureaucratic correctness" is invoked. 
Every bureaucratic action affecting any corporation can be 
challenged in court; prisoners get court hearings with ease; 
public assistance recipients are entitled to federal court 
review; and bad paper veterans denied relief by a DRB and 
BCMR can seek federal court review on questions of fact. 

V. THE ATTORNEY FEE LIMITATION 

WA urges the Congress to take action to eliminate 
the ten dollar fee limitation that attorneys may charge to 
handle VA claims. The limitation deprives veterans of a basic 
right that all citizens have — the freedom of choice to seek 
professional assistance to help them sort through a complicated 
legal system. They should have the opportunity to go into the 
marketplace and pay for the legal services they need, without 
the statutory barrier that lingers from another historical era 
and set of circumstances. There can be no doubt that the ten 
dollar fee limitation acts to almost completely exclude lawyers. 
It is a perfect example of inappropriate and unnecessary govern- 
ment regulation to deny citizens a free choice in the market place. 



248 



- 20 - 

The retention of the limitation is usually justified by reference 
to some generalized negative effect lawyers would have on the VA. 

Some believe that removal of the fee limitation 
and the introduction of lawyers into the VA system would harm 
the VA's decision-making process. Arguments against such repre- 
sentation suggest that lawyers would unnecessarily complicate 
the process, create an adversary relationship between veterans 
and the VA, and that simply suggesting the notion of lawyer 
representation before the VA is an indictment of the current 
adjudication system. 

Taking the last point first, to suggest that lawyers 
should be able to represent veterans who want lawyers before 
the VA does not mean that the current system is either unfair, 
indifferent or a failure. On the contrary, the right to choose 
a representative does not depend on any shortcomings of an 
adjudicative system. Rather, the right to seek legal assis- 
tance should stand alone as an option for all citizens. The 
ten dollar fee limitation serves as a barrier to lawyers 
created by government regulation. Eliminating the prohibition 
would open the system to more free choice and a free market. 

WA sincerely believes that the introduction of 
lawyers and other legally trained professionals into the VA 
will improve the system. There are several specific benefits 
we feel that lawyers can add to the system. Let it be clear, 
— however, we are not advocating the replacement of service 
organization service representatives with lawyers. We are 
advocating that veterans receive the benefit of an additional 
option. 

The most important function lawyers can serve at 
the VA, as they have at other federal agencies, is that of 
mediator between the veterans and the agency. The typical 
lawyer who advocates before an administrative agency does not 
fit the stereotypical image of adversarial trial-type litigator, 
the image created by some who oppose lawyer participation at 
the VA. Persons familiar with federal agency practice know 
that the role of an administrative advocate is far different 
from a courtroom litigator. The administrative lawyer frequently 
acts to explain a complex agency to a client, attempts to clarify 



249 



- 21 - 

issues for both the client and the agency, and tries to resolve 
claims with as little acrimony as possible. The reason why 
lawyers would function this way is obvious. The VA is not an 
adversary process, and there is no attorney on the other side 
to argue against. 

An even more telling point against the argument 
that lawyers will somehow infect the system is to look at the 
BVA itself. The BVA has fifteen sections each with three members. 
Fourteen of the fifteen sections .have two of the three members 
who are lawyers. In the fifteenth section all three members 
are lawyers. In addition, each section has seven or eight 
staff attorneys. In short, the entire decision-making process 
is monopolized by attorneys. Everything is done in legalistic 
terms. To argue that allowing the veteran to have a lawyer 
will infect the process with legalism ignores the reality of 
the process as it now exists. 

Lawyers have been trained to approach issues in a 
certain way and that method is used to adjudicate issues at all 
federal agencies and in the courts. We have been told that 
the presentation of briefs to the BVA, which we do in every 
case, has helped the members better understand the legal issues 
and the factual record. Given the incredible caseload at the 
BVA, clarification of issues will assist the BVA and at the 
same time give the veteran informed access to the system. 

There is another result from the introduction of 
lawyers that will be beneficial to veterans and the agency. 
It is common to all lawyer-client relationships, and that is 
when a lawyer advises a client that he or she does not have a 
meritorious case. We have found that providing a client with 
frank advice about the chances of success is welcomed by the 
client who never before knew the real merits of the case. 
This is not to say that disgruntled clients will not seek an- 
other, more favorably inclined lawyer but the point bears 
consideration. In this way, lawyer participation could signifi- 
cantly reduce the caseload of the agency on grounds that are 
sound and in a manner that leaves the client with a sense that 
a full and fair consideration by an independent professional 
has been given in the case. 



250 



- 22 - 

S. 636 and the House bills still place unduly 
strict limits on attorneys fees. For example, some provisions 
keep the ten dollar limit until the VA process has been exhausted, 
and the limit for C9urt work is still unrealistically low. 
WA feels that these provisions, while a welcome change from 
the past, are not sufficient to assure that veterans will have 
the freedom to choose their own representative and have legally 
trained counsel assist in making an early record for cases 
that are likely to end up in court. We would be happy to 
assist the Committee staff revise these provisions. 

Thank you. 



251 






I 1^ P.aBQX 68237 POfftTLANO^ OREGON 97268-0237 

^V (503) 669-9912 



procexr 



ilia 



TESTIMONY OF 
PHILIP E. CUSHMAN v 
EXECUTIVE DIRECTOR 
VETERANS DUE PROCESS, INC. 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

COMMITTEE ON VETERANS' AFFAIRS 

UNITED STATES HOUSE OF REPRESENTATIVES 

CONCERNING 

JUDICIAL REVIEW OF VETERANS ADMINISTRATION 

DETERMINATIONS AND TO PROVIDE FOR REASONABLE 

ATTORNEYS FEES IN ADMINISTRATIVE APPEAL HEARINGS 



JULY 26, 19 83 



252 



^fvtcrans 



■ 1^^ RttBOX 68237 PORTLAND OREGON »7268-(^ 

iM^ • *^*^ "o*«' (503) 669-9912 



pfocexr-^^ 



MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: 

Thank you for the opportunity to appear today to present the views 
of VETERANS DUE PROCESS, INC. (VDP) concerning Judicial Review of the 
Veterans Administration (V.A.), and the elimination of the ten dollar fee 
limitation which effectively denies veterans the free choice to hire 
professional legal counsel. I am Philip E. Cushman, the Executive Director 
of Veterans Due Process, which is a national non-profit veterans rights 
organization, dedicated primarily to the restoration of the basic 
constitutionally guaranteed right of DUE PROCESS OF LAW to America's 
battle-injured veterans. This organization is comprised of veterans of 
World War 1, World War 11, Korea, Vietnam, and other concerned American 
citizens. Our active leadership are, for the most part, confcat veterans. 

For the past few years, VDP and its predecessor concerned citizens, 
have been very concerned by the condition of "veterans rights." As we 
have indicated in previous letters to the House Committee on Veterans' 
Affairs, and to each of the members of the entire Congress, our primary 
concerns are as follows: 

1. The fact that existing statute law closes the doors of every 
court of law in America to veterans who wish to appeal a wrongful 
or illegal decision of the V.A., to a fair and IMPARTIAL court 
of law. (38 use 211a) 

2. The fact that veterans are presently denied the right to counsel 
by existing statute law, which makes it a crime for an attorney 

to charge a veteran more than $10.00 for total services rendered. 
Any attorney who violates that law can be sent to prison for 2 
years at hard labor. (38 USC 3404,3405) 

3. Veterans are denied the protections of the Administrative Procedures 
Act of 1946 (APA) , which was enacted in order to protect the 
rights of American citizens from being VIOLATED by agencies of 
the federal government. (60 Stat 237, 5 U.S.C.A.). The V.A. has 
been EXEMPTED from having to comply with the APA. (320 F2d 455; 

84 S Ct 675; 117 F. Supp 842; etc.) 

4. Should a veteran who has been wrongfully or illegally denied 
benefits to which he or she is entitled by law, be successful 
in convincing "ANY" other official of the United States that 
an injustice has occurred, and seek that officials intervention 
in his V.A. case, that official will probably soon learn that 
existing V.A. law will allow "NO OTHER OFFICIAL" to have power 
or jurisdiction to "REVIEW" any decision of the Administrator 
of the V.A. (38 USC 211a) 

In summary, America's battle-injured veterans are not only denied the 
right to appeal their cases to a fair and IMPARTIAL court of law, but 
are also denied the right to counsel, the protections of the APA, and 



253 



help from any other official of the United States. The V.A. is allowed 
to sit in final judgement of its own decisions. It has total discretion, 
total impunity, and absolute power. It cannot be required to defend 
its decisions. 

Veterans Due Process considers this situation to be an unconscionable 
deprivation of basic DUE PROCESS OF LAW rights, which the Constitution 
of the United States guarantees to every American citizen. I am not an 
attorney, but I know that the concept of Due Process of Law, in the final 
analysis, means "FUNDAMENTAL FAIRNESS" or expressed differently, respect 
for that feeling of just treatment, ENFORCED BY LAW . 

It is common knowledge that the FIFTH AMENDMENT to the Constitution 
provides that "nor (shall any person) be deprived of life, liberty, or 
property, without Due Process of Law." 

One of the attachments to this testimony, entitled "COMPARATIVE 
LEGAL RIGHTS," serves as a very effective visual aid, which this 
organization routinely utilizes in order to explain this mockery of 
justice which victimizes America's veterans. That fact sheet, emphasizes 
the fact that claimants with other agencies of the federal government, 
such as Social Security, have access to appeal decisions of the agency 
to a fair and impartial court of law, and the right to hire an attorney. 
It also indicates that people with workmans compensation claims and welfare 
cases also enjoy those protections. It is interesting to note that illegal 
aliens (non-citizens) are protected by Due Process of Law. 

Our high regard for justice as a nation, carefully and judiciously 
protects the rights of murderers, rapists, thieves, traitors, spies, 
assassins, terrorists, etc. Ironically, however, veterans who have been 
injured in battle, defending the rights of every other citizen, are 
denied the protections of the law afforded to every other group on the list. 

Can it be that battle-injured veterans are somehow less entitled 
to the protections of the Constitution of the United States simply 
because they were injured in its defense? We don't think so! VDP does 
not seek any preferential treatment under the law for veterans, just 
the same rights enjoyed by the rest of the American people. 

With increasing frequency, the American people are hearing sad 
news reports about the plight of the "Atomic Veterans" or "Agent Orange 
Veterans" as well as other injustices to veterans. In response to that 
fact, and the fact that the problems of the "Veterans Community" are 
often perceived as being very numerous, we at VDP launched an effort 
in order to inform the veterans community and the American people, that 
the vast majority of the seeming "MYRAID" of veterans problems and 
complaints concerning decisions of the V.A., all have a COMMON DENOMINATOR, 
which is, of course, the fact that veterans are denied a fair chance 
at justice DUE PROCESS OF LAW. 

Due process of law now appears to be the cohesive force which is 
uniting America's veterans, and veteran's organizations. They are 
directing their attention away from the "SYMPTOMS" of the problem and 
are joining in the common denominator which can assure fairness and 
a chance for justice, to them all. The formerly fragmented and 
consequently often ineffective individual veterans organizations, are 
increasingly demanding the right to be allowed to share in the protections 



9'u.';m» n aQ_ 



254 



of the FUNDAMENTAL LAW — the Constitution — which they fought and were 
often injured defending. Tragically, the survivors of those who made the 
supreme sacrifice on the field of battle, can also be victimized by these 
UNFAIR laws. 

Last year. Veterans Due Process contacted the leading Vietnam veterans 
organizations across our nation, and asked that they join us in a meeting 
to be held in the United States Capitol on November 10, ]982, in order to 
isolate the common denominator of the majority of veterans problems with 
the V.A. as being the fact that veterans are presently denied Due Process 
of Law, and thus relegated to second class citizenship. 

Those assembled organizations, known as the "VIETNAM VETERANS 
ORGANIZATIONS UNITED" (WOU) , met on that date and adopted a RESOLUTION 
(copy attached to this testimony) calling upon the Chairman and the 
members of the House Committee on Veterans Affairs to report, and for the 
full membership of the House of Representatives to approve the pending 
legislation providing for Judicial Review of V.A. decisions adverse to 
the veteran. VDP also invited all of the other veterans organizations 
in America, as listed in the official V.A. directory, to attend the 
meeting, join with us, and sign the Resolution. Many other organizations 
sent representatives and the Air Force Sergeants Association signed the 
Resolution. It was that historic meeting and Resolution, which marked 
the beginning of the restoration of Due Process of Law for America's 
veterans. 

I will never forget during that meeting in the Capitol, when a 
representative of one of the large veterans organizations came up to 
me and said: 

"WE HOPE THAT YOU ARE SUCCESSFUL IN YOUR EFFORT - -' " 
TO BRING THE V.A. UNDER CONTROL OF LAW, BECAUSE T 
THE SYSTEM AS IT PRESENTLY EXISTS, IS A SYSTEM 
WHICH CAUSES MEN TO BETRAY THEIR OWN SOULS." 
I have listened to V.A. employees tell me the same thing, only in 
different words. 

On the morning following the ineeting of the WOU in the Capitol 
and the adoption of the Resolution, I arranged for a press conference 
for the WOU, in the Russell Senate Building, in order to focus attention 
on this problem, and on the efforts of America's Vietnam veterans 
organizations and some of our friends in Congress (as well as other 
concerned citizens) to bring about the needed change to the law. 

I was very honored to be joined at that press conference by Senator 
Gary Hart, Congressman Tom Daschle, Congressman Ron Wyden , and Fred Davis 
(the Dean of the University of Dayton Law School), who all spoke out 
against this injustice. Senator Hart, while mentioning the dedication of 
the Vietnam Veterans Memorial which also took place in Washington D.C. , 
that week, indicated that in addition to a memorial in stone to the 
Vietnam veterans, that it would be difficult to envision a more meaningful 
memorial to veterans, than a "MEMORIAL IN LAW" to restore their Due 
Process of Law rights under the Constitution of the United States, which 
they fought to protect. This organization is in total agreement with 
Senator Hart, and is very thankful to him for his long fight in order to 
enable veterans to regain their rights under the law. 



255 



During the past year, representatives of VDP have been telling the 
story of the lack of veterans rights, to the American people from coast 
to coast, and also to our nations veterans. Perhaps one of the most 
incredible aspects of this problem is that the American people have no 
knowledge that this situation exists, and of the potentially devastating 
effects which it could have on the lives of their loved ones — husbands, 
sons, brothers, etc. We have found that our fellow citizens are shocked 
when they learn about this matter, as are our brother and sister veterans. 
The American people ASSUME that veterans have the protections of the law 
which they fought to protect for all other citizens, but they are under 
an illusion. 

Many citizens are reluctant to believe this story when we tell them, 
and we therefore carry copies of Title 38 U.S. Code, in order to let them 
read the laws, and thus dispel any doubts in their mind. We are often 
asked: "HOW CAN THIS POSSIBLY HAVE BEEN GOING ON FOR 50 YEARS WITHOUT US 
KNOWING ABOUT IT?" Some people have suggested to us that there is a 
"MEDIA BLACKOUT" concerning this situation, but we tell them that 
regardless of the nature of the problem, that they should simply work to 
correct it, by passing this information on to their families and friends 
across the country, and ask them to also get involved and pass the word. 
The peaceful process of democratic government in the hands of dedicated 
citizens, can solve this problem, and restore rights to veterans. 

Also testifying before this hearing today is Mr. Fred Davis, who was 
previously mentioned in this testimony. I have known Mr. Davis for several 
years, and know that he has been involved in the issue of judicial review 
of the V.A. for over 20 years. His concern is that of a legal scholar 
over the principles involved, and I am proud to call Mr. Davis my friend. 
During 1978, Mr. Davis prepared a report for the ADMINISTRATIVE CONFERENCE 
OF THE UNITED STATES entitled JUDICIAL REVIEW OF BENEFITS DECISIONS OF 
THE VETERANS ADMINISTRATION. Contained within that report are a number 
of examples of cases where claims for judicial review were strong, and it 
is recommended that this Committee review that report and said examples of 
abuse as additional evidence of the need for judicial review. As but a 
small indication of the reason why this recommendation is made, is a portion 
of a letter which appears in APPENDIX F, from a Mr. Norman Johnson, a 
former staff legal advisor to the Board of Veterans Appeals (P. 788, hearing 
report) : 

"I want to leave you with one final example of B.V.A. attitudes: 
I once drafted and dictated an appeals decision granting service 
connection status for a black, Korean action veteran. The elements 
of the case were clear - his induction physical examination report 
indicated normal feet. The separation physical indicated "pes 
planus" or flat feet, not an unusual development over the course 
of Army service and one that can be painful and limiting for all 
of the jokes that are made of it. The facts and the law were clear , 
but the decision was returned to me with instructions to deny the "claim . 

I found it difficult to evade the letter of the law and I considered 
it dishonest to arbitrarily deny the facts in order to reach the 
decision my supervisor desired . I asked the section chairman why 
the decision was to be a denial. He explained that it was because 
the veteran was black and all black people eventually get flat feet. 
It was a "racial characteristic" I now wonder how many decisions 
were written or decided by that man in his thirty-odd years with the 
Board of Veterans' Appeals?* 
Judicial Review could certainly have had a bearing on that situation. 



256 



I would also like to direct the attention of the Committee members 
to the case of Private Leroy Baily, which appears at the bottom of the 
attached "COMPARATIVE LEGAL RIGHTS" sheet. I could sit here all day 
and cite cases of V.A. abuse of which I have read, heard about, or 
discussed with veterans. VDP, for the most part, does not become involved 
in individual veterans cases, or their relative merit. It is simply 
our contention that if a person who has been injured defending the 
Constitution, believes that he has been wrongfully or illegally denied 
that to which he is entitled by law from the V.A. , that he has earned 
the right to a fair and IMPARTIAL and MEANINGFUL appeals 
process, with professional counsel at his side, if he so chooses. 

During 1981, situations such as that described in the "Norman 
Johnson" letter (quoted in part above) , caused me to think seriously 
about Article VI of the United States Constitution, section 2, which 
appears in part as follows: 

"THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH 
SHALL BE MADE IN PURSUANCE THEREOF . . . SHALL BE THE SUPREME 
LAW OF THE LAND ..." 

Section 3 of Article VI appears in part as follows: 

". . .ALL EXECUTIVE AND JUDICIAL OFFICERS, BOTH OF THE UNITED 
STATES AND OF THE SEVERAL STATES, SHALL BE BOUND BY OATH OR 
AFFIRMATION TO SUPPORT THIS CONSTITUTION . . . " 

It occurred to me that the B.V.A. section chairman mentioned in the 
"Johnson" letter, and Johnson himself, were quasi- judicial officers of 
the United States Veterans Administration, and held office under the 
authority of the United States, and therefore should have been required 
to not only take an oath to support and defend the Constitution, and bear 
true faith and allegiance to it, but would consequently be bound by 
Section 2 of the Constitution, which is, in my opinion, a mechanism 
placed in the Constitution by the founding fathers, in order to protect 
the Constitutions integrity. It is our opinion that said section of the 
Constitution places a responsibility upon all judicial officers of the 
United States (quasi or not) to ask of themselves a question concerning 
the laws which they are tasked to enforce. That question is: 

IS THIS LAW OF THE UNITED STATES IN PURSUANCE OF THE CONSTITUTION? 

If the answer is "NO" than said "LAW OF THE UNITED STATES" cannot be 
regarded as the "LAW OF THE LAND" and cannot be enforced as law. 

It could logically be concluded from the "Johnson" letter, that the 
claimants constitutionally guaranteed Due Process of Law rights (his right 
to a FAIR decision, consistent with the facts and applicable laws, were 
violated, supposedly under "color of law." Almost 200 years ago, Thomas 
Jefferson in anticipation of such situations described above said: 

". . .IN QUESTIONS OF POWER THEN, LET NO MORE BE HEARD OF 
CONFIDENCE IN MAN , BUT BIND HIM DOWN FROM MISCHIEF BY THE 
CHAINS OF THE CONSTITUTION ." 

Concern over situations such as those referred to above, also resulted 
in my writing a letter dated February 10, 1981 to Mr. S.G. Petterson, 
the then acting V.A. Adjudication Officer in the Portland, Oregon, V.A. 



257 



Regional Office. In that letter, it was my intent to determine if V.A. 
quasi-judicial officers felt "ANY" responsibility at all to the 
Constitution of the United States. I therefore semply asked: 

"ARE JUDICIAL OFFICERS OF THE V.A. REQUIRED TO TAKE AN OATH TO 
UPHOLD, SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES? 

Mr. Pettersons letter in response, dated February 2, 1981, the question 
was answered with one word — NO? In a February 10, 1981 letter to Mr. 
Patterson, I pointed out the mandate of the Constitution concerning said 
situations, and asked that he explain on what basis the V.A. had been 
exempted from the mandate of the Constitution. Mr. Pettersons response 
to that letter appeard in part as follows: 

"YOU ARE ABSOLUTELY CORRECT. . . I HAVE ATTACHED A COPY OF THIS FORM 
FOR YOUR INFORMATION. I APOLOGIZE FOR THE OVERSIGHT ON OUR PART. . ." 

The POINT of the above exchange of letters, in my opinion, is that an 
adjudication officer of the V.A. neither knew of, nor felt, any responsibility 
or obligation to the Constitution, or its Due Process of Law protections 
of the rights of the American people — YET — that man was tasked with 
the trust of participating in decision making processes concerning the 
lives of citizens who were injured defending the Constitution. I was 
shocked. 

Concerning the STANDARD OF REVIEW/SCOPE OF REVIEW which a court 
should, in our opinion, exercise over V.A. decisions. Veterans Due Process 
defers to the judgement of those perceived by this organization to he 
expert in the technicalities of the law in this specific area. The 
National Veterans Law Center and the judgement of David F. Addlestone, 
Ronald Simon and Lewis Milford, concerning the scope of review, are the 
best expressions of this issue of which we are aware , and we are In 
agreement with them. 

In reviewing that organizations recent statement before the Senate 
Veterans Affairs Committee, the two possible alternatives are as follows: 

1. ARBITRARY AND CAPRICIOUS TEST: REVIEW OF QUESTIONS OF LAW. 

2. SUBSTANTIAL EVIDENCE TEST: PROVIDES FOR REVIEW OF FACT. 

Veterans Due Process supports the "SUBSTANTIAL EVIDENCE TEST" based upon 
the reasons outlined on the statement to the Senate Veterans Committee, 
and also because our research of the issue leads us to believe that the 
substantial evidence test would do more to ensure the FUNDAMENTAL 
FAIRNESS which we seek, both in V.A. decisions and court review. 

VDP has also taken notice of the statement of Fred Davis, as it 
appears in the minutes of the October 26, 1978 ADMINISTRATIVE CONFERENCE 
OF THE UNITED STATES meeting, page 3, paragraph 5, wherein he stated: 

". . .THE ARBITRARY AND CAPRICIOUS TEST IS NOT VERY MEANINGFUL. . ." 

VDP does believe that in a case wherein a veteran presents his claim 
ALONE, wherein he does not assert all the evidence which he has, and thus 
presents an ill grounded case; that a review "de novo" would be almost 
necessary in assuring that the veteran would have a full and complete 
airing of his claim. It is our opinion that a federal district court, in 
such a situation, could not properly review the case and come to a just 
result based on the "substantial evidence test." 



258 



VDP is aware that there is some interest in the creation of a special 
veterans court, which would review cases appealed from the B.V.A. We are 
opposed to that concept for numerous reasons, including those listed by 
David F. Addlestone at the National Veterans Law Center. 

Concerning the $10.00 limitation on attorneys fees, VDP urges Congress 
to eliminate that antiquated law (passed in 1862) . Veterans should have 
the right to hire an attorney to represent them through the V.A.'s complex 
legal system, if they choose to do so. We can appreciate the concern 
expressed by some other veterans organizations concerning "over reaching 
or unscrupulous" attorneys, but the overriding consideration should be to 
maximize the possibility for a veteran to secure Due Process of Law 
protections. Under present law, the veterans only avenue for procuring 
legal representation is through one of the veterans service organizations, 
thus REQUIRING that person to approach a private organization in order to 
try to obtain benefits to which he is entitled by law. Battle-injured 
veterans have certainly earned the right to hire professional counsel, 
and should not be denied denied that freedom. 

It is the opinion of VDP that the attorney fee limitation as it exists 
in existing judicial review bills, is still unrealistically low in 
todays world, and in our opinion, could continue to deny the veteran the 
freedom to seek professional legal help — the right to counsel. 

I come from the corporate world, and was educated in business 
analytical skills in college, through the Dun & Bradstreet educational 
system, and on the job as an employee of a major national corporation, 
at the corporate headquarters level. One of my functions while employed 
in that capacity, was as a member of a corporate troubleshooting team 
which was dispatched to divisions and subsidiaries of the corporation 
-*^en they were failing to meet corporate projections (budget, etc.) . Our 
first job in such situations was to define the problems by conducting 
a thorough analysis. Almost without exception, the problems were people, 
and we would implement corrective mechanisms in order to bring those 
corporate members back into the standards of the corporate family. It 
is only the close SCRUTINY which exists within the corporate framework, 
which enabled the corporate headquarters- to detect problems, and correct 
them. 

My corporate background causes me to shudder whenever I think about 
the lack of accountability/freedom from scrutiny, which the V.A. presently 
enjoys in its consumption of taxpayers dollars. I have listened to members 
of Congress complain: "WE CANNOT EVEN LOOK INTO THE V.A. IN ORDER TO ENSURE 
THAT IT IS FOLLOWING THE MANDATE OF THE United States Congress." 

The V.A. had a quote from Abraham Lincoln on the bottom of its 
letterhead which appeared as follows: 

"TO CARE FOR HE WHO HATH BORNE THE ^BATTLE, AND FOR HIS WIDOW, AND HIS 
ORPHAN." 

It is our opinion that the V.A. now considers its primary function as 
being: 

"TO CARE FOR HE, WHO CARES FOR HE WHO HATH BORNE THE BATTLE..." 

In other words, it is the opinion of many people, that the V.A.'s primary 
concern now, is to perpetuate itself, which is a rather easy transition 



259 



to make, for an agency which enjoys freedom from outside scrutiny. 

Chairman Montgomery and the members of this Subcommittee, on the 

basis of this and the other testimony which you have heard during these 

hearings on Judicial Review, I urge you to support the passage of a 
meaningful form of Judicial Review for America's veterans. 

The Senate has voted unanimously once again on the judicial review 
legislation, as it has session after session of Congress, in order to try 
to make Due Process of Law a reality for America's veterans. It is our 
belief that a meaningful form of judicial review for veterans is in your 
hands, and we ask that you please allow the entire House of Representatives 
to vote the will of their constituents on this important matter. 

Mr. Chairman, this concludes my statement, and I will be glad to 
answer any questions that I can. 



THANK YOU. 



260 



« 



eterans 

pioceu 



P.O. BOX 68237 PORTLAND^ OREGON 97268-0237 

(503) 659-9912 

INC 



COMPARATIVE LEGAL RIGHTS 



GROUP 


RIGHT TO APPEAL TO 

A FAIR AND IMPART I Al 

COURT OF LAW 


RIGHT TO HIRE AN 
ATTORNEY 


CLAIMANTS WITH OTHER AGENCIES 
OF THE FEDERAL GOVERNMENT. 
SUCH AS SOCIAL SECURITY. 


YES 


YES 


WORKMAN'S COMPENSATION 
CASES. 


YES 


YES 


WELFARE CASES. 


YES 


YES 


ILLEGAL ALIENS. 


YES 


YES 


MURDERERS. RAPISTS, THIEVES. 


YES 


YES 


TRAITORS, SPIES. ASSASSINS. 
TERRORISTS. ETC. 


YES 


YES 


VETERANS. INJURED DEFENDING 
THE CONSTITUTION AND THE 
RIGHTS AND FREEDOMS WHICH IT 
GUARANTEES FOR Aa AMERICANS. 
INCLUDING THE GROUPS LISTED 
ABOVE. 


NO 

(Title 3B United States 
Code, Section 211a) 
(Veterans Admin. Law) 


NO 

(Title 38 United States 
Code, Section 3404c) 






The Veterans Administration (V.A.) site In final Judgment of Ite own 
decisions. It is also EXQ'IPTED from having to comply with the ADMIN ISTRATI\fE 
PROCEDURES ACT OF 19A6 (Title 5 U.S. Code), which was passed to protect Che rights 
of Che American people from violation by our government. 

The above cited statues "have even Seen held to preclude Judicial 
relief from decisions of the Administrator (V.A.), where such decision Is whol ly 
unsupported by evidence, wholly dependent upon a Question °f^f"i f^^'^lj^ 
arbitrary or capricious . (Ref: American Law of Veterans, 1954 Edlcion, The 
Lawyers Co-Operacive Publishing Company, Page 53). 

IT'S TIME FOR A CHANGE, AND WE NEED YOUR HELP. 

PLEASE CONTACT: Veterans Due Process, Inc. 

P. 0. Box 68237 
Portland. Oregon 97268 
(503) 659-9912 

Please also write your congressmen and the President and teli them to vote in favor of current 
legislation which would protect members of your families from being victimized by these bad laws. 



A TRAGIC CASE IN POINT 



. . . "Hte crippled veteran return* home to «n uncertain life •he*d «nd 
to the certainty of a callous and squalid VA Hospital system. Private Leroy Bally 
waa Bleeping Id Vietnam when a Cong rocket tore through hla tent and exploded Id 
his face. He lived. After three years In a Chicago VA Hoapltal. he waa dlacharged 
without a face. He had one overvhelmlng dealre — to chew solid food again. A 
private aurgeon begsn a series of operations to recooatruct Leroy'e face. The 
flrat bill seat to the VA prompted this reply. 

". . . IT IS REGRETTED THAT PAYMEKTS OH THE 
ABOVE CANNOT BE APPROVED. SINCE THE TREATMIMT 
WAS FOR A CONDITION OTHER THAN THAT OF YOUR 
SERVICE-ORIDTTED DISABILITY. ..." 

The VA Inflexibly maintained this decision and only a Presidential Intercession 
finally forced them to provide the benefits Leroy Bally ■erlted. 

REF: TOD CAB PICBT CITY HALL AHD WW. by TbOMSa A. Petlutl 
ISBN 0-8102-016ft-J (Page 69) 



J 



261 



RESOLUT ION 

VIETNAM VETERANS ORGANIZATIONS UNITED 
November 10, 1982 



WHEREAS, veterans with claims against the Federal government, 
through the Veterans' Administration are precluded from any Judicial 
Review as to questions of fact or law from adverse decisions by the 
Veterans' Administration; and 

WHEREAS, veterans with claims against the Federal government, 
through the Veterans' Administration are effectively denied the right 
to an attorney due to a $10.00 limitation on attorneys' fees; and 

WHEREAS, this denies veterans due process of law, guaranteed to 
every American by the Constitution, and thus relegates a veteran to 
a second class citizenship status; and 

V.HEREAS, there is presently pending in Congress legislation 
that will provide for Judicial Review for decisions adverse to such 
veterans. 

NOW, THEREFORE, BE IT RESOLVED, That the Vietnam Veterans 
Organizations United, by their delegates assembled in the United 
States Capitol Building, Washington, D.C., on November 10, 1982, 
do hereby call upon the Chairman and members of the House Committee 
on Veterans Affairs to report, and for the full membership of the 
House of Representatives to approve, legislation passed by the United 
States Senate (S.349, The Veterans Administration's Administrative 
Procedure and Judicial Review Act) providing for Judicial Review 
of Veterans Administration decisions adverse to the American veteran. 
In addition, the Vietnam Veterans Organizations United hereby urges 
the President of the United States to reverse his opposition to this 
legislation and vigorously support its adoption. 




an Jordan 
Natyij. Commander 
United Viftinam Veterans Org. 





E*hilip E. Cushman 
Veterans Due Process, Inc. 



John Terzano 

Vietnam Veteran of American 



//y Jeff Stanton 
Center for Veterans Rights 





Patrick M Reillv 
Brotherhood of Vietnam Veterans 



Air Force Sergeants Association 



262 



STATEMENT OF RANK E.G. WEIL 

FOR THE AMERICAN VETERANS COMMITTEE (AVC) 

BEFORE 

THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE 

HOUSE VETERAN AFFAIRS COMMITTEE 

ON 

JUDICIAL REVIEW OF VA DECISIONS AND 

LIMITATIONS OF AHORNEYS' FEES 

JULY 26, 1983 



Mr. Chairman and Members of the Committee: 

The AMERICAN VETERANS COMMITTEE appreciates this opportunity to appear 
before you and address the important issues of Judicial Review of VA Decisions and 
Limitations of Attorneys' Fees and the related legislation now pending before this com- 
mittee. My name is Frank E.G. Weil; I am National Secretary of the American Vet- 
erans Committee and the Chairman of its Commission on Veterans Affairs and the Armed 
Services. I served in the United States Army during World War II as a Special Agent, 
Counter-intelligence Corps, and am a member of the bar of the District of Columbia 
and the State of New York. 

The AVC support* the principle of judicial re/iew of veterans claims, as well as 
that of lifting the restrictions on attorneys' fees, so as to enable those veterans who 
wish to, to avail themselves of the services of members of the bar. I have had the 
privilege of testifying before the Senate Committee on Veterans Affairs on October 10, 



263 



1977 and on March 22, 1979 on the some subject, and I wish to incorporate by reference 

my testimony on those two dates. 

The AVC has long been on record in favor of providing judicial review of VA 

decisions and of raising the limitations on attorneys' fees. Our current policy resolution 

on these crucial issues reads as follows: 

AVC supports the principle of review by the federal courts of 
the decisions of the Board of Veterans Appeals and abolition 
of the present $10 limit for attorneys' fees which now inhibits 
representation of veterans by attorney. 

To that end, AVC supports S. 636 and similar legislation. 

AVC does have some suggestions applicable to S.636 and H.R, 2936 (references 

to S.636 are to the version dated May 18, 1983, as reported by Senator Simpson with 

amendments): 

1 . AVC prefers the provisions of H.R. 2936 to those of §105 of S. 636. The 
House proposals ore clearer and less cumbersome. If however, § 105 is to prevail, 
AVC wishes to point out that § 105(2)C) is not clear; this provides that, in case of a 
disagreement between members of the section of the Board of Veterans Appeals (BVA), 
the additional members appointed under 4001(c)(1) or (2) are not to vote. If, in all 
coses in which there is disagreement within the BVA section, the Chairman of the BVA 
comes into the picture and casts the deciding vote, then there is no need for the restriction 
on voting by the "extra" members. If this is not the case, the restriction makes no sense. 

2. AVC disagrees with the wording of proposed 4009(c) which bars judicial 
review in case of medical disagreements. These matters should be open to judicial review 
on the some basis as other matters. 



264 



3. Ave agrees with Hie language of Section 201 , except for the italicized 
words (presumably inserted as a part of Senator Simpson's omendmenKs)). § 201 brings 
VA regulations under the Administrative Procedures Act (A)A); the VA would join the 
bulk of the government in being subject to the APA. The rest of the government manages 
to deal with matters pertaining to agency management, personnel, public property and 
contracts, despite being subject to the APA, and the VA should deal with those matters 
in the same manner; being partly subject and partly not subject to the APA makes for 
needless complications. 

4. Ave endorses the proposals contained in Title III of the bill, on judicial 
review. AVC suggests, however, that instead of limiting the forum to the United 
States District Courts, access be also provided to the United States Claims Court (the 
newly created successor to the Court of Claims), with appeals going to the United 
States Circuit Court for the Federal Circuit. These courts are already familiar with 
much of the subject-matter likely to be covered by veterans claims, and may be more 
ready to handle VA benefit matters. 

5. AVC endorses Title IV on attorneys' fees in principle, but with the foUowing 
observations: 

a. The continuation of the previous $10 limit through the final decision of 
the Administrator is likely to prove counterproductive. It is often easier for counsel to 
guide an applicant early rather than having to overcome the mistakes made at an earlier 
stage by an applicant pro se . It is also likelier to result in applications for judicial re- 
view. AVC suggests that this limitation be substantially roised, or abolished. 



265 



b. Basing the ceiling on attorneys' fees on percentages of post-due benefits 
may give attorneys on incentive to delay final resolution of coses, so that the amount 
of past-due benefits is sufficiently large to yield a higher fee. AVC recommends drop- 
ping the "past due" and substituting a provision that the attorneys 'fee may not consume 
more than a stated percentage of benefits coming due subsequent to the resolution of 
the matter. This would prevent attorneys' fees from swallowing a large percentage of 
current benefits, while making current benefits available as a source of fees. Where 
there were already benefits payable, but the claim as to which the fee is payable results 
in an increase, the fee should be limited to some portion of the increase, until the total 
fee is paid. 



REBECCA (BECKY) DeBOER 

JACKSON COUNTY 
DISTRICT 50 

REPLY TO ADDRESS INDICATED: 
D House of Representatives 

Salem. O' eg on 97310 
D P Bo> 4248 

Medlord. Oregon 97501 



266 




COMMITTEES 
Vice-Chair 

Business ft Consumer AHatrs Committee 



Human Resources Committee 
Labor Committee 
Caucus PoliCY Committee 
Stale Chairperson 
American Legislative ENcnange Council 



HOUSE OF REPRESENTATIVES 

SALEM. OREGON 

97310 



STATEMENT OF OREGON STATE REPRESENTATIVE 
REBECCA (BECKY) DE BOER, DISTRICT 50 
JACKSON , COUNTY , OREGON 



BEFORE THE 
HOUSE VETERANS AFFAIRS SUBCOMMITTEE ON 
OVERSIGHT AND INVESTIGATIONS. 
JULY 21, AND 26, 1983 



SUBMITTED BY: 



AAm-j 



REHECCA (BECKY) DE BOER 

I^RESENTED BY: 
JEFFREY R. STANTON 



267 

TESTIMONY OF REBECCA (BECKY) DE BOER 
OREGON STATE REPRESENTATIVE DISTRICT 
50, JACKSON COUNTY 

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE 

I WISH TO THANK YOU FOR THE TIME AND OPPORTUNITY TO PRESENT 
TESTIMONY ON THE ISSUE OF JUDICIAL REVIEW AND ATTORNEY FEES. 

THE LEGISLATION BEFORE YOU TODAY HAS BEEN A STRONG CONCERN OF 
MINE AND I FIND IT INCONCEIVABLE THAT OUR NATIONS DEFENDERS 
HAVE BEEN DENIED THEIR DUE PROCESS PROTECTION. THIS INJUSTICE 
HAS CONTINUED FOR TO MANY YEARS. 

MY STAFF HAS INVESTIGATED THE ISSUE ON JUDICIAL REVIEW AND THE 
$10.00 LIMIT ON ATTORNEY FEES. OF INTEREST TO ME IS THE VETERANS 
ADMINISTRATIONS ANNUAL REPORTS OF 1977, 1978, AND 1979 WHICH STATES 
"THE MODERN TREND OF THE COURTS IS TO ASSUME JURISDICTION IN 
OTHER TRADITIONALLY NONREVIEWABLE AREAS. THIS TREND AND THE 
CONTINUING CONCERN IN THE VETERANS ADMINISTRATION TO INSURE THAT 
VETERANS AND DEPENDENTS RECEIVE ALL THE DUE PROCESS PROTECTION 
AVAILABLE TO OTHER AMERICANS COMPELLED THE VA TO REEVALUATE THE 
POSITION OF THE AGENCY WITH RESPECT TO JUDICIAL REVIEW. THE 
AGENCY NO LONGER OBJECTS TO MODIFICATION OF THE LONGSTANDING STATUTORY 
PROHIBITION OF JUDICIAL REVIEW." WITH THE FACT THAT 68,229 VETERANS 
HAD NO REPRESENTATION OR PRESENTED THEMSELVES ON CLAIMS BEFORE 
' THE BOARD OF VETERANS APPEALS FROM 197 2 THROUGH 1979, CONVINCES 
ME OF A NUMBER OF BENEFITS FOR JUDICIAL REVIEW AND REVISION OF THE 
ATTORNEY FEE LIMITATION. 
PAGE 1 



268 



1. THE 68,229 VETERANS WOULD HAVE HAD THE OPTION TO HIRE AN 
ATTORNEY FOR A REASONABLE FEE TO REPRESENT THEM, TO OBTAIN A 
MEASURE OF JUSTICE. 

2. THE VETERAN OR DEPENDENTS WITH BENEFITS CLAIMS PENDING FOR 
ONE, FIVE OR TEN YEARS, MAY NOT HAVE DROPPED THEIR CLAIMS IF 
THEY HAD THE AVAILABILITY OF AN ATTORNEY TO REPRESENT THEM. 

3. IT IS ONLY JUST TO ALLOW THE VETERAN THE OPTION OF AN ATTORNEY 
FOR A REASONABLE FEE, WHEN THE BOARD OF VETERANS APPEALS HAS A 
STAFF OF OVER 140 ATTORNEYS. 

AS A RESULT OF THESE FACTS, THE SIXTY-SECOND LEGISLATIVE ASSEMBLY 
OF THE STATE OF OREGON ADOPTED WITH UNANIMITY, SENATE JOINT MEMORIAL 
1 WHICH ASKS CONGRESS OF THE UNITED STATE TO PROMPTLY APPROVE AND 
ENACT THE VETERANS ADMINISTRATION ADJUDICATION PROCEDURES AND 
JUDICIAL REVIEW ACT. (COPY ATTACHED) 

ADDITIONAL SUPPORT FOR THIS LEGISLATION INCLUDES GOVERNORS LETTERS, 
STATE MEMORIALS, RESOLUTIONS AND PROCLAMATIONS FROM THE STATES OF 
OREGON, OKLAHOMA, WYOMING, PENNSYLVANIA, COLORADO, FLORIDA AND 
CONNECTICUT WHICH REPRESENTS 4,645,426 VETERANS. 

THANK YOU FOR THE TIME TO EXPRESS MY THOUGHTS ON THIS IMPORTANT 
ISSUE AND I HOPE THAT PROMPT ACTION WILL BE TAKEN TO APPROVE THIS 
LEGISLATION. 



269 



62ikI OREGON LEGISLATIVE ASSEMBLY -1983 Regular Session 

Enrolled 

Senate Joint Memorial 1 

Sponsored by Senator McFARLAND, Representative COURTNEY, Senators BROWN, DAY, 
Representatives DeBOER, FARMER, FORD, MASON, B. ROBERTS, L. ROBERTS, SPRINGER, 
YOUNG, ZAJONC, Senators FRYE, GARDNER, HAMBY, HEARD, ISHAM, McCOY, MONROE, 
POTTS, RIPPER, ROBERTS, RYLES, THORNE, TIMMS, WYERS, Representatives BROGOITTI. 
JOHNSON (at the request of Jeffrey Stanton, Philip Cushman, Veterans Due Process) 



To the Senate and House of Representatives of the United Slates of America, in Congress assembled: 

We, your memorialists, the Sixty-second Legislative Assembly of the State of Oregon, in legislative 
session assembled, respectfully represent as follows: 

Whereas under current federal law a veteran making a claim for benefits from the Veterans' 
Administration, or appealing an adverse decision concerning a claim, may not pay an attorney more than $10 
for legal services and representation; and 

Whereas this century-old fee limitation severely limits the ability of a veteran to obtain effective legal 
counsel; and 

Whereas current federal law further provides thai decisions of the Veterans' Administration on any 
question of law or fact concerning claims for benefits for veterans, their dependents or survivors are final and 
conclusive and not subject to review by any other official or court of the United Slates; and 

Whereas the Veterans' Administration is unique among major federal agencies in that its benefit decisions 
are not subject to the scrutiny of the federal courts; and 

Whereas this lack of effective' legal representation and absence of judicial review constitute a denial of due 
process of law to veterans; and 

Whereas this denial of due process often results in hardship and disillusionment for those who have 
defended our country; now, therefore. 

Be It Resolved by the Legislative Assembly of the State o( Oregon: 

(I)TTie Congress of the United Stales is memorialized to promptly approve and enact S. 349, the Veterans' 
Administration Adjudication Procedure and Judicial Review Act, or similar legislation, in order to provide for 
judicial review of certain final decisions of the Administrator of Veterans' Affairs and for payment of 
reasonable attorney fees for rendering legal representation to veterans claiming benefits under laws 
administered by the Veterans' Administration. 

(2) A copy of this memorial shall be sent to the President of the United Stales, the President pro tempore of 
the Senate, the Speaker of the House, the Ch.iirs of the Veterans Affairs Committees of the House and Senate 
and to each member of the Oregon Congressional Delegation. 



Adopted by Senate March 14, 1983 
Secretary of Senate 

Presiaent of Senate 
opted by House April 29, 1^3 

Speaker of House 





9fL— ti-iai n — «.•? 18 



270 



SHIRLEY GOU3 
MULTNOMAH COUNTY 
DISTRICT 14 

REPLY TO ADDRESS INDICATEO: 
D House of RspreMntJttvM 
Sat»m. Oregon 97310 

D 4828 SE 3St^ Avenue 
Portland. Oregon 97202 




COMMITTEES 
Chairperson: 

House Commmee on Human Resourcat 

House Sub-Commmee on Aglrtg and Minority Attwk% 
Member 

House Commrttee on Labor 



HOUSE OF REPRESENTATIVES 

SALEM. OREGON 

97310 



STATEMENT OF CXffiCXB STATE REPRESEWTATIVE 
SHIRLEY GOLD, DISTOICT 14 MULTNOMAH 



EEPCaffi THE 
HCUSE VETERANS" AFFAIRS SUB-OCMMITTEE 
CN OVERSIGHT A^D INVESTIGATIONS. 



JULY 21, and 26, 1983 



SUEMITTED BY: 



SHIRLEY GOLD 
PRESENTED BY: 

ELiaBETH RAWLINS-BCMDEAUX 



271 



"ESTIMONY OF SHIRLfY GOLD 

OREGON STATE REPRESENTATIVE DISTRICT i4 

miwm mm 

fk. Chairman and members of the committee 

I WISH TO THANK YOU FOR THE TIME AND THE OPPORTUNITY TO PRESENT TESTIMONY ON 
THE ISSUE OF JUDICIAL REVIEW AND ATTORNEY FEES. 

We HAVE HEARD OVER THE YEARS> MONTHS. AND WEEKS> MUCH TESTIMONY SUPPORTING THE 
PRESENT FORM OF REVIEW FOR VETERAN CLAIMANTS. HoWEVER. THE SUPPORTING TESTIMONY 
ONLY EMPHASIZES WHAT SHOULD BE - WHAT IS SUPPOSED TO BE - TAKING PLACE. NOT WHAT 
IS. 

The VA does not now enjoy a cooperative relationship with a veteran or 
dependent claimant in an effort to fully develop said claim prior to 

ADJUDICATION. ThE VA APPROVES CLAIMS THAT ARE SUPPORTED ONLY BY EVIDENCE 

PROVING BEYOND ANY DOUBT the case before it. The rules of evidence employed 
BY OUR Federal Judiciary system are. likewise, the deciding factor in the 
successful or unsuccessful outcome of a VA claim. 

We have heard age-old testimony which presupposes that if judicial review for 
veterans becomes the law of the land - veterans will be automatic and immediate 
prey for unscrupulous, self-serving or inadequately trained attorneys. This 
particular mind set is not only a slap across the proverbial face of our 
American Bar Association and all attorneys, but it is further discrimination 
against all veterans - PAST, present, and future - TO enjoy access to the 
courts of THIS land WHICH ARE accessible to the most heinous of societal offenders. 



272 



I FEAR THAT WHAT THIS ENTIRE ISSUE BOILS DOWN TO IS THAT THOSE WHO ENJOY THINGS 
THE WAY THEY NOW ARE^ MAY FEEL THREATENED AND PERHAPS SHOULD. ThE PRESENT 
SYSTEM IS NOT WORKING. It IS OUR RESPONSIBILITY TO MODIFY IT SO THAT IT DOES - 

at whatever short-term cost, as this cost will certainly be worth the long-term 
security we will all enjoy. 

Let's not use the feeble and superficial platform that judicial review will 

RESULT in EXHORBITANT ATTORNEY FEESj THAT JUDICIAL REVIEW WILL ROB THE VETERAN 
and/or DEPENDENTS OF THE BENEFITS GAINED IN LITIGATION; OR THAT JUDICIAL REVIEW 
WILL EXTRACT EVEN MORE DOLLARS FROM THE POCKETS OF TAXPAYERS. JUDICIAL REVIEW 
WILL ENSURE THAT THE VA AND THOSE SKILLED ADVOCATES FROM VETERAN'S SERVICE 
ORGANIZATIONS DO WHAT THEIR By-LAWS, THEIR CHARTERS, THEIR MEMBERS, PROMISE AND 
DIRECT, THUS ELIMINATING ANY OVERLOAD FROM MASSIVE VETERANS CLAIMS IN THIS 
country's COURTROOMS. Let's NOT FORGET - VETERANS ARE ALSO TAXPAYERS. WITHOUT 
VETERANS WOULD ANY OF US ENJOY ACCESS TO THIS NATION'S COURTS? WoULD WE ENJOY 
THE FREEDOM TO ASSEMBLE? WOULJD WE ENJOY ANY OF THE FREEDOMS WE NOW ENJOY? 

The MEN AND WOMEN WHO SERVED THIS COUNTRY (yOU AND ME) WENT BECAUSE WE TOLD THEM 

TO. Some of them did not want to go - many did. No matter, they still went. 
Those who returned needing help, were confident that they would find it, and 

THEY HAVE NOT. If THEY HAD, WE WOULDN'T BE SPENDING THOUSANDS OF DOLLARS ON 
hearings, here and NOW, IN AN EFFORT TO SECURE THIS HELP. It SADDENS ME TO SEE 
VETERANS LEFT WITH NO ALTERNATIVE BUT TO THANK THEMSELVES FOR A JOB WE TOLD THEM 

TO DO. That is OUR responsibility - not theirs. 

What veterans give us is TIFE. They give us TIFE to live our lives the way we 

WANT to, and they PROTECT THIS TIFE WHENEVER THEY ARE SENT INTO BATTLE. VIETNAM 
PAGE 2 



273 



VETERANS AND THEIR FAMILIES WILL ONE DAY BE CALLED UPON TO TAKE THEIR PLACES IN 

THE Legislature^ in the corporate business world> in this nation's top decision- 
making - as will THOSE WHO FOLLOW THEM. HoWEVER^ IT IS UP TO THE PEOPLE NOW IN 
THESE POSITIONS OF POWERy POSITIONS MADE POSSIBLE BY NONE OTHER THAN OUR PAST 
VETERANS^ TO ENSURE THAT EACH POSITION OF POWER IS HELD BY A COMPETENT^ CAPABLE 
INDIVIDUAL WITH THE FORESIGHT TO TRULY CARRY ON THE WISHES OF OUR FOUNDING FATHERS. 

To OVERLOOK THE SAFEGUARDS OF ENSURING STRENGTH AND COMPETENCE IN THIS COUNTRY'S 
FUTURE LEADERS/ IS TO SENTENCE EACH AND EVERY ONE OF OUR VERY OWN FAMILY MEMBERS 
TO INCONCEIVABLE HARDSHIP. We WILL IN ALL ACTUALITY^ BE LABELLING VETERANS AS 

A LIABILITY - A POOR RISK - as a wife or a husband, as a father or a mother, as • 
A provider, when that label ought actually be placed on us. If we cannot 

support our veterans through MEDICAL AND PSYCHOLOGICAL SERVICE CARE - FIRST 

rate service care - then we are the poor risk. 

Thank you for the time to express my thoughts on this most critical of issues, 

AND I sincerely HOPE THAT PROMPT ACTION WILL BE TAKEN TO APPROVE THIS 

legislation. 



PAGE 3 



274 



LONNIE ROBERTS 

MULTNOMAH COUMTY 

DISTRICT 21 
REPLY TO ADDRESS INDICATED 
£2 HOIA8 ol R«pr«aentaiivea 

S«lem. Oregon 97310 
Q 15615 5E Mill SimM 

Portland. Dragon 97233 




COMMTTTEES 



Agriculture and Naturst Resources 
Traraportation 



HOUSE OF REPRESENTATIVES 

SALEM, OREGON 

97310 



STATEMENT OF OREGON STATE REPRESENTATIVE 
LONNIE J. ROBERTS, DISTRICT 21 MULTNOMAH 

BEFORE THE 
HOUSE VETERANS' AFFAIRS SUB-COMMITTEE 
ON OVERSIGHT AND INVESTIGATIONS. 



JULY 21, and 26, 1983 



SUBMITTED BY: 



LONNIE J ROBERTS 
'^ PRESENTED BY: 

JEFFREY R. STANTON 



275 



TESTIMONY OF LOMIE J. ROBERTS 
OREGON STATE REPRESENTATIVE DISTRICT 
21 , MULTNOMAH COUNTY 

MR. CHAIRMAN AND M»EMBERS OF THE COMMITTEE: 

THANK YOU FOR THE OPPORTUNITY (VIA MR. STANTON) TO PRESENT MY 

VIEWS ON WHETHER THERE SHOULD BE JUDICIAL REVIEW OF VETERANS' 

ADMINISTRATION (VA) DECISIONS ON VETERANS' CLAIMS FOR BE^^EFITS 
AND SERVICES. 

AS CHAIRMAN OF THE OREGON HOUSE COMMITTEE ON STATE AND FEDERAL 
AFFAIRS. I'VE HAD THE OPPORTUNITY TO HEAR TESTIMONY AND SPEAK 
DIRECTLY V/ITH MANY OREGON VETERANS, ON THE ISSUE OF JUDICIAL 
REVIEW. FROM MARCH 21 ST TO APRIL 6TH, OREGON LEGISLATORS INVESTIGATED 
FOUR VA FACILITIES, AND FOUND THERE WAS A PROBLEM WITH BENEFIT 
CLAIMS AND APPEALS TAKING UP TO TEN YEARS, RESULTING IN HARDSHIP 
TO VETERANS AND THEIR FAMILIES, 

AFTER THIS INVESTIGATION, I TRULY BELIEVE THE ONLY JUST SOLUTION 
TO THIS PR0BLE14, IS PASSAGE OF LEGISLATION TO PROVIDE VETERANS 
ADMINISTRATION ADJUDICATION PROCEDURES AND JUDICIAL REVIEW. 

JUDICIAL REVIEW 

THE DEFINITION OF JUSTICE IS "THE PRINCIPLE OF RECTITUDE AND JUST 
DEALING OF MEN V/ITH EACH OTHER: AND THE CONFORl-ilTY TO IT". 
WEBSTERS COLLEGIATE DICTIONARY: 19/^1 

EACH DAY IN THE OREGON LEGISLATIVE SESSION, WE STATE 'HTH, "I 
PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA" 
AND END WITH FOUR WORDS "AND JUSTICE FOR ALL" NOT AND JUSTICE 
FOR A FEW, BUT FOR ALL. 

PAGE 1 



276 



DUE PROCESS OF LAW IS GUARANTEED TO EVERY AMERICAN, AND OUR 
VETERANS' WHO HAVE FOUGHT TO PROTECT OUR CONSTITIONAL RIGHTS 
ARE CERTAINLY NO LESS DESERVING OF, AND IN FACT, HAVE EARNED 
THEIR DUE PROCESS PROTECTIONS. 

THROUGHOUT THIS NATIONS HISTORY, COUNTLESS PATRIOTIC AMERICANS 
HAVE DEMONSTRATED GREAT COURAGE AND ENDURED HARDSHIP TO PRESERVE 
AND PROTECT ITS SECURITY, THE HUMAI^f COST ASSOCIATED WITH MAIN- 
TAINING THIS SECURITY HAS BEEN BORNE BY OUR VETERANS V/HO BRAVELY 
ACCEPTED THE CALL OF THEIR COUNTRY DURING PERIODS OF NATIONAL 
CRISIS. IT IS INCONCEIVABLE TO ME, THAT MEN AND WOMEN OF THIS 
NATION, WHO SPILLED THEIR BLOOD FOR HER, COULD BE DENIED THEIR 
CONSTITITUTIONAL RIGHTS OF TRIAL BY JURY. 

THE CENTURY-OLD FEE LIMTATION OF 310.00 SEVERELY LIMTS THE 
ABILITY OF A VETERAN TO OBTAIN EFFECTIVE LEGAL COUNSEL OF THEIR 
CHOICE AND THIS LACK OF CHOICE, CONSTITUTES A DENIAL OF DUE 
PROCESS OF LAW. 

MEl^BERS OF THE COI-MITTEE, THE UNITED STATES SEPERATION FROM 
GREAT-BRITAIN IN 1776, WAS "FOR DEPRIVING US, IN MAI^IY CASES, 
OF THE BENEFITS OF TRIAL BY JURY" V/E, INFACT, HAVE BEEN DEPRIVING 
OUR NATION VETERANS OF THIS SAME BENEFIT. I ASK EACH OF YOU 
TODAY, TO CORRECT THIS INJUSTICE. 

THANK YOU VERY I-IUCH FOR ALLOWING Iffi THE TII-IE TO EXPRESS MY 
THOUGHTS ON THIS IMPORTANT ISSUE. 



PAGE 2 



277 



^ 



Board of Vatarans Apt>-^is Washington, D.C. 20420 




Veterans 
Administration 

DEC 3 1979 



Mr. Arthur F. Croaln 

Poat Office Box 68 

Gilbert, Peaaaylvania 18331 



Dear Mr. Cronln: 

Tour notion "to reverse the errone ous determination" aade in your 
claim has been received. "~ 

It la noted that you are requesting adalnlstratlve relief under the 
provisions of 38 U.S.C. 210(c)(2). Since this Is a matter of adminis- 
trative review and not aubject to the Juriadlctlon of the Board of 
Veterans Appeala. I have referred your requeat to the Philadelphia 
Veterans Admlnlatratlon Center for appropriate action. The Adminin. 
trator has the sole authority to determine entitlement to benefits 
under 38 O.S.C. 210 . However, the question of equitable relief muat 
flrat be referred to the regional office for further development or 
othe r action deemed appropriate. 

I am pleased to direct your requeat to the proper authority and trust 
that you will be hearing from the Philadelphia Veterans Admlalstratlen 
Center regarding thla matter. 



Sincerely youra, 

sTi»nnr j. shdmam 

Chairman 



SPBCIAl »TE» y-^^ 

Tka aiMloaad rUtasMBt ttm. B.TJU Chalnum Sabiataa offlclallj^ aonflis* tba.t. 
while I kara pravloxisly bad 38 U.3^. | UOOU Board adjiidiaatloiu British tka 
•new and Mtwlal arldMaa" provM ara lavfuUy dafaotlea aad, ooBaaquantlj-. 
iavalld, I ksra aot 1a lagal fast aad truth arw bean acoorded ttaa paraoaal 
SMtlon 210 A<lalalatratlTa kaarlag Aran tba *il-1n1itrator, aor •▼» rMolrad 
tba off iolAl Soetloa 211(A) adJudiaatlAoal dsalaln whlah tkst would aMtall. 
It \M thla peraoaal atkHnljtrAUTa h^aiU^ la Wasblaetaa, D.C. irtilsh I 
jvatlf lably ■•«!:. 



278 



JLrttmr F* CroolA 

P. 0. Box 68 

OUlMari, P*. IB331-0068 

Uflt T iyi fc u HUL BO. nflb U^ 113 Ju3ar 13« 1903 

Rat TJl. Comiansfttloii 
ClAlM C9 950 0L3 

Mr. John Ward, S«rTlo« Qffle«r 

M>d/or XMt. S«rvio« Officer smIksmI to this Clate 

Tba inerioui Loglon 

Wl««*hiokoD It*. & Mutola St. 

P. 0. Box 8079 

Fhili>del{)hla, Pa. 19301 

GMitl«wnt 

Purauiiot to tho r«gul*ta>7 parorlalOQa of 30 C J'.i(. Swrtioni 3»103(>} •ad nor* qw- 
clflcalO^ 3.105(a), tbt VJl.** FMlMteljphla :l«giaaiO. Qfflo* wad/or Its offlclaUy 
rocpoQslbls federal flKplogree*, wuet. elthar no n adyraTlly acquleaoa to and naot 
mr la\(fully Justlfiabia and amjalnablw damaiida for l>!*iodiat«, appropariato, aud 
•qult^bls renodial ntdresa Id ra tba > ml awful adaJJiiatratlTa rajaotlon of sv ▼•lid 
Martina ccnpeneatlao dalna upon tba U.S. Gov«rj»ant| or elaa, aff actively and *>• 
pedltloualy forward liv l*teat and duly sxibnltted official V»i. 1-9 Substaotl've 
Appeal for equitable acMjiirtretlTa relief dlrecOjr to T.A.. M>>lnletrat<ir Walters 
la aooordaooe with tba laiiful statutory provisions and mandates of Seotlcaa 210 of 
Title 36 U.a.C. (Jaix. 1, 1959 CongreasloQal kat P.L. 85-657) In relatlco to «apedl- 
tlousJy reoelvli« h^ personal ackalnlstratlTe btarli^ la Washlagtoo D.C. aod reoeltt- 
iog hlo Bubsequent persooAl sad offlelal Sectioci 21lle} etUudlsatlaaal dec i s i o n s saA 
deterwlnatlons la oonoeiv thereto. 

Therefore, la oertalaly reosocable conslderatloa of tho* essential facts, and la re* 
allsatloa of the offlelal FoHsr at Attoornay which I duly supplied your service ergai^ 
Isatlon with relative to obtalaiag suoh Immediate and equitable relief and redrees 
for Bw, and la serious oonsldsretlco of the prepondex-aiioe of "new and nateilsl *vl> 
daoM and relevant probative facts" which I have also prese n ted you with in order t« 
not only clearly and oonoluslvely prove and validate mr own ocnbat veterans oaapea* 
satlos claljis, but also, of course, of the very distlaet and unquestlcoably and fav 
erabls bearing \i)iah aone of ay very uxilqua material evidence does also bars on tke 
ooHpensatloo claias of all otbHT slnilarly a^grlevad U.S. veteran eosurades. 

I Bust reluctantly, but iwoaesarlly, advise herein, that, X personally find it qusa* 
tlonably Incredulous that ths Anerloan Loglon has allowed so nuoh valuable tlse to 
elapse without even showlae ns the deserved courtesy o£ at least s\q>plylas ns with a 
written aad Indicative eorsiitMBt to suoh cause, nor to return s n a w e r lng p&ons call* 
In oonoeza thereto. 

IT, la fact, the Anerltfan LaflaB is off laially refuslne t^ written request for assi»« 
taoBe la pressli^ ay Jastlfled Imful dawinds for ths doa prooees and equal protest 
tlons of the st^Mtantlve Ibmb whleh ware prevlooaly and repeatedly denied to ae Igr 
the V»A., then please, 1 respectfully and aoUoltously request, do hove tha oorporato 
yafilousneea to elesrly, auDalBetlgrf sad sogMdltlously ladloste la wrltlns the bp«*1o 
fie reascna for suoh refusal, and X will lanedlately aad appropriately Instltuto othar 
ralative aetloos dsalgwd to flaaUy and legally aehlers the justice ao Ioqe denied 
to ae. 

liespeetfully youra, 

Attfaar F. Creada 
ooi Mr. Al Keller, Jr., Mat*l. Coaiaadar 
of Aaerleaa laglaa 
Kr. Joel Xellnr, Dftr. Konrse Cty. Sept. of Vetereaa Affairs 



279 



ikS^nHHTQir ^1,, 






IMPORTANT: Read inUiuctiont on te>«M 
•ide beion filliag is fofn. Coapletc ■!! 
iteat fully. SeiHl thu (ppeal lo Uw VA ol- 
fict which Bade fre deciiion bein£ appealed 



LAST HAME - rmST NAMC • HIDOLC NAME Of VCTCHAM (Trp* Or prJnf) 

CROMm, ARTUnRF. 



VCTtKANS ADMINISTIATION 

APPEAL 

TO inOM. H.N. UAITERS 

vaaaasn auBtunimt usea 



» INSuMAnCC PIUC NO 0«t LOAM MO 



4 IF A^rtftL It •KING HADC BV A ^CMtON OTHER TMAM VCTCHAN INOlCATC NELATiOmSmip' 

D»lOO« D CHILD DmOTHKH DrATHCW D f^.fy) 

1 NAMC or CLAIMANT fti «(k*r 4k«n ••(•im? 



1 CLAIM FILE NO f'ficJwda pr«fi«> 

Bo. C9 950 QI43 



Idninlstratlv* refusao. to „ 

t.alr«L MffA nn 



vt srriCE whiCm 



» AOP«tM OF CI^IMAMT (l»i»a.r A «l,..|, cJ i,, {m. ^ aP goJ.) 

p. 0. Bofz 68 

Ollbort, P«. 18331-0068 

•iABr"Bi?fTr5iriciM5TrFsrMTB7CRrri<«3 



Philadelphia RegloB»l Office of U.S. Veterans A<hdii. 



(epRESENTATiON ^ sm P.,. 6 of i«i™ri,o,. « i.«™e .de Mt. Ward - iiMtiariJtUi Legiosi 



NCARINC 



Sm Pat 7 a( iMInic- 
liOB. on reverse side. 



B«»Dj 



#• tF ve». S^CClPV PLACE 
LJ "li-O OFnCK ^^ 



JL 



■AtHiMGTON. D.C. 



NOTE: A pamoaal hMnng is sol MCMury sor ■> • deciBioci msi 



10 I TAKE ISSUE WITH THE OEClSlOH OTED ABOVE AND HEREBY PE 



ng IS BOf »ece«Aary sor is • deciBioci Baik Af i|ic tiMc of th« be 
TITIQW TMEyCTfjfcfUHfifjflajgmpyoB RELIEF 



bcsna^ 



FORTH BELO« fSlal. m ,p^l,c d^il Ik. Un.l„. .««l.. on Mpp^l ^d ,0, r.Jon. to b.l,.^^~,^~uhe~^~„]„"„.^,2,Tc^T/J^L^ 
Folltmt cmtlullr l*« mrrucrroia m mftnpli 3 on It. r.rv.. .iri..) 

The Pklladelphl* reflonal office haa ha4 "mew and material eridence" and a va 
:!/?P?*^ '*''^ "^^^ ^ aulmitted 1* October of 1982 that ooaeluaiTely prorea » 
f^i^J,"^*^ **^ "^ wrtlJM ccvpenaatlo elal> upon the U.S. gorerMnt «a« 
unlawfully rejected aa a dlxwrt and detrimental result of the olear ujMiatakable 
and prejudicial errora which were coaeiltted fey tbe goremwnt aud/oa- ita feder«l 
•■ployeea. In re ^ pereonal wartla. e<Mbat aerv^ea for thli nation aad the cor- 
reot lawful date of i^r official order to that actlT. Naval serrice. let they have 
I^n^.t^vr"^!!!? f "!f*l deeljlon on either to date, nor to take mpp^l^ 
??^r!2 fiL""?^ !**^ "^•^ ^ ^«*^ provlsloni of Section 3^(^)^ 
38 Code of Federal Regulationa et al. SpeoificaUy atated, through eCTeTiy pww 
aonal 0Qrt>at aarricea were denied and I waa coneequently depriredof the due m«- 
ceaa and equal ppoteotlon tf Section 351*(A)&(B) et al 5 thTjaimaiy 1. 1^ ^ 
greaalonal Act P.L. 85-857, right- which are non-di8erladi.atiTeir2c.Jdid to^ 
other jeterw. at my apeelfU cla... It la thla CoagrecBlonal Art under whose 
proTlslon. this clal. must be properly adjudia^ed, all retrospectlTc law. and 

rill LjfStJSnnicrL^^'r^A^^"''^ •"' prevall^T^ase see sISion 
If^A ^ '^^ ' . '^^ ^*^ ^*^ 85-857). HespectfuDy notlijg that the lon^iritT 
of this grees and contlmli* Injustice datea baek tothe Imltlalf illnl Si 
Bljnllar unanswered ccaipensatioa clalji in 19146. 1 hereby giake a speei3 nlea for 

^"^"^^if S I-'-': ^"^ 210(B)4(C)(l)t(27A^L t^'SI^LSL 
^^« fn^ f^^l^ ^"^ *°''"*' pursuaat to the statutory prorlsiooT^^ 

that I have never erer been prwriousOy provided with the official three.«an t»r«nn_ 
al hearing which Is requir.* by law 1« concein to the non^Sv^rltrS^l^T^ 

Mpertence, I rMpectfuUy request that I be provided with an expediUouTiiMonal 
»c^ledg»ent fr« the Adlmlstrtor confix«Sg his receipt oJ^l^Si^lS^ 



June 6, 1983 



VA rom 

AUG 



am 1 o 

laai ' ' 



MW.<* mA:ina»ml ^..i.. |/ mcmmtt) 



l> aiCMATUMI OF CL«IMAI<T |d> 



»TU« OP CLAIMANT rlVf9rMMl.fi*.> 



UlKMftCOCS VA FOM* 1^. iUN tVT» 
IMICH MILL NOT BC USED. 



CERTIFIED MAIL No. P281i U85 275 



280 




n 



m- 



* WASHINGTON OFFICE ♦ 1608 'K' STREET, N.W. * WASHINGTON. DC. 20006 * 

(202)861-2700 * 



For God and Country 

September 6, 1983 



Honorable G. V. "Sonny" Montgomery, Chairman 
Committee on Veterans Affairs 
U.S. House of Representatives 
335 Cannon House Office Building 
Washington, D.C. 20515 

Dear Chairman Montgomery: 

This letter is in response to your communication of August 16, 1983 in which 
responses to questions arising out of the July 21, 1983 hearing on judicial review 
are sought. Let me apologize at the outset for failing to supply responses by 
August 30 as requested, but as you know attendance at our National Convention in 
Seattle made compliance with that deadline impossible. 

Moreover, it should be clear that The American Legion opposes the concept of 
judicial review at the present time. The Legion has reasserted its opposition in 
resolutions adopted by National Convention delegates over the last several years 
including this year and Legion spokesmen have consistently made presentations at 
numerous Congressional hearings in accordance with these judicial review resolu- 
tions. 

That notwithstanding, the National Executive Committee (NEC) of The American 
Legion has recently formed a Veterans Planning and Coordinating Committee to study 
issues of critical importance to veterans and is charged with making recommenda- 
tions to the NEC after having considered these issues. This Conmittee has been 
divided into smaller subcommittees, one of which as you know is the Subcommittee 
on Judicial Review. The reason for establishing a separate judicial review sub- 
comnittee stems from serious differences of opinion within the organization on 
the merits of judicial review and because many Legion members feel that Legion 
arguments against judicial review have been adequately addressed in legislation, 
S. 636, passed by the Senate on June 15 of this year. 

I offer this information so that, by way of background, you may fully under- 
stand the context in which responses to your July 21 hearing questions have been 
assembled. In that regard, the following responses bear the same assumptions im- 
plied in each of your eleven questions. Specifically, what problems will obtain 
if judicial review legislation in some form passes the Congress and is enacted 
into law? Since S. 636— bearing the title H.R. 2936--is the only judicial review 
legislation having passed either body, it is appropriate to make occasional ref- 
erence to provisions of that measure. 

1. Should there be concern over possible costs (attorneys fees, court 
costs, expert testimony, etc) to the veteran seeking judicial re- 
view of his claim, especially since he has no way of knowing whether 
he will prevail in the end? 



281 



Honorable G. V. Montgomery 
September 6, 1983 
Page 2 



The obvious short answer to this question is yes-there should be concern over 
possible costs to the veteran especially if he or she loses a bid in court. At 
issue though is a more important question of what constitutes an excessive or un- 
fair cost to the veteran should he choose to press a case in court and lose. 
Similarly, assuming veterans would enjoy a right to judicial review if legislation 
were passed, what constitutes reasonable remuneration for the attorney representing 
the veteran in court? 

The Senate passed legislation has sought to balance these concerns by estab- 
lishing a maximum fee of either 25 percent of retroactive benefits if agreed upon 
by the veteran and his attorney or $500 in the case of a veteran who prevailed in 
court. Veterans losing in court would be obligated by a reviewing court to pay a 
maximum of $750. In no case could the attorney receive more than the currently 
specified $10 before the BVA rendered a final decision. 

While there may be legitimate disagreement on what a fair cost to the veteran 
might be, there can be no mistake that the attorney representing a veteran deserves 
a fair reward for services rendered. Should veterans be allowed to press claims be- 
fore the courts, veterans organizations claims representatives would be unable to 
assist the veteran without themselves being officers of the court. Someone would 
have to represent the veteran in court, and that someone would have to be an 
attorney. 

If Congress deems judicial review appropriate, court costs and other costs 
associated with expert testimony should present little if any impediment. The 
amount of court costs is marginal ranging between $15 and $30. Expert testimony 
costs would be non-existent since judicial review would only permit federal review of 
the record. Only if trials of fact were at issue would expert testimony and their 
associated costs be brought into play. 

2. Should the appellate court be allowed to hear the case de novo or 
should the review be limited to the record established during the 
administrative process? 

Cases brought to federal court should not be heard de novo. More importantly, 
they would not be heard de novo if judicial review of BVA decisions were handled 
by the courts similarly to those of other categories of federal benefit appellants. 
Under these circumstances only the established record is reviewed by the court and 
even though that review might yield decisions of fact contrary to those rendered 
by BVA, no rehearing of the entire case is undertaken. Cases of this nature in- 
volving other federal beneficiaries are generally handled by the courts with great 
dispatch precisely because court review is limited to the established record of 
the case. 

With this in mind, it should also be remembered that any factual judgments 
made by the courts contrary to BVA would have little if any adverse effect on a 
veteran's case. Since the veteran having won at the BVA would have no reason to 
use a federal court, factual judgments by a federal court contrary to those of 
the BVA would likely gravitate in favor of the veteran. 

3. Would you be in favor of a proposal that would eliminate the Board 
of Veterans Appeals and allow judicial review of Regional Office 
decisions? 



282 



Honorable G. V. Montgomery 
September 6, 1983 
Page 3 



It has been stated in some quarters that should Congress act favorably on 
judicial review legislation, probably the BVA would be eliminated as unneces- 
sary. This reasoning is generally supported by views that with court review vet- 
erans should be afforded a fast track opportunity to get cases into court directly 
from Regional Offices and that with court review the BVA can safely be eliminated 
as a cumbersome layer of adjudicative machinery. 

On close examination each of these views lack merit sufficient to justify 
eliminating BVA and The American Legion is prepared to place the full strength 
of its resources in opposition to such a proposal regardless of Congressional 
deliberations on the issue of judicial review. Under current law, the BVA serves 
several important functions apart from the role it plays as the last adjudicative 
step in the VA claims process. 

At least one of these functions, which would remain whether or not judicial 
review were adopted, serves to add uniformity to VA claims decisions made at the 
Regional Office level. In that regard, it is well known that some Regional 
Offices render decisions differently in similar cases than others and even when 
similar standards are employed by adjudicators, mistakes are often made as a 
result of the volume of cases handled. Frequently veterans organization claims 
representatives provide valuable assistance at the Regional Office level in 
correcting many of these errors. However, when a case reaches BVA, for example, 
which should have been awarded in favor of the veteran earlier, it is entirely 
appropriate for the case to be resolved at BVA without resort to federal courts 
even if that option were available in the event that BVA decided against the 
veteran. 

Apart from the wisdom of retaining the BVA whether or not judicial review is 
adopted, those who would suggest otherwise seem convinced that BVA elimination 
would naturally follow if judicial review were enacted. This is particularly un- 
fortunate since no such action is envisioned even by the Senate passed judicial 
review legislation. That measure, in fact, assumes the BVA to be so important 
that a provision within it would increase the size of the BVA from 50 to 65 mem- 
bers. Should the House move forward on some form of judicial review measure as 
the Senate has done, there seems no immediately clear good reason to accompany 
that movement with a simultaneous effort to eliminate BVA. 

4. It is estimated that the median time from filing to disposition of 
cases in federal district courts is approximately 14 months. Should 
this time requirement be a consideration in determining whether or 
not judicial review is in the best interest of the veteran? 

The subject of clogged courts with the attendant delays in judicial decision- 
making is an issue which looms large on the American political landscape and cer- 
tainly deserves consideration in any discussion of veteran access to federal courts. 
For many veterans their dependents or widows, the time it takes under current law 
for BVA to render a decision on benefits is just as important as the final outcome. 
Were these cases to await decision over an even longer period of time would un- 
doubtedly cause significant economic hardship for many. 

For this additional reason, the BVA should be retained even if judicial review 
is permitted. Should BVA be eliminated and cases made eligible for federal court 



283 



Honorable G. V. Montgomery 
September 6, 1983 
Page 4 



review which would otherwise have been decided at the BVA, the length of time it 
would take a court to render final judgement would likely be extended well beyond 
the estimated 14 month period it now takes the courts to dispose of cases. 

On the other hand, if judicial review were adopted while retaining the BVA 
the resulting federal court case load expansion would be minimized. For those 
veterans who would go to court after having exhausted the VA adjudications pro- 
cess without satisfaction, the length of time a case pended in federal court-- 
while inconvenient--would be less significant than the prospect of winning the 
case no matter how long it took. 

5. Should there be concern with the cost to the taxpayer which may 
result from enactment of a judicial review statute? 

Without knowing what taxpayer costs might be if judicial review were enacted, 
it is difficult to comment on the degree of concern which ought to accompany con- 
sideration of this issue. Those who favor judicial review, however, will not 
likely be disuaded from their position regardless of taxpayer costs. Arguably, 
the cost of justice in a democratic society ought to be subordinated to a rela- 
tively insignificant consideration in this matter. In that regard, it would prob- 
ably be politically risky to oppose judicial review on grounds of taxpayer cost. 
For The American Legion to take the view that judicial review should be defeated 
by pointing to excessive costs would contradict our oft repeated view that veter- 
ans needs be accommodated whatever the cost. 

6. Prior to enactment of judicial review, would it be worthwhile to 
conduct a study of the existing VA adjudication process in an ef- 
fort to see how it might be improved? 

As explained earlier in response to question three. Regional Office adjudi- 
cations vary from place to place around the country. This is perhaps a natural 
outgrowth from the volume of cases adjudicated by virtually thousands of differ- 
ent individuals. The manuals, guides and circulars used by adjudicators do help 
in making decisions as unifonn as possible. As long as different standards are 
inevitably applied in different Regional Offices, however, the BVA must be kept in 
place as the final VA arbiter. 

Were the BVA to be eliminated in conjunction with adoption of judicial review, 
a study of VA adjudications procedures would become a must. On the other hand, if 
the BVA were retained along with adoption of judicial review, regular Congressional 
oversight of adjudications would probably be sufficient. 

7. How do you respond to the claim that granting judicial review would 
create an unacceptable burden on the already overloaded federal court 
system? 

As explained in question four, already overloaded federal courts could present 
veterans with serious problems of delay especially if Regional Office cases were 
eligible for court review in the absence of the BVA. For that reason, if judi- 
cial review is to be favorably considered by the House Veterans Affairs Committee, 



284 



Honorable G. V. Montgomery 
September 6, 1983 
Page 5 



the Committee would be well advised to incorporate language in the legislation 
attempting to moderate the court delay problem. This might be done by allowing 
veterans in federal court the advantages provided under the Magistrates Act, 28 
U;-S.C. 636. In this way magistrates could allevidte the court overload burden by 
presiding over veteran cases in lieu of federal judges. 

8. If judicial review by federal courts is allowed, at which level 
(District Court or Court of Appeals) should the review process 
begin? 

During the hearing on July 21 there was a rather lengthy exchange of views on 
the subject of what level veterans ought to enter the federal courts. Surprisingly, 
there seemed little agreement among veterans organization witnesses who favored 
judicial review. If allowed to use the federal courts, uniformity with other fed- 
eral benefit appellants would likely apply to veterans under the Administrative 
Procedures Act, 5 U.S.C 553. If that were the case veterans would bring their cases 
first before the federal District Court. 

9. What role should attorneys play in the veteran's pursuit of his claim, 
i.e., at what stage of the process should the veteran be represented 
by an attorney? 

If judicial review were passed by the House, it would be wise to incorporate 
language into the legislation similar in intent to that included in the Senate 
passed legislation where attorneys are concerned. The Senate provisions restrict 
lawyers fees to $10 at every stage in the VA adjudicative process until BVA 
renders a final decision. This would most likely deter lawyers from veteran cases 
until the veteran had exhausted the VA claims machinery and opted for review by 
a federal court. 

The intent of this restriction makes good sense, since veterans organization 
claims representatives, through familiarity with VA procedures, are better equipped 
to prepare and present veterans claims in the VA than most lawyers. Also, this 
restriction would serve to continue the current practice of allowing veterans to 
have their cases presented for them throughout the VA adjudications process at no 
cost whatever even if judicial review is adopted. 

10. How should an attorney representing a veteran be compensated for his 
work? 

As discussed in questions one and nine, if lawyers are to bring cases before 
federal courts for veterans they ought to be entitled to fair payment for their 
services. Since the Legion does not favor judicial review at the present time, 
we have no suggestion to offer regarding what a fair fee might be. We do take the 
view, however, that lawyers should be prevented from exploiting veterans. 

Should the Committee act favorably on judicial review legislation, it might well 
consider a more conservative fee formula than that adopted in the Senate legisla- 
tion. For example, a House bill might simply bar a lawyer from any opportunity to 
reap a percentage of past due benefits if a claim for such benefits were won in 
federal court. The Senate measure would allow up to 25 percent for the lawyers if 



285 



Honorable G. V. Montgomery 
September 6, 1983 
Page 6 



the veteran had agreed to that formula with the attorney prior to court review of 
the case. 

11. Assuming the veteran is given the option of hiring an attorney, 
what effect will this have on the representatation currently pro- 
vided by the veterans organizations? 

Were judicial review adopted in a form which allowed attorneys to collect gen- 
erous fees from veterans at every stage of the adjudications process up through and 
including federal court review, there would undoubtedly be some adverse effects on 
the representation currently provided veteran claimants by veterans organizations. 
It is unclear what the extent of this effect might be, but the most significant 
effects would be borne by the veteran who would have to pay for services provided 
at no cost at the present time. Once again, if judicial review is considered fav- 
orably by the committee, language similar to that in the Senate measure discour- 
aging lawyers from VA claims until the BVA makes final decisions is advisable. 

Mr. Chairman, hopefully this rather lengthy letter addresses your questions 
satisfactorily. As stated at the outset, the responses are offered in the con- 
structive context of what problems might lie ahead for veterans if judicial re- 
view is adopted. Should these responses seem peculiar coming from an organiza- 
tion currently opposed to judicial review, please recognize that the scope of 
these responses has been limited by the questions asked. 

Sincerely, 




Paul S. Egan, Deputy^Di rector 
National Legislative Commission 



i'fL-R'^n n fiQ_ 



286 



AMERICAN VETERANS COMMITTEE 

"CITIZENS FIRST, VETERANS SECOND" 



NATIONAL OFFICE • 1346 CONNECTICUT AVENUE, N.W., SUITE 930, WASHINGTON, D.C. 20036 • 202-293-4890 




Nalionai Criaicmao 

NstioiuJ Vtce Cnairm«n 
June A Willeru 

f r«nJ> E G Werl 
Nttionti SecreUrv 



i/^i'im'i 



Lott^ai Nachman 

Special Coun««l 
Andrew E Rice 

Finance & Budgei Cnairman 
Sonny LeGlaifs 

Nal'onal VAVS Reptesemative 
itrMi Rolkin 

Oepu'i VAVS ReprcMniaiiv* 
Conat S'--ke» 

MemMtship Commlllea Ctiaiiman 
RuOOlpn Sobernhetm 

Leg I s isl ITS Chaliman 
Love) I Mem I) 

Veierenj Semca Rapresenlal'ire 
ifvinc Bmai 

Veterans Sef> ice on icer 

FORMER NATIONAL CHAIRMEN 

Charles G BoKe 
ReymonO 8f»muCci 
Samuel Byer 
Of Euo*"* £ Byrd 
Curtl» Chwnpalgne. J' 
Dr Paul P COMe 
Aiinu' F'eeiTian 

Murray G'ose 

Gilbert Hanison 
M-ckey Levlne 
Bill Mauldin 
Crxt Palerson 
F J. Pepper. M D 
Saul Ho MR 
John Stillman 
Michael Siraighi 

NATIONAL BOARD 

Louii G Aieianoe' 
Euflene Ansi 
BeTurd Beder 
David A Cole 
J AmoM Feldman 
Menin Frost 
Manuel Gonialei 
Dock Gordon 
GeraJd Grossman 
Tlbo< Heisler 
AnWtll L Milson 
Edward Kranwr 
Sonny LeGlai'e 

Frank Longo 
Loihar Nactiman 
RoOen Nalhan 

Israel flotkm 
Martiri Sand la' 
Canal Sioket 

NATIONAL ADVISORY COUNCIL 

Judge Her«ert i. Win, Chairman 
Mom* B AJ>ram 

JuOge Leon Becker 

Cong Jonathan Bingham 

Hon William McC Blair. Jr 

Cong Richard Sol ling 

Arthur Buck 

Clark M ElChfllbergei 

Or Elmer Ems 

Irving M Enoel 

Dun Ruueli N Fairbanks 

Judge John D Faunneroy 

Hon AM Foflas 

Hon Orville Freeman 
RaDOi Roland Gmaisohn 
Sensiof Jacob Javiis 
Pioi Stanley A Kaplan 
Robert A LOW 
Dr Harry A. Maimion 
Judge Joseph Mazur 
Cong Abner Mikve 



August Zk, 1983 

Congressman G. V. Montgosiery 

Ckalraan 

Ccomittee on Veteraas' Affairs 

33$ Ctumon House Office Building 

WashlngtOBj D.C. 20^1$ 

Dear Congressman MMitgemery: 

Ihaak you for your letter of August I6, I983, asking several questions 
as a follow-vqc) to your oversight hearings of July 21 and 26, 1983j on the 
question of Judicial review of veterans' clAims. 

You will find enclosed a restatement of the questions for ease of refer- 
ence, together with «y answers to the questions. Yoa will, of couxse, 
understand that I am responding without having had tl»e to conduct a poll 
of my orgaalsatlon on each of these questions. I believe that I am gener- 
ally In tune with the views of my organization, and that the answers 
generally represent their thinking, but if you decide to quote any part 
of the questions and answers, please attribute them to me as Rational 
Secretary or as Chairman of the Veterans and Armed Forces Affairs Com- 
mission of the Americas Veteraas Ccomittee, and not to the organization 
as such. 

Thank you for the opportunity to respoad. 



/] 



fj»S»r\i 



Cong Richard Oltmgei 
Hon Eivlicoll Peabody 
Sen Claiborne Pall 
Joseph L. Rauh. Jr 
Cof>g Henry Reuss 
Cong Peter W Rodino, Jr 
Hon Franklin Roosevell. J' 
Hon James Rooamii 
Cong James A Scheuer 
Rudolf Sobemhe<m 
Hon N011 Siaebler 
Tel lord Taylor 
Cor>g Frank Thompaon, J( 
Ju<>^ William S TrKimpson 
Hon Frankim H Williams 
Hon G Uennan Williams 
San Harrison A Wllliama 
Hon Ralph Yarnwough 



/toank K. df. Well ^ 
/(Satlonal Secretary 



Aoam Tamoiinsky 
Cong Sidney R VaT< 
Hon Siephen H Vouns 



To achieve a more democratic and prosperous America and a more stable World 



287 



AMERICAN VETERANS COMMITTEE 

"CITIZENS FIRST, VETERANS SECOND" 



NATIONAL OFFICE • 134« CONNECTICUT AVENUE, N.W., SUITE 930, WASHINGTON, D.C. 20036 • 202-293-4890 




Aiiriui J B«m*l«in 

NATioriAi VIC6 C^AJnnAn 

Pr«nh e G Weil 
NaliOiUI S«cr«l*nr 

Mai Bimaaum 

Walii>nal Trusurai 

Marrin N S*naif 



Loiriar Nachman 

S0«cl«l Coun»«l 
Andrew E Ric* 

Finance & Buagai Chairman 
Sonny LeGi«n» 

Naiional VAVS Rap'oiAnialiva 
■aiaai Roiii>n 

Oepu<v VAVS RaceMntaliTV 
Const SloliM 

M«iTiMrsmp Co'«'"i1<aa Cnairman 
HuOoipn Sobsfnneim 

Logisiaii'« cnainnan 



Velar 



s Service Repre: 



FORMER NATIONAL CHAIRMEN 

Cfunei G Bolle 
Raymond Biamucci 
SafTiu«i Byei 
Or Eugene 6 Bv'O 
Curiis CnwTicaiane. Jr 
Or Paul P Coo«e 
Anhgr Freeman 
Murray GrOM 
Gilbert Marriion 
Mieiiey Lei in* 
81 i> MauiO'r^ 
C^a^ Paierson 
Fj Popper. MO 
Saul Rosen 
Jo^n Smiman 
M>c^ael Siraigm 

NATIONAL BOARD 

LOuis G A I Blander 
Eugene Atist 
eemard Seder 
David A Cole 
J Arnold F eld man 
Manm Fro9T 
Manuel Goruale^ 
Dock Gonlon 
Gerald Grossman 
Tibor Hotsloi 
Annur L Mii»on 
Edward Krv>e< 
Sonny LeGlaire 
Lawrence Lenry 
Frank Lortgo 
LotT\ar Nacnmari 
fiooert Nairian 



Skould there be concern over possible costs to the veteran seek- 
ing Judicial review...? 

There should not; only the veteran whose claim has been finally 
denied by the Board of Veterans Appeals (EVA) will be considering 
going to court, and that veteran hAs already been denied. Purther- 
more, the proposal to abolish the $10 limit on attorneys* fees 
is couched in terns of a proportion of the paat-due benefits ob- 
tained, l^is seems to indicate that if the veteran fails to pre- 
vail in court, he will not be charged. 

Should the appellate cou3rt be allowed to heeo* the case de novo 
or should the review be limited to the record established during 
the administrative process? 

The form of the question already suggests the answer. An appeal, 
by definition j Is scmethlng other than a de novo hearing. Ideal- 
ly the court conductlmg the proceedings (la the Senate bill, this 
is the U. S- District Coxirt) should have the power to conduct a 
de novo hearing ( or to appoint a master or magistrate to conduct 
a de novo hearing), but that power should be used very sparingly, 
and only in cases where there Is an allegation that there are 
defects in the manner the administrative record was established; 
even when there are such allegations, the use of the de novo 
hearing power should be limited to hearing the evidence which. It 
is alleged, was Improperly excluded, and not to hear repetition 
of the matters already in the administrative record. 



NATIONAL ADVISORY COUNCIL 

Judge Metjeri l Will, C^a■rman 



Judge Leon Becher 



Cong Hicnaid Boiling 

ArlHur Buch 

Clarti U Eicneiberger 

Or Elmer EHii 

Innng M Engel 

Dean Rusieii N FairtMnk* 

Judge Jor^n o Fauniteroy 

JuOge Arnold L Fein 

Mon ADe Fori as 

Mon Ormilo Freeman 
RaM>i Roland G<tlel»ohn 
Senaior Jacob Javiis 
Prof Stanley A fUplan 

D' Harry A. Marmion 
Judge Josepn Muur 
Cor\g. Abner Mikia 
Cong James Kara 
Fredencli O Neal 
Cong. Ricnard Oltinger 
Mijn EnOicoM Peaftodr 
Sen Claiborne Pell 

Josepn L Raun. jt 

Cong Henry Reuss 
Cong Peler W Ro(}ino. jr 
Hon Praniiin Rooteveii, jt 
Hon James Roosevelt 
Cong Jamai A. Scneuer 
Rudoil Sobemhe.m 
Hon Nell StaeClef 
TellOrO Taylor 
Cong. FrarMi Ttiompwin Jr 
Judge William S THompson 
Mon Franhlin H W'lliams 
Hon G Mennen Williams 
Sen Harrison A WilliAma 
Hon. Raipn rarborough 
Adam Vamounsky 
0>r>g Sidney R Yalat 
Hon. Siepnen M Young 



Would y.tt be in favor of a proposal that would ellialnate the 
BVTA and allov Judicial review tf Regional Office decisions^ 

No. This is bringing the Judiciary too far Into the agency mach- 
inery and will lapose both too great a burden on the courts and 
too great an expense on veterans vho voitld prevail under the pre- 
sent set-up. 

It Is estimated that the median tine from filing to disposition 
of cases In federal district courts Is about Ik months .... 

In part of my testimony , I suggested that VA cases be made review- 
able by the United States Claims Court, with appeal to the United 
States Court of Appeals for the Federal Circuit. The United States 
Claims Court (the successor to the trial stage of the former Court 
of Claims) bolda hearings throughout the country by means of trial 
Jwlges who ride circuit. BVA cases are not at all dissimilar to 
the cases Involving military personnel and civilian employees 
which the US Claims Court now bears — so that its Judges would 



To achieve o more democratic and prosperous Americo and a more stable World 



288 



AMERICAN VETERANS COMMITTEE 

"CITIZENS FIRST, VETERANS SECOND" 



NATIONAL OFFICE • 1346 CONNECTICUT AVENUE, N.W., SUITE 930, WASHINGTON, D.C. 20036 • 202-293-4890 




Nilional V«ce CluitmAn 
June A Wlll«iu 

CaACullve DIfKtOr 
Frank E Q Wall 

Nalional S«C'elary 

Na1lon«l T'MSurBi 
Mvtm H Sandlar 

NallOnA) Ai)m<niilr«l)v* Olr»clD> 

LolfW N»cfim«n 

Special Counsai 

Andre* E RIC« 

Flnanco & 6uOo«< Cftair>n«n 
Sonny LaOlaIra 

Nalionai VAVS Rop'SMnUllvB 

llrMi Rotkln 

Deputy VAVS Repraaafltaliva 

Cortez SIMet 

Mambarship Commillaa Chaiiman 
Rudolph SoMmltalm 

Lagla'alive Ctiairman 
KveiT Menlti 

Vo la rani Samtce Hep'esaniai'v* 
infing BakaJ 

Vaiarana Service 01 1 leaf 

FORMER NATIONAL CHAIRMEN 

OtwtaaG Boite 
Raymond Bftrtvcel 
Samuel By«( 
CX Eugene E. Byrd 
Cunia CriampaiQne. Ji 
Dt Paul P. Cooka 
AniHir Freeman 
Murray Grosa 
Gllbart Herrlson 
Mickey Levln« 
Bill MauUW 
Chal Palanon 
F J Peppw. M.O. 
Saul Roaen 
John SilKman 
Michael Siraiglx 

NATIONAL BOARD 

LoulB G. AleianiM< 
Euflene *"*' 
Bemaid Seder 
Oa*ld A Cole 
J. Arnold Feidman 
Man In Ffoti 
Manuel Gonial ei 
Dock Gordon 
Gerald Groasman 
TIbOr Httltlei 
Arthur L Hilton 
Edward Kramer 
Sonny LeGUire 
Lawrence Lewy 
Frank Lor>flo 
Lolhar Nechnun 
Roben Nathan 
Ben Nauteld 
larael Roikin 
Manin Sandler 
Carter Slotcei 

NATIONAL ADVISORY COUNCIL 

William L Ball. Jr 
Judge Leon Becker 

Hon W^illtam McC fiiatr. Jr 
Cong Richard Boiling 
Arlhu' Suck 
Clark M. Eicheloerger 
Or Elmer Ellll 



Judge John FaunMeroy 
Judge Arnold l. Fein 
Hon Abe Fonas 
Donald M Fruer 
Hon Orvilla Freemen 
RoMii Roland Glilaltonn 

Prol Stanley A Kaplan 
Robert A Low 
Dt Marry A Marmion 
Judge Joaeph Maiur 
Cong Abner Mikva 
Cong James OHars 
Frederick OMoal 
Cong Richard Oltlnger 
Hon Endicott Paabody 
Sen Claiborne Pell 
Joseph L Rauh, Jr 
Cong Henry ReuB* 
Cong Peter W RoOIno, Jr 
Hon Franklin D Roosevelt, J 
Hon James Roo»e»ei( 

Cong James A Scheuer 

Rudoll Sober nneim 

Hon Nell Steebier 

TeKord Taylor 

Cong Frank Thompson, Jr 

Judge William S Thompson 

Hon Ralph yerborough 
Adam Yamolinaky 
Cong Sidney R Vatea 
Hon Stephen M Young 



net require long periods of famlliarlEatlon. It wvold. be a con- 
ctratlvely simple matter, if adding the VA review Jorlsdlctlon to 
that court caused delays in litigation there, to add a few trial 
Judges— this instrument is flexible enough to be matched to the 
need — . Jurisdiction for reviev in the United States District 
Courta could also be proriUd, but if the route via the Claims 
Court vere significantly more expeditious, most of the applications 
for reriew vould be filed in the Claims Court. 

5. Q Should there be concern for the costs to the teucpayert 
A I do not believe that this cost vould be significant. 

6. Q Prior to enactment of Judicial review, would it be worthwhile to 

conduct a study of the existing TA adjudication process in an 
effort to see how it might be Improved? 

A Such a study would be worthwhile, but should not be used to delay 
enactment of Judicial review. The absence of Judicial review la a 
matter of principle, and not Just a consequence of less-than-cfptlanim 
functioning of the pi^sent VA adjudication process. If the imp- 
lementation of such a study results in improvements of theWA 
adjudication process, fewer veterans might resort to Judicial 
review, and this would be all to the good; it staeuld not, however, 
be viewed as an alternative. 

7. Q How do we respond to the claim that granting Judicial review would 

create an unacceptable burden on the federal ceurt system? 

A Testimony given by other members of the pemel on which I testified 
shewed their estimate that the number of actual Judicial review 
cases would be relatively small. It vould seen to follow that the 
burden would not be unacceptable. Furthermore, Ibf the Judicial 
system is so overloaded that it could not assume this burden, it 
needs general Improvement and beefing up aiqrway. 

Q If Judicial review by federal courts is allowed, at which level 
should the review process begin? 

A It should begin at the equivalent eif District Court level, with 
submission to the United States Claims Ceurt the preferred mode. 
Appeals should then go tl» the Circuit Courts of Appeal, la the 
case of cases begun in the District Courts, the appeal should be 
to the appropriate Circuit, and la the case of cases begum in the 
United States Claims Court, the appeals should lie to the United 
States Court of Appeals for the federal Circuit. Hopefully, the 
speed with which cases are disposed of In the Claims Court will 
be sufficiently greater thak those going to District Court, so 



.;■'( 



To achieve a more democrolic end prosperous America and a more stable World 



289 



AMERICAN VETERANS COMMITTEE 

"CITIZENS FIRST. VHERANS SECOND" 



NATIONAL OFFICE • 1346 CONNECTICUT AVENUE, N.W., SUITE 930, WASHINGTON, D.C. 20036 • 202-293-4890 




National Cnai'man 

NaKonal V>C« Chairman 
Jun« A Mlila'u 

Eiaculin DiiaclM 
FranN E G Wall 

Kaiional Sac'stary 



that aoet veterans will choose the fozmer route rather than the 
latter. 

What role should attorneys play In the veterans pursuit of his 
claioi? 



Spaciai Counsai 
Andrs* E Rtca 

Financa 1 Butlgal Cnairman 
Sonn^ LaGlalrs 

Manorial VAVS natfasenlaliva 

Daputv VAVS napraMnlaI»va 
Coiiai Stoiias 

MembarBhlp Commit! 
Rudoipn SobamKaim 
Lagialaliva Crialnnan 



9 Safvica Rap'asanialiyi 

Irving BaKal 
veleians Satvica Ollicar 

FORMER NATIONAL CHAIRMEN 

Criaiias G Bone 

Baymor**) B'amucci 
Samuel Sya' 
Dr Eusana E, Byrd 
Curtis Champalgr**. J' 
Dr. Paul f Cooka 
Arthur Fraaman 
Hurray Gross 
Gllbart Hamson 
MIckay Lavina 
Bill MauKlir> 
Chat Pal arson 
F J Pappm, M D 
Saul Rosan 
John SiiilrT\an 
Micnaai 5'raigni 

NATIONAL BOARD 

L»ul» G Alanandsi 
Eugsna Atlst 
Bernva BMar 
David A. Cola 
J Ainold FelOman 
Martin Frost 
Manuel Gonial ei 
Dock Gortlon 
GaraU) Grossman 
Tiboc HelBlar 
Arthur L Mllaon 
Edward Kramai 
Sonny LeGlaIre 
Lawrence Lewy 
Frank Uortgo 
Lolhai Nacntnan 
RoOert Nathan 
Bari Neulsid 

Martin Sandler 
Cartel Stokaa 



NATIONAL ADVISORY COUNCIL 

Judge Mofberi l Will. Cnairman 
Morni B Abram 
Wllllain L Ball. Jr 
Judge ueon Becker 
Cor>o JonalfiBT' Binp^ain 
Hon WlilniT< McC Biair, Jr 
Cong Ricnard Bolting 

Clark M Etcl^elba'oe< 

ln..ng M Engal 
Dean Russeii N Fairbanks 
Judga John Fauntleroy 
JuOge Arnold L Fem 
Hon AM Fonaa 

Donald M Frasar 

Hon Orville Freeman 
RaMi Roland Giitelsohn 
Senalo' Jacot) Jmia 
Piol Stanley A Kaplan 
Roftan A Low 
Or Harry A. Marmion 
JuOge Josept< Ma^ur 
Cong AbnsT Mlkva 
Cong James O'Hara 
Frederick O'Neal 
Cong Rlchaid Ollinger 
Hon Endicoii PaaDody 
Sen Claiborne Pel< 
Josepn L Raun. Jr 
Cong Henry Reus* 
Cong Peter W RoOlno. Jr 
Hon Franklin D Roosevell. Jr 
Hon James RCHSsevalt 
Cong Jamas A Scnouat 
RuOoll SoMrnneim 
Hon Hell Staeoier 
Tellon) Taylor 
Cong Frank Thompson. Jr 
Judge William S Thompson 
Hon Franklin H Williams 
Hon G Mennen Williams 
San Harrison A Wiltiarrts 
Hon Ralph ''art>orouon 
Adam Yamotlnski 
Cong SlOriey R. Yates 
Hon Stephen M Young 



A The veteran should have the optloa of being represented by an 

attorney at any stage, but economic Incentives for such represent- 
ation should be provided only at the Intermediate stages of the 
VA process, so that veterans' initial claim determinations will 
geneirally be made without attorneys. 

10a (I Hov should an attorney representing a veteran be compensated for 
his workt 

A A scale of fees based on the amount and difficulty of the work, 

with a cap based on a percentage of the results — but not on irtiether 
the benefits obtained are past due or prospective. 

11. Q If veterans are given the option of hiring an attorney, what 

effect will this have on veterans organization representation? 

A It will somewhat lessen the burden of free representation Imposed 
on the veterans organizations. Many of them are also likely to 
restructure the manner in which they provide representation, in 
that the non-attorney veterans service officers are more likely 
to be in consultation with, or under the general supervision of, 
attorneys either emplcgred by or cooperatlmg with the veterans 
organizations. li should Improve the quality of representation by 
veterans organizations. 



To achieve o more democratic and prosperous America and o more stable World 



290 




MtUia: "^^ y comma/ i^koaJt food 0/ muf. eomtadm, 9 umU moi ipooA iU d/ kim. " 



DISABLED AMERICAN VETERANS 



NATIONAL SERVICE and LEGISLATIVE HEADQUARTERS 

807 MAINE AVENUE. S.W. 

WASHINGTON, DC. 20024 

(202) SS'l-SSOl 

August 24, 1983 



^'^S'; 



<:'c- 



Honorable G. V. Montgomery, Chairman 
House Veterans Affairs Committee 
335 Cannon House Office Building 
Washington, D. C. 20515 

Dear Chairman Montgomery: 

I have received your letter dated August 16, 1983, wherein 
you pose certain questions relative to the Oversight Hearings 
that were conducted by the House Veterans Affairs Committee on 
July 21 and July 26, 1983 concerning the subject of judicial 
review of veterans' claims. 

Our responses to your questions are attached. 

Sincerely yours. 



// JOHN F. HEILMAN 
National Legislative Director 



JFH:ar 
Attachment 



291 



JUDICIAL REVIEW 



1. Should there be concern over possible costs (attorneys' 
fees, court costs, expert testimony, etc.) to the veteran seeking 
judicial review of his claim, especially since he has no way of 
knowing whether he will prevail in the end? 

Yes, these costs very definitely should be a matter of con- 
cern to the Committee as it examines the issue of judicial 
review — especially judicial review in the federal district court 
system as is proposed by the pending Senate passed bill (H.R. 
2936, as amended). This measure, as you know, negates the 
present $10 fee limitation that applies to private attorney 
representation in VA proceedings. It does not bar the payment of 
fees (by veterans to attorneys) for representation that does not 
result in a favorable decision. These fees, together with fees 
attributed to representation in non-VA proceedings (federal 
district courts) could indeed be quite high. Considering the 
length of time an appeal could take in both VA and non-VA pro- 
ceedings, a veteran could easily have over two years worth of 
private attorney representation to contend with when the "bill 
comes due." 

As you are aware, the Disabled American Veterans opposes any 
change in the current fee limitation for private attorney repre- 
sentation in VA proceedings. We do not object to allowing the 
payment of reasonable private attorney fees for representation 
that is provided in non-VA proceedings. 

2. Should the appellate court be allowed to hear the case de 
novo or should the review be limited to the record established 
during the administrative process? 

As stated in our formal testimony, the DAV does not support 
judicial review of adverse VA benefit determinations in the 
federal district court system. We prefer, in accordance with a 
mandate received from the delegates to our most recent National 
Convention, to have such review through the creation of an inde- 
pendent Court of Veterans Appeals — such Court being composed of 
judges appointed from civil life by the President and subject to 
confirmation by the Senate. Review of adverse VA benefit deter- 
minations would be the sole responsibility of such a Court. 

To answer your question, we do not believe that de novo 
review is necessary or warranted by whatever judicial review 
authority the Congress may create. Limiting review to the record 
established during the instant VA proceedings should suffice. 



292 



- 2 - 



3. Would you be in favor of a proposal that would eliminate the 
Board of Veterans Appeals and allow judicial review of Regional 
Office decisions? 

No we would not be in favor of the elimination of the Board 
of Veterans Appeals. The annual allowance rate of EVA decisions 
has been running anywhere from 11% through 13% in recent years. 
Also, many cases remanded by BVA for further development back to 
the local agencies of jurisdiction do result in favorable deci- 
sions at the local level, after such development has occurred. 

BVA therefore provides a level of redress in the VA system 
that is favorable to thousands of claimants. Also, eliminating 
BVA and allowing judicial review of local decisions would greatly 
increase the case load of the judicial review entity which the 
Congress may create — this would be most undesirable. 

4. It is estimated that the median time from filing to disposi- 
tion of cases in federal district courts is approximately 14 
months. Should this time requirement be a consideration in 
determining whether or not judicial review is in the best 
interest of the veteran? 

Yes, it should and this factor, among others addressed in our 
formal testimony, is one of the reasons we believe that an inde- 
pendent Court of Veterans Appeals would be the best provider of 
judicial review of adverse VA benefit determinations. 

5. Should there be concern with the cost to the taxpayer which 
may result from enactment of a judicial review statute? 

In terms of judicial review in the federal district court 
system, the only taxpayer costs we can foresee would be those 
administrative costs associated with the handling of the new case 
loads. Just how much this would be is difficult to say. 
Creation of an independent Court of Veterans Appeals, as proposed 
by the DAV, would require a modest increase in federal expen- 
diture. 

6. How do you respond to the claim that granting judicial review 
would create an unacceptable burden on the already overloaded 
federal court system? 

As stated in our formal testimony before the House and Senate 
Veterans Affairs Committees and as implied above, we do believe 
that the increased case load to the federal court system is a 
negative factor, one that supports our own proposal for creation 
of an independent Court of Veterans Appeals. 



293 



- 3 - 



7. If judicial review by federal courts is allowed, at which 
level (District Court or Court of Appeals) should the review pro- 
cess begin? 

As we do not favor placing judicial review in the federal 
court system, we defer answering this question to those who do. 

8. What role should attorneys play in the veteran's pursuit of 
his claim, i.e., at what stage of the process should the veteran 
be represented by an attorney? 

As stated above, in view of the free, expert, nationwide 
corps of service officer representation that is available to all 
VA claimants from the national veterans' organizations, we do not 
support any change in the current limitation that applies to pri- 
vate attorney representation in VA proceedings. To authorize 
such a change would be tantamount to siphoning millions of 
dollars in disability compensation/DIC/pension benefits out of 
the pockets of disabled veterans and their families and into the 
pockets of private attorneys. If private attorneys wish to con- 
tinue to provide representation to VA claimants in VA proceedings 
(as some of them now do), then they can do so through their "pro 
bono" case work. 



9. How should an attorney representing a veteran be compensated 
for his work? 

Private attorneys representing veterans in any judicial 
review process the Congress may enact should be allowed to 
collect reasonable fees. We would hope that such fees would be 
subject to approval by an appropriate entity to ensure fairness. 

10. Assuming the veteran is given the option of hiring an attor- 
ney, what effect will this have on the representation currently 
being provided by the veterans' organizations? 

If the fee limitation regarding private attorney represen- 
tation in VA proceedings were to be lifted, we do not believe 
that any long-standing, appreciable impact would be felt by the 
veterans' service organizations. That is to say, in view of the 
magnitude of present and future VA claimants, we do not believe 
that our case loads would be reduced to any significant degree. 
The big losers would be those thousands of present and future VA 
claimants who would "purchase" private attorney representation 
that is no better than the free representation available to them 
from accredited service officers of the veterans' organizations. 

Regarding private attorney representation in non-VA pro- 
ceedings, if the judicial review method chosen is in the federal 
district court system, then veteran claimants would be denied the 
right of continuing to use service organization representation, 
as most service officers are not attorneys. This is another 
reason for having judicial review via an independent Court of 
Veterans Appeals (our bill, H.R. 649, which would create such a 
Court, would allow both private attorneys and accredited service 
organization representatives to represent VA claimants). 



294 



Office of General Counsel Washington D.C. 20420 



^ 



Veterans 

Administration $£p A i iQQ*i 

August 31, 1983 In Reply Refer To: 022 



Honorable G.V. (Sonny) Montgomery 
Chairman, Committee on Veterans' Affairs 
House of Representatives 
Washington, D.C. 20515 

Dear Mr. Chairman: 

We are enclosing our responses to the questions pertaining 
to the issue of judicial review of veterans' claims which 
you enclosed with your letter of August 16, 1983. 

Sincerely yours, 




JOHN P. 
general Cot. 

Enclosures 



295 



Question 1: What is VA's estimate of the number of cases 
which would be filed in Federal court each year? 

Answer 1: It is extremely difficult to estimate the 
number of cases which may be filed each year in Federal 
courts, if individual VA benefit decisions are to be 
subject to judicial review. The number of cases filed 
will depend on how any legislation enacted addresses a 
variety of factors. Some of these factors are: 

1. the court in which review is authorized, i.e., 
review by a special court of veterans' appeals, by 
Federal District Courts, by the United states Claims 
Court or by the United States Circuit Courts of 
Appeal; 

2. the type of review authorized, i.e., de novo or 
on the record; 

3. the scope of review, i.e., review of questions of 
law only, or review of both questions of law and fact; 

4. the standard for any factual review authorized, 
again whether the court's review is to be de novo or 
some limited form of review such as the substantial 



296 



evidence test, the arbitrary and capricious test or 
a new standard such as the "rational basis" test as 
embodied in H.R. 2936; 

6. whether exhaustion of administrative remedies is 
required; 

7. the period of time in which a suit may be filed; 

8. the cost to bring the suit, including the amount 
an attorney may charge for representing a claimant in 
court; and 

9. whether the right to bring suit is only pro- 
spective, or if not limited to prospective applica- 
tion, how far back the right will extend. 

Accordingly, in the absence of any specific legislative 
proposal, it is not possible to estimate the number of 
cases that may be filed in Federal courts. We have, 
however, estimated the anticipated number of cases that 
may be brought if the legislation to provide judicial 
review that was passed by the Senate as H.R. 2936 were 
enacted into law. Based on an estimated Board of Veterans 
Appeals denial rate of about 60% and using the 20% Social 
Security system rate of appeals to the courts as a model, 
we anticipate that approximately 4,100 veteran cases would 
be filed annually in Federal court. 



297 



Question 2: There have been various standards of review 
advanced in the several bills pending in the House. Would 
it make a significant difference which standard is adopted 
such as substantial evidence, arbitrary and capricious, 
rational basis? 



Answer 2: We do not believe a significant difference would 
result from adoption of any particular standard for court 
review of VA fact findings. The legal community itself 
remains undecided on such basic questions as whether the 
arbitrary and capricious standard and the substantial 
evidence test are equivalent, and if not, which test calls 
for the broader standard of review. Likewise, the use of 
a standard employing the term "rational basis" presents 
the very real possibility that this concept may be equated 
with the nebulous arbitrary and capricious standard. The 
United States Supreme Court and several courts of appeal 
have indicated that a rational basis for agency action is 
all that is required to meet the arbitrary and capricious 
standard. 

Further, the differences between standards of review of 
agency action may be largely semantic, and the real test 
of the validity of an agency decision may be its reason- 
ableness. K. Davis, Administrative Law Treatise, § 29.00 



298 



(Supp. 1982). Despite fine differences in statutory 
language, the scope of judicial review of an action is 
likely to depend on factors such as the judge's perception 
of the conscientiousness and fairness of the administra- 
tive decision maker. If the court lacks confidence in an 
administrator, it may be prone to substitute its judgment 
for that of the agency. K. Davis, Administrative Law of 
the Seventies , § 29.00 at 649 (1976). As stated by 
Professor Davis "... judicial judgment about how much to 
review any particular case overrides whatever slight 
effect the verbalisms may have." K. Davis, Administrative 
Law Treatise , § 29.00 at 533 (Supp. 1982). 

It is this willingness of the courts to disregard statu- 
tory distinctions that raises our concern that any stan- 
dard of review involving factual aspects of VA benefit 
decisions will open the door to unwarranted judicial 
intervention and provides one of the reasons for our 
opposition to judicial review. 



299 



Question 3: What effect would judicial review have on the 
right of the veteran to have his cases transferred or 
reopened? 



Answer 3: The VA has stated on several occasions that our 
liberal policy of reopening a denied claim on the basis of 
new evidence would continue, notwithstanding judicial 
affirmation of the denial. The claimant would need to 
present new evidence to the Regional Office for the 
purpose of reopening the claim. If either the right to 
reopen or the benefit claimed were denied, the claimant 
would have the usual right of appeal to the Board of 
Veterans Appeals. 

With respect to reconsideration of a Board decision, how- 
ever, judicial affirmation of the denial would likely 
preclude an administrative allowance under 38 C.F.R. 
19.5(B) based on a difference of opinion. 



300 



Question 4: What is your reaction to the DAV's recommen- 
dation that "an in-depth study of Central Office and Board 
of Veterans Appeals decisions be conducted by an indepen- 
dent (non-VA) entity. . . . before any judicial review 
legislation is finalized"? 



Answer 4: We do not believe that a study such as proposed 
by DAV would be practical or serve a useful purpose. DAV 
indicated that a study is needed to determine a number of 
questions. The first is how prevalent decisions are that 
can be characterized as arbitrary and capricious. Any 
study to achieve such a result would require a review of a 
very large number of appellate decisions and would be 
extremely unwieldy. It must be recognized that to achieve 
any worthwhile results, the review of each decision would 
require more than merely reading the BVA decision. The 
review of each case would require an indepth examination 
of all aspects of the case, in effect, a read judication of 
each case reviewed. 

Another practical problem with such a study stems from 
the fact that claim processing is a highly technical 
area. The majority of cases requiring Central Office 
review and many submitted to BVA involve complex or novel 
issues. Resolving these issues requires extensive know- 
ledge of VA law and procedures and the ability to apply 



301 



general legal and medical principles to specific 
problems. We are aware of no "independent (non-VA) 
entity" qualified to study these decisions. 

In the absence of any indication of significant abuse in 
our adjudicative and appellate processes, there appears to 
be little need for such a study. We would also note that, 
at present, if a Board decision is believed to represent 
an abuse of authority, the case can be brought to the 
Chairman's attention and reconsidered. The number of 
reconsiderations requested, however, is not large (fiscal 
year 1982; 35,771 BVA decisions, 350 reconsiderations). 
This suggests that questionable decisions are not 
prevalent. Likewise, there appears to be no need for a 
study to determine the most common issues on appeal to 
BVA. The Board maintains statistics concerning the most 
common issues encountered. In addition, the Appellate 
Index and Retrieval Staff (AIRS) of the Board maintains a 
complete breakdown of all issues by subject matter along 
with their frequency. Since July 1977, the index to Board 
decisions has been published and distributed to all ele- 



25-550 O— 83 20 



302 



ments of the agency as well as many service organizations 
and other public interest groups. This provides an addi- 
tional safeguard ensuring that appeals are handled in a 
fair and equitable manner. 

Finally, we believe that a study to determine whether the 
vast volume of appeals have merit or can be attributed to 
the VA's appellate system being "cost free" and completely 
accessible to all claimants would provide little useful 
information. If the cost free nature and accessibility of 
our appellate procedures are determined to be the prime 
factor in the large number of appeals, the VA, and we 
assume both Congress and the DAV, would not want to alter 
this merely to reduce the volume of appeals. On the other 
hand, the only remediable cause for the high volume of 
appeals that might be determined by such a study would be 
poor adjudication at the regional office level. This, 
however, has never been demonstrated, and the Board's 
allowance rate (13% in fiscal year 1982) suggests that 
regional office adjudication is quite sound. 



303 



¥ 



Merons 

\| 1^ RO. BOX 68237 PORTLAND, OREGON 97268-0237 

J^fP (503) 659-9912 

proce// 



August 26, 1983 



The Honorable G. V. Montgomery 

Chairman 

Committee on Veterans' Affairs ^Ci' ' 'OCO 

U.S. House of Representatives -l.!' ^ ■ ''o 

335 Cannon House Office Building 

Washington, D.C. 20510 

Dear Congressman Montgomery: 

It was good to see you and speak briefly with you on August 
23rd, in Seattle. 

As the Executive Director of Veterans Due Process, Inc. 
I would like to preface our answers to the eleven questions from the Veterans 
Affairs Committee, pursuant to the Judicial Review hearings conducted in 
Washington, D.C. on July 21 & 26, 1983, by stating the concern expressed 
by many of the members of our national Advisory Comrrittee. Typical of 
responses is the following: 

"In all those questions, there is no mention of a 
request for an opinion on if Judicial Review will 
help the veteran . The only thing that seems to be 
on the mind of the questioner is whether this will 
result in more money being spent by the taxpayer." 

It is unfortunate for the veteran that the primary concern when 
it comes to justice for the veteran continues to be costs, rather than 
justice . That attitude was perhaps best expressed in the words of the V.A. 
Administrator in a letter written in 1952 in connection with the policies 
necessitating the "No Review Statute" to a Subcommittee of the House Committee 
on Veterans' Affairs. One of the primary purposes identified was: 

"To insure that veterans benefits claims will not 
burden the courts and the Veterans Administration 
with expensive and time consuming litigation." 

QUESTIONS AND ANSWERS 

1. Should there be concern over possible costs (attorney's fees, court 
costs, expert testimony, etc.) to the veteran seeking judicial review of 
his claim, especially since he has no way of knowing whether he will prevail 
in the end? 

The veteran who has been wrongfully or illegally denied benefits to 
which he or she is entitled by statute law, and who consequently seeks 
judicial review of his claim, should be as concerned over possible 
costs (attorneys' fees, court costs, expert testimony, etc), as are 
other citizens of the United States who seek to correct errors made 
by other agencies of the Federal Government who also have no way of 
knowing for sure whether he will prevail in the end. Life is full 
of risks and chances, but you only get what you pay for. 



304 



Veterans injured in our nation's wars can attest to the risks and chances 
which exist on the battlefield. Lawsuits also contain chances and 
risks. Sometimes you win and sometimes you don't win. It is, of course, 
going to cost more to bring a complex case to a successful conclusion, 
but an attorney will be able to tell the claimant something about his 
prevailing in the case. The pending legislation is also carefully 
structured in such a way as to ensure that, for the most part, only 
meritorious cases will be brought before the courts. It is also obvious 
that attorneys will not take cases on a contingency basis which they 
know are not meritorious, and that they cannot win. 

2. Should the appellate court be allowed to hear the case de novo or should 
the review be limited to the record established during the administrative 
process? 

YES. The evidentiary gaps which occur in many V.A. cases could create 
a very expensive and time consuming process of remands. The V.A. makes 
mistakes on the most basic level of these cases, and it is sometimes 
necessary to go back to the beginning and start fresh. Courts should 
be allowed to make a searching review of the matter. 

3. Would you be in favor of a proposal that would eliminate the Board of 
Veterans Appeals and allow judicial review of Regional office decisions? 

YES. Out of respect for the public purse, we would be in favor of 
eliminating the BVA, inasmuch as a couple of already expensive hearings 
at the regional office level (perhaps with different hearing panels) 
allows the V.A. ample time to ensure that its decision is consistent 
with the facts and applicable laws. 

The BVA is an expensive "paper review" (claimants cannot, for the most 
part, afford to attend) and approximately 90% of the cases are denied. 
The elimination of the BVA would encourage the regional offices to 
ensure that the demands of justice and law are met. 

4. It is estimated that the median time from filing to disposition of cases 
in federal district courts is approximately 14 months. Should this time 
requirement be a consideration in determining whether or not judicial review 
is in the best interest of the veteran? 

NO. The 14 months is time to trial. A veteran's attorney could seek 
preliminary relief for the veteran or move for a preliminary injunction, 
and the merits of the court's preliminary determination could be heard 
at a later date. In that respect, it could be a great improvement 
over the existing system. We know of veterans who have waited for 
decades (50 years in one case) for relief from what the veterans consider 
to be wrongful or illegal V.A. decisions. Justice delayed is better 
than no justice at all. Many V.A. cases take substantially longer 
than 14 months to be decided. Judicial review will be the difference 
between winning and losing on many of these cases. 

It would be nice to have all these cases decided quickly. However, 
it is not in the veteran's best interest to have the cases be finished 
quickly at the price of him " losing " the case. 



305 



5. Should there be concern with the cost to the taxpayer which may result 
from enactment of a judicial review statute? 

The cost impact must, of course, be balanced with the benefit, but 
the benefit far outweighs the cost in this matter. There will be 
considerable cost savings under the new alignment. Attorney involvement 
will save a lot of administrative time. Under the present system, 
the V.A. is forced to deal with numerous veterans who are not familiar 
with the workings of the law, and do not know what they are doing. 
They take up a lot of the V.A.'s time in matters which are not 
necessarily important to the outcome of the case. With attorney 
involvement, the facts would be developed by the claimant, and the 
V.A. could adjudicate, thus saving the taxpayer money. Congressional 
offices would probably also save a lot of time now being expended 
concerning veterans' claims with the V.A. 

One of the results of judicial review, aside from saving taxpayers 
money, will be that many veterans will win cases, who lose them under 
the existing system. 

6. Prior to enactment of judicial review, would it be worthwhile to conduct 
a study of the existing VA adjudication process in an effort to see how 
it might be improved? 

NO. such a study would result in additional delays and waste a lot 
of taxpayers' money with no benefit. Judicial review is necessary 
no matter how many improvements take place at the V.A. The V.A., and 
many other people, already know what the problems are -- budgetary 
constraints. Judicial review will result in greater uniformity of 
decision making, and eliminate abuses of discretion. The outside 
scrutiny of V.A. operations, achieved through judicial review and 
attorney involvement, will improve the entire V.A. system, and will 
result in considerable savings to the taxpayers, and a more equitable 
system for the veteran. 

7. How do you respond to the claim that granting judicial review would 
create an unacceptable burden on the already overloaded federal court system? 

It is felt that the marginal impact of new cases will be negligible. 
Our nation's wars created an unacceptable burden of responsibility 
on the shoulders of many veterans. Wars cost money too. We must take 
care of the wounded, no matter what the cost. The injured veteran 
is now at the mercy of politics. The veteran who served his country 
should be the first to enjoy the benefit of our constitutional form 
of government, especially Due Process of Law protections. The courts 
of our nation should have never been closed to them, that was the 
"unacceptable burden." 

8. If judicial review by federal courts is allowed, at which level (District 
Court or Court of Appeals) should the review process begin? 

The review process should begin at the district court, especially in 
a case of de novo review. The court of appeals are not structured 
in such a way as to handle these types of cases as the initial judicial 
step. Also, there are so few circuit courts that the veteran would 
probably have to travel. The V.A. lower level now polices itself. 
That is, the same person who rejects the initial claim at the first 
level, is then asked to review his own decision to see if he has made 
any mistakes. 



306 



9. What role should attorneys play in the veteran's pursuit of his claim, 
i.e., at what stage of the process should the veteran be represented by 
an aattorney? 

An attorney can be vital at every stage in the veteran's pursuit of 
the claim. The veteran should be allowed the freedom of choice to 
have an attorney at any stage he wants to. Inasmuch as BVA hearings 
are limited to the record developed below, it can be very important 
to the veteran that said record be developed properly from the beginning 
— especially in complex cases. Professionals (attorneys) are trained 
in gathering and presenting such evidence in such a way as to maximize 
success. 

10. How should an attorney representing a veteran be compensated for his 
work? 

An attorney should be compensated, depending on how much work he does 
for the particular claim. Some claims demand more work than others. 
A standard contingency fee arrangement of 25-33% of back benefits, 
as in other cases before other agencies, would probably be in order. 
If the percentage of the back check at the time the disability is 
granted does not compensate the attorney fairly for his time and work, 
he should be granted a smaller percentage of the veteran's monthly 
check until the attorney's fees have been paid off. It is true that 
75% of something is better than 100% of nothing, which is now often 
the case for veterans, as a result of no judicial review or attorney 
involvement. 

11. Assuming the veteran is given the option of hiring an attorney, what 
effect will this have on the representation currently being provided by 
the veterans organizations? 

The representation currently being provided by the veterans 
organizations will improve in quality. They will probably hire more 
attorneys to handle complex cases. Veterans will probably choose 
to go with attorneys in complex cases, which would result in only 
a slightly diminished role for the veterans organizations. In routine, 
uncomplicated cases, the veterans would probably choose representation 
by a service organization, as said services are available to the veteran 
"free of charge." 

All of the veterans organizations in America (except the "leadership" 
of the American Legion) are now in favor of changing the existing 
system of justice available to veterans. The reason is because they 
are concerned about what is good for the "veteran." They wish to 
maximize the veteran's chances of winning his V.A. case, even if it 
is necessary to take the V.A. to court. They know that the time for 
Judicial Review for veterans has come. We earned our rights 




P.S. We are informing the rank and file members of the American Legion 
of what is going on concerning veterans' rights. I had numerous 
conversations in Seattle with members of the Legion who were shocked by 
the existing system. Many asked for extra copies of our fliers to distribute 
back in their home states. We passed out thousands of copies. We must 
now make sure that the American people learn what is going on here, so 
that they can get involved. 

cc: Full distribution. 



307 
VETERANS OF FOREIGN WARS OF THE UNITED STATES 




OFFICE OF THE DIRECTOR 



. ^^P 71983 



September 5, 1983 



The Honorable G. V. Montgomery, Chairman 
Committee on Veterans Affairs 
United States House of Representatives 
Washington, D. C. 20515 

Dear Mr. Chairman: 

Enclosed you will find responses to the questions pertaining to the issue 
of judicial review of veterans' claims we received as a follow-up to the 
July 21, 1983 oversight hearing. 

Please find enclosed, also, a copy of Resolution No. 602, entitled "Judicial 
Review." The resolution, adopted at our most recent National Convention, is 
provided for yoxir review in that it differs somewhat from the resolution on 
which our testimony was based and in response to The Honorable Nancy L. Johnson's 
question regarding our position on a separate Court of Veterans Appeals . 

In addition, Mrs. Johnson also requested information with respect to the 
need for instituting judicial review of administrative decisions of the VA. 
In responding, we must point out that we do not believe the present system of 
adjudication of claims has failed and we do not believe, as well, that this fact 
should be held as a reason to deny the implementation of judicial review. Our 
support of judicial review has, as you know, evolved over p. number of years. 
It is the result of a general consensus among the membership of our organization 
and our constituency, where the view has become that the claimant is involved in 
a highly legalistic process, the logical/natural end to which lies in relief/ 
redress in the courts, if desired. The majority of cases entertained before the 
Board of Veterans Appeals are adverse determinations , and our staff is in- 
creasingly called upon by claimants for advice as to whether access to the courts 
is available. Our government was established on the premise and with the intent 
that our laws would provide protection for all citizens, and such is not currently 
the case with respect to claims of veterans. And, if for no other reason, our 
mandate clearly reflects the desire of our own constituency in this regard. 

With best wishes and kind regards , I am 

Sincerely yours , 



DONALD H. SCHWAB, Director 
National Legislative Service 



Enclosiires 

* WASHINGTON OFFICE * 
VFW MEMORIAL BUIIJJING • 200 MARYLAND AVENUE, N.E. • WASHINGTON, D. C. 20002 - 5799 • AREA CODE 202-54S-22S9 



308 



Question #1 - Should there be concern over possible costs (attorneys' 
fees, court costs, expert testimony, etc.) to the veteran seeking judicial 
review of his claim, especially since has has no way of knowing whether he 
will prevail in the end? 

Response #1 - These concerns are not unique to veterans who seek re- 
dress in the courts - all plaintiffs would have similar concerns in any form 
of litigation. We contemplate, insofar as our resolution is drawn, that 
there would be little "expert testimony" in a review of law and regulation; 
our resolution does not contemplate de^ novo review, and it appears that such 
testimony would be more appropriate to de novo review. We do not object to 
the veteran absorbing reasonable court costs that may be assessed similar to 
those of any plaintiff before the court. 

Question it2 - Should the appellate court be allowed to hear the case 
de novo or should the review be limited to the record established during 
the administrative process? 

Response #2 - It is generally understood that a de novo review would be 
of the record established during the administrative process. With this in 
mind, we continue to advocate against de novo review; we do support review 
of matters related to questions of law and regulation. 

Question #3 - Would you be in favor of a proposal that would eliminate 
the Board of Veterans Appeals and allow the judicial review of Regional 
Office decisions? 

Response #3 - We oppose the abolition of the Board of Veterans Appeals. 
We refer you to Page 1 of our testimony, wherein we state: "In supporting 
judicial review, however, the VFW is not being critical of the VA's claim 
processing apparatus, including the Board of Veterans Appeals (BVA) . We 
have praised its performance in the past and do not see any reason to alter 
this support. The Board, under constant pressure from mounting workloads 
and the increasing complexity of its cases (such as radiation and herbicide 
exposure claims), renders for the most part, fair and equitable decisions." 

Question #4 - It is estimated that the median time from filing to dis- 
position of cases in federal district courts is approximately 14 months. 
Should this time requirement be a consideration in determining whether or 
not judicial review is in the best interest of the veteran? 

) 
Response #4 -We do not believe the question of the time frame of a 

final outcome of the review process in a federal district court should be 
the essence of the question. Irrespective of the time frame, the veteran 
should be allowed to make the determination whether he concurs with the de- 
cision in the administrative process or he feels compelled to seek review 
or relief in the courts. 

Question #5 - Should there be concern with the cost to the taxpayer 
which may result from enactment of a judicial review statute? 



309 



Response //5 - Although additional cost to taxpayers will occur, it con- 
stitutes a secondary consideration to what we believe to be the exercise of 
constitutional rights that veterans have borne arms to preserve. In fact, 
veterans compose a significant part of the taxpayer constituency. Nor do we 
believe taxpayers in general would object to the cost where veterans are 
permitted to exercise the same rights enjoyed by other federal beneficiaries. 

Question #6 - Prior to enactment of judicial review, would it be worth- 
while to conduct a study of the existing VA adjudication process in an effort 
to see how it might be Improved? 

Response #6 - Although the existing VA adjudication process has been re- 
viewed from time to time for the purpose of instituting improvements, we do 
not object to such a study. However, we do not believe such a study, or 
improvements implemented thereby, should mitigate against the timely enact- 
ment of judicial review of administrative decisions of the VA. 

Question #7 - How do you respond to the claim that granting judicial 
review would create an unacceptable burden on the already overloaded federal 
court system? 

Response //7 - Although we understand that such a review will create 

some burden (the extent of which we cannot estimate) on the court system, the 

overriding issue remains equity under the law for veterans, their dependents 
and survivors. 

Question //8 - If judicial review by federal courts is allowed, at which 
level (District Court or Court of Appeals) should the review process begin? 

Response #8 - We believe the veteran should be allowed to enter the 
court system at the U.S. District Court level. Administrative determinations 
are initiated at the local and most accessible level; similarly, in judicial 
review, the veteran should enter the court system at the most local and ac- 
cessible level, thereby, firstly, minimizing the cost to counsel, the veteran 
and the government and, secondly, assuring the most timely response. 

Question #9 - What role should attorneys play in the veteran's pursuit 
of his claim, i.e. , at what stage of the process should the veteran be re- 
presented by an attorney? 

Response #9 - Attorneys should necessarily be representing veterans at 
the court or review level; prior to that level, the discretion of the veteran 
should prevail, although we do not recommend any change to existing law with 
respect to attorney's fees at the administrative level. 

Question #10- How should an attorney representing a veteran be compen- 
sated for his work? 

Response #10- Attorneys' fees similar to those set forth in S.636, as 
more fully described in Senate Report 98-130, appear to be a reasonable 



310 



response to both protecting the veteran and providing adequate remuneration 
to attorneys. Compensation for attorneys, as long as such fees are generally 
acceptable to all parties and where the interests of veteran claimants and 
attorneys are equitably served, is not considered objectionable to us. 

Question #11 - Assuming the veteran is given the option of hiring an 
attorney, what effect will this have on the representation currently being 
provided by the veterans organization? 

Response #11 - If a system of judicial review is enacted authorizing 
such at the federal court level, we anticipate little or no adverse effect 
or results in the administrative process on representation by veterans' or- 
ganizations. 

Hypothetically, were legislation enacted whereby attorney representa- 
tion of veterans was made more appealing in the administrative process, the 
negative effects would still be considered negligible on veterans organi- 
zation representation. Such organizations are generally recognized in the 
community as the staunchest veteran advocate in the administrative forum, 
possessing the expertise to secure the best possible result therein. In 
addition, those services offered are gratuitous, thereby having considera- 
ble appeal to claimants. 



311 



Resolution No. 602 
JUDICIAL REVIEW 

WHEREAS, Section 211, Title 38, United States Code, provides that decisions of the 
Administrator of Veterans Affairs on any question of facts or law under any law 
administered by the Veterans Administration providing benefits for veterans, their 
dependents or survivors are final and conclusive and are not subject to review by 
any other official or court of the United States; and 

WHEREAS, this section, in effect, denies veterans and their beneficiaries the same 
rights possessed by citizens in decisions of entitlement under other federal programs; 
and 

WHEREAS, the principle of judicial review of VA benefit decisions has, historically, 
evoked controversy and widespread debate in Congress and elsewhere; and 

WHEREAS, the Veterans of Foreign Wars, being keenly aware of its obligation to this 
nation's veterans and their survivors has, as mandated, urged Congress to permit 
access to the United States courts of law with regard to VA benefit determinations; 
now, therefore 

BE IT RESOLVED, by the 84th National Convention of the Veterans of Foreign Wars of 
the United States, that we reaffirm support for legislation which would provide 
Judicial review in an appropriate U.S. District Court of Veterans Administration 
benefit claims determinations concerning questions of law and regulation; and 

BE IT FURTHER RESOLVED, that the $10=00 attorney fee currently in effect under 
38 use 3404(c) be retained. 



Adopted by the 84th National Convention of the Veterans of Foreign Wars of the United 
States held in New Orleans, Louisiana, August 12-19, 1983. 

Resolution No. 602 



312 



i 



VkETNAMVETERANSOFAMERICA 



329 EIGHTH STREET NE, WASHINGTON, DC 20002 * 202/546-3700 

August 30, 1983 



G.V. (Sonny) Montgomery, Chairman 
United States House of Representatives 
Committee on Veterans' Affairs 
335 Cannon House Office Building 
Washington DC 20515 

Dear Chairman Montgomery: 

The Vietnam Veterans of America is grateful for the 
opportunity to reply to the questions enclosed with your letter 
of August 16, 1983. Set forth below are WA's responses in the 
order enumerated in your August 16th letter. 

1, Litigation Costs . There should be no more concern 
over possible litigation costs incurred by a veteran seeking 
judicial review of his claim than there should be for other 
citizens seeking review of federal agency action. Many veterans 
who depend upon benefits provided by the Veterans Administration 
are poor. Congress should ensure that these veterans have access 
to free legal counsel by adequately funding the Legal Services 
Corporation, the entity created by Congress to ensure that low- 
income citizens have equal access to justice as more wealthy 
citizens. In addition, it is likely that veterans groups will 
hire attorneys to represent veterans if Congress authorizes 
judicial review of VA determinations. Thus, low-income veterans 
will likely be able to obtain free representation from a legal 
services office or a veterans organization. 

As far as court costs are concerned, low-income veterans 
should be able to avoid payment of traditional court costs like 
filing fees by filing a motion to proceed in forma pauperis . 
Courts have traditionally excused low-income citizens from 
payment of court costs like filing fees by granting such motions 
pursuant to 28 U.S.C. § 1915. 

With regard to other litigation costs like those associated 
with depositions and expert witnesses, there should be no concern 
if judicial review is authorized. The various bills authorizing 
court review that have been introduced all require the court to 



A not-for-profit national veteran's organizaticin . 



313 



G.V. (Sonny) Montgomery Page 2 

August 30, 1983 

review only the record created by the VA. These bills preclude 
introduction of new evidence to the Court. Thus, there will be 
no need for depositions or expert witnesses. Court review of VA 
determinations will therefore be relatively low cost. 

WA does believe that there should be Congressional concern 
about ensuring that veterans who are ineligible for Legal 
Services Corporation assistance have access to attorneys if 
judicial review is authorized. One way to ensure such access is 
through the extension of the Equal Access to Justice Act, which 
authorizes court awards of attorneys fees to citizens who prevail 
in legal actions in which the agency's position in court is 
unreasonable. Another commonly used method to ensure that the 
cost of litigating in federal court does not deter citizens from 
bringing meritorious lawsuits is for lawyers to represent 
citizens on a contingency basis. It is likely that attorneys 
will represent veterans on this basis if judicial review is 
allowed. This will ensure that cases with merit are brought to 
court, with the corollary beneficial effect that cases without 
merit will be discouraged because lawyers will not be willing to 
take the case on a contingency basis. WA does not oppose 
Congressional attempts to place a ceiling on the percentage of 
the recovery that a lawyer could retain when representing a 
veteran on a contingency basis, as long as the ceiling is not so 
low that it will discourage attorneys from taking meritorious 
cases. 

2. The Scope Of Judical Review . The deeply imbedded 
principle established by the Administrative Procedure Act is that 
court review of federal agency action should not be jde^ novo , but 
should rather be limited to the record established during the 
administrative process, unless the administrative fact-finding 
process was inadequate. WA beliefs that this long-standing 
precept should apply to court review of VA determinations as 
well. 

3. The Board Of Veterans Appeals . WA would not be in 
favor of a proposal that would eliminate the Board of Veterans 
Appeals and allow judicial review of regional office decisions. 
The Board of Veterans Appeals does correct many regional office 
errors and creates a certain degree of consistency through its 
review of regional office decisions. By establishing an agency 
appeal procedure. Congress has provided a limited safeguard 
against arbitrary decision-making. However, the Board of 
Veterans Appeals, like other agency appellate forums, sometimes 
makes mistakes, including errors on issues of law. The 
establishment of judicial review of BVA determinations will 
provide a further safeguard against erroneous decision-making. 

4. The Time It Takes To Litigate Cases In Federal 
District Court . WA does not believe that the amount of time it 
normally takes to litigate a case in federal district courts 
should be a consideration in determining whether judicial review 
is in the best interest of the veteran. The reason for this 



314 



G.V. (Sonny) Montgomery Page 3 

August 30, 1983 

position is simple. Judicial review merely provides an 
additional remedy for veterans who have been denied relief by the 
Board of Veterans Appeals. Under the proposed legislation, a 
veteran can only seek court review after all VA agency appeals 
have been exhausted. Allowing judicial review is in the best 
interest of the veteran no matter how long it takes for federal 
district courts to resolve such a lawsuit because the opportunity 
for judicial review provides veterans with a chance for obtaining 
veterans benefits that they would not have without judicial 
review. 

5. The Cost To The Taxpayer . WA believes that the 
cost to the taxpayer of providing judicial review would be small 
and that those testifying who have complained about the cost to 
the taxpayer have overestimated what the cost will actually be. 
The main reason that those who oppose judicial review have 
overestimated the cost is that they analogize judicial review of 
VA determinations to review of Social Security Administration 
cases. As our July 1983 testimony demonstrated, for decades 
veterans have been able to obtain court review of Board for 
Correction of Military Records ("BCMR") and Discharge Review 
Board ("DRB") decisions. The decisions of these Boards are often 
on issues such as character of discharge and entitlement to 
military disability benefits — the same type of issues decided 
by the VA. Thus, court review of DRB and BCMR decisions provides 
a far closer analogy than court review of SSA decisions with 
regard to we can expect if court review is allowed. For decades, 
less than 100 veterans have annually sought court review of the 
thousands of Board for Correction of Military Records and 
Discharge Review Board decisions that are rendered annually. 
This demonstrates that the impact on the court system of judicial 
review is not likely to be great. 

Another factor that will limit the number of cases brought 
relates to the quality of Board for Veterans Appeals decision- 
making. The Veterans Administration states that the BVA does an 
excellent job in deciding veterans' claims. If this is true, it 
is not likely that many veterans will seek court review. 
Attorneys will not represent veterans if the case does not have 
merit because the fee agreement with the veteran is likely to be 
on a contingency basis and lawyers will not be willing to 
represent the veteran on a contingency basis unless the case has 
merit. For the foregoing reasons, the figures provided by 
opponents of judicial review concerning the number of cases that 
can be expected to be filed are greatly exaggerated. 

6. A Study Of The Existing VA Adjudication Process . 
It would not be worthwhile to conduct a study of the existing VA 
adjudication process prior to enactment of judicial review. This 
is because the justification for judicial review is unrelated to 
the quality of the existing VA adjudication process. No matter 
how good such an agency's adjudication process is, there will 
always be mistakes in the adjudication process because it is run 
by human beings. Without review by an independent tribunal, it 



315 



G.V. (Sonny) Montgomery Page 4 

August 30, 1983 

will remain a closed system, insulated from independent 
oversight. This is not healthy no matter how well-run the agency 
system is. 

7. The Burden On The Federal Court System . See our 
response to inquiry number 5 above. 

8. The Appropriate Court For Judicial Review . If 
judicial review by federal courts is allowed, the review process 
should begin in a federal district court. The federal district 
courts are the level at which most cases seeking review of 
federal agency action are initiated, and WA does not believe 
there are any legitimate reasons to have the review level start 
at the Court of Appeals. Review in a district court involves one 
judge, rather than the three judges that review all Court of 
Appeals cases. Thus, the district court process is less costly 
to the taxpayer. In addition, because there are more district 
courts nationwide, veterans will have easier access if review 
begins at the district court level. 

9 . The Introduction Of Attorneys Into The 
Administrative Process . WA believes that attorneys should be 
allowed to represent veterans at every stage of the VA 
adjudicative process. Veterans should be provided with freedom 
of choice over whom their representative should be and when their 
representative should be able to assist them. Moreover, 
attorneys are especially needed at the beginning of the VA 
adjudicative process for veterans who are pursuing complicated 
claims. In a complicated case, lawyers are often necessary to 
ensure creation of a proper record. If the administrative record 
has already been created before an attorney is first permitted to 
become involved, it will sometimes be too late for the attorney 
to correct errors or enhance the veteran's probability of 
success. 

10. Attorney Compensation . WA believes that the free 
market should control how much an attorney should be compensated 
for representing a veteran either in federal court or in any part 
of the administrative process before the Veterans Administra- 
tion. The limitations in the currently pending House bills are 
too low. If these bills are enacted without amendment, most 
attorneys will not be willing to represent veterans who have 
meritorious claims. There is no reason to believe that veterans 
need more protection from attorneys than other classes of 
citizens. Moreover, the considerations that underlie the motive 
to regulate the attorney-veteran relationship can be adequately 
addressed through the suggestions discussed in the response in 
paragraph 1 above. 

11. The Effect On Veterans Organizations Of The Option 
Of Hiring An Attorney WA believes that if veterans are given 
the option of hiring an attorney, it will have a beneficial 
effect on the representation currently being provided by the 
veterans organization. First, by providing another resource for 



316 



G.V. (Sonny) Montgomery 
August 30, 1983 



Page 5 



veterans, it should reduce the work load o 
overburdened veterans organizations. Ther 
representation the veterans organizations 
will likely be enhanced. Secondly, the av 
will encourage veterans organizations to u 
unused resource. Because attorneys and ve 
will be likely to ventilate their advocacy 
strategies together, a higher quality of v 
should ultimately result. WA has experie 
effect first-hand. It has established a c 
the assistance of attorneys is an integral 
that its claims program has been greatly e 
participation. 



f the already 
efore, the quality of 
will be able to provide 
ailability of attorneys 
tilize a heretofore 
terans organizations 

theories and 
eterans representation 
need this beneficial 
laims program in which 

part. WA believes 
nhanced by attorney 



If there are any further questions you have or any 
additional information you would like, please feel free to 
contact me. Thank you again for the opportunity to respond to 
these areas of inquiry. 




John Terzano 



317 




The University of Day ton 

August 20, 1983 



Hon. G. V. (Sonny) Montgomery, Chairman 

U.S. House of Representatives Committee on Veterans' Affairs 

335 Cannon Office Building 

Washington, D.C. 20515 



Dear Representative Montgomery: 

1 am more than pleased to supply responses 
to the questions you have presented as follow up to the July 21 and 26, 1983 
oversight hearings. Thank you for your interest and concern. 

1. You indicate that the fear which some veterans organizations 
have concerning a possible weakening of their ability to advise 
and counsel veterans is an unrealistic fear. Do you believe this 
is true in light of the need which you also discuss for "an attor- 
ney who is trained and skilled in gathering and presenting incon- 
clusive and complex evidence to an administrative agency, and 
building a record for possible appeal..."? 



Ans: The vast majority of the claims processed 
by the Veterans Administration are routine and do not involve critical or 
disputed issues of fact or injury characterization. In all of those cases 
I think the service representatives can supply extremely helpful advice 
and counsel because they are familiar with the procedures, the ritual terms 
and the methodology of the VA. Since their services are for all intents and 
purposes free, it is doubtful that any veteran is going to se°k an attorney 
to represent him. It is only the unusual or first impression type of case 
which may involve a statutory ambiguity or an unusual or tricky characterization 
problem which the veteran might prefer to have handled by an attorney. We 
think, in such a case, the veteran ought to have that option. 

2. Information reflects that in 1982 the median time of filing to 
disposition of cases in the U.S. District Courts was some 14 months. 
In view of this time requirement, might it not be best to allow the 
direct appeal of an adverse VA Regional Office decision, thereby 
eliminating the time and expense of going through the Board of 
Veterans Appeals (which now involves some 16 months) ? 



SCHOOL OF LAW 

Administrative Offices 

300 College Park Dayton, Ohio 45469-0001 (513) 229-3211 



25-550 0—83 21 



318 



[Montgomery: 8/20/83] page 2 

Ans; There Is a certain amount of appeal to 
the proposition that a veteran should get swift judicial review of an 
adverse determination by a VA Regional Office, but such a system would 
raise some serious legal problems unless the the Regional decision 
conformed to a traditional adjudicatory hearing and produced a full 
record and transcript. I know that the Veterans Administration is opposed 
to formalizing its processes along judicial models, so 1 don't see that 
suggestion as being realistic. An alternative might be to reduce the 
de novo characteristics of BVA hearings and appeals and charge the BVA 
with the responsibility of ensuring that regional decisions were consistent 
and supported by the record. This might reduce the workload and appeal 
time, yet avoid regional inconsistencies. 



3. You have stated in your testlotony that you have many examples 
of situations in which the VA lias acted arbitrarily and capriciously. 
Please supply the Committee with examples of the cases to which 
you have referred. 



Ans; Enclosed please find excerpts from the text, 
footnotes, and exhibits of my Report to the Administrative Conference of the 
United States compiling a number of reported illustrations of arbitrary, 
capricious, or irregular action of the Veterans Administration. /^ I have 
also received any number of letters from veterans around the country who 
have reported what they consider to be illegal actions of the Veterans 
Administration. All of these persons ask, however, that their identities 
not be revealed, so there is not much point in recounting them as there Is 
no reliable means for corroboration. One story, however, which I tend to 
find believable, states that the veteran reported that he has sustained an 
injury to his back "when lifting." He reports that this was transcribed 
to the effect that he had hurt his back "when enlisting," and that he 
was turned down consistently by the VA on the ground that since the injury 
had been sustained "when enlisting" is could not be service-connected. 

All best wishes, and if there is any way 
in which I can be of further assistance, please let me know. 



Sincerely yours, 

Frederick Davis 
Dean 

NOTE: The above-mentioned excerpts from the 
report of Dean Davis to the Administrative 
Conference of the United States are retained 
in Committee files. 





319 



^tvaiBif Mar HeteratiB of tift IS^ittb &tateja of America 

1712 New Kamiifiliire Aurnue. N.S.. SaBtiingtan. i.dl. 20009 

0783146NX 
Stanley N. Zwaik 

NATIONAL COMMANDER JulV 19 IQR'^ 



The Honorable G.V. Mongomery 
Chairman, Subcomni ttee on 
Oversight & Investigations 
House Committee on Veterans' Affairs 
335 Cannon House Office Building 
Washington, D. C. 20515 



Dear Mr. Chairman: 

I regret that we will be unable to testify before your Subcommittee July 21st 
regarding legislation providing for judicial review of determinations made on 
veterans' claims by the Veterans Administration. However, I would appreciate 
this letter being entered into the formal hearing record. 

As we indicated both in a resolution passed at our National Convention last 
year and reiterated in testimony before your committee March 17th, JWV stands 
forthrightly in support of legislation to subject Veterans Administration 
decisions on benefits to review by the courts. 

Currently, veterans' constitutional rights are limited through the denial of 
a veteran's right to appeal unfavorable decisions on benefits^ In addition, 
the arbitrarily fixed ten-dollar maximum lawyer's fee violates a veteran's 
right to legal representation. It is inequitable to limit veterans' consti- 
tutional rights to appeal, and to limit their legal representation while these 
rights are secured for people who face civil or criminal charges. 

We urge the passage of pending legislation which would make the VA subject 
to the same judicial review provision to which the Social Security Administra- 
tion and other agencies are subject. The legislation also provides for the 
deletion of limits on legal fees and requirements for the VA to publish 
proposed rules and regulations for public comment. 

We believe it is essential for American veterans to receive the same 
constitutional rights granted to all other U.S. citizens. It is time for 
Congress to pass this long overdue piece of legislation, which constitutes a 
great step forward in promoting the rights of veterans. 



Sincerely, 





k 
Commander 



320 




NATIONAL ASSOCIATION 
OF ATOMic VETERANS 



WASHINGTON OFFICE • Suite 606. 236 MASSACHUSETTS Avenue, n.e . Washington. DC 20002 • (202) 543-771 1 



TESTIMONY OF E. COOPER BROWN, GENERAL COUNSEL 
FOR THE NATIONAL ASSOCIATION OF ATOMIC VETERANS 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATION 
BEFORE THE HOUSE VETERANS AFFAIRS COMMITTEE 



MH. CHAIRMAN AND MEMBERS OF THE COMMITTEE 

Theink you for the opportunity to present the view of the 
National Association of Atomic Veterans on whether there should 
be judicial review of Veterans Administration (VA) decisions on 
veterans' claims for benefits and services. 

The National Association of Atomic Veterans is a proponent 
of judicial review. NAAV's position reflects the views of its 
veteran membership. 

NAAV was founded in February 1979 by Wanda Kelly and her 
husband Orville Kelly to help Atomic Veterans and their families 
gain medical treatment and service connected Veterems Adminis- 
tration benefits for their radiation-caused illnesses. 

Begun with 150 Atomic Veterans and their families, NAAV has 
grown to a national organization with over 10,000 persons on 
their mailing list. NAAV is a non-profit organization whqse 
mandate is : 

* to identify up to 250,000 military men exposed to ionizing 
radiation: 

* to assist Atomic Veterans in gaining medical coverage from 
the Veterans Administration and to file for service connect- 
ed disability; 



321 



- 2 



* to gain Congressional recognition for Atomic Veterans as 

radiation victims, and to amend laws to aid them in gaining 
medical treatment and service connected benefits. 

Veterans of nuclear weapons testing have been left with no 
legal recourse for relief. Many of the Atomic Veterans have 
sought care and compensation from the Veterans Administration. Some 
have gone to court seeking damages from the government. Neither 
course has yielded relief. 

First, the Veterans Administration does not recognize the 
relationship between exposure to ionizing radiation and radiation- 
induced chronic diseases. Moreover, there is no absolute scientific 
consensus as to the relationship between the level of radiation 
exposure and subsequent health problems. 

Second, a veteran filing a claim against the V.A. is limited 
by law to paying a lawyer a maximum of $10.00 (ten dollars) to 
represent him. To protect veterems from being preyed upon by 
lawyers a law was enacted after the Civil War limiting the fee a 
lawyer may accept to $10.00 for representing a veteran before the 
V.A. 

Third, the V.A. is virtually unique among federal agencies 
in that its decisions are not subject to judicial review. Con- 
sequently, a number of Atomic Veterans have sought to sue the 
government directly for damages through the courts. Their way 
has been blocked by a legal doctrine that exempts the military 
from liability for injuries to service men that occur in the 
course of their services — the Feres doctrine. 

For the Atomic Veteran, Feres has meant the dismissal of 



322 



claims of in-service negligence as well as those alleging violation 
of constitutional rights. (See, e.g. Jaffee v United States , 
592 F.2d 712 and 663 F.2d 1226 (3rd Cir. , 1981); Broudy v United 
States 661 F.2d 125 (9th Cir. , 1981) ; La swell v Brown , 683 F.2d 
261 (8th Cir., 1982). In consistently barring these suits for 
service- related injuries, the courts have also frequently questioned 
its wisdom and expressed dismay at the harsh results it so often 
yields in the particular case. For example. Judge Stern, of the 
U.S. District Court in New Jsersey, in dismissing the Jaffee 
complaint, closed his opinion by quoting an exchange which had 
occurred during the oral argument of the case — an exchange 
which the judge felt served to sum up "this unjust application 
of the Feres rule": 

Judge Stern: "As I read the law, it doesn't matter if they 
stood there and said, "one, two, three, left, 
right, left,' and marched them over a cliff... 
You'd be protected by Feres ?" 

Government attorney: "Yes your Honor." 

The interest of the National Association of Atomic Veterans 
in judicial review is twofold in nature. The NAAV feels the 
process by which the Atomic Veterans were denied VA benefits 
has had a negative impact on the agency's image. It can be 
argued that there has not been enough medical research to support 
the case of the Atomic Veterans. Nevertheless, it is also 
clear that there is not enough medical research to substatiate 
the final conclusions by the V.A. What is needed is a fair, 
judicious, judicial review of cases by an impartial third source. 



323 



- 4 - 



Moreover, the impact of a judicial review would be to affirm 
the faith of American veterans in the U.S. government. 

jvdiciplL review 

In the past, some people have begun the discussion about 
judicial review by asking "what is so wrong with the VA and the 
BVA that judicial review is needed?" NAAV submits to you that 
this is not the correct question. The United States has a Supreme 
Court which is a cornerstone of our democratic and constitutional 
society. There is also a multitude of other courts and tribunals 
where decisions are subject to review by the Supreme Court. However, 
as we all are well aware, the existence of a Supreme Court does 
not imply the inadequacy, arbitrariness, or wrongness of the 
lower courts. Nor does the existence of the judicial system 
imply the wrongness or illegality of the other branches. The 
existence of the courts and legal system of which they are a part 
is merely the way in which disputes are resolved in our society. 

NAAV's point, very simply, is that one need not point to 
errors, inadequacies, or other problems at the VA to argue for 
judicial review. The American system of government uses the 
judicial system to resolve disputes. Premising the argument 
about judicial review on debates about VA problems or errors leads 
to a very serious confusion of the real issues. Tying the debate 
about judicial review to a discussion of VA flaws leads to the 
serious problem of denominating people who favor judicial 
review as critics or even opponents of the agency. In reaction 
to this first mistake, people who want to support the agency, 
in response to the preceived attack, automatically become 



324 



- '5 - 



opponents of judicial review. Thus, people who want to be "friends" 
of the agency believe they are obligated to oppose judicial 
review. Unfortunately and intentionally, these people become the 
worst enemies of the agency they are trying to protect. This 
happens because their efforts to prevent judicial scrutingy lead 
to the belief in the minds of the general public that there 
must be something the agency is trying to hide. Many veterans 
unfortunately believe that there must be something wrong with the 
VA because people have fought to prevent court review. This 
chain of reasoning is wrong at every step because it starts with 
a false premise and continues to build on it. 

Unfortunately the prohibition against judicial review has 
led to a special status for the VA in the minds of veterans and the 
public. The product of the prohibition against judicial review is 
mistrust, suspicion and lack of confidence. The VA has been 
perceived as an agency beleaguered by criticism in the press and 
the media. Review by the courts would provide an explanation 
of decisionmaking and a ventilation of the frustrations of vetereins. 
There can be no doubt that the prohibition aginst judicial review 
has had a negative impact on the image of the agency. Because 
the agency will necessarily deny the claims of some veterans, it 
is necessary to provide the opportunity for release of frustration 
that judicial review provides. 

It is our contention that equating "friend" of the V.A. to 
opponent of judicial review, and proponent of judicial review to 
"enemy" of the VA is ill-advised, confused, and in the simplest 
of terms - wrong. The legal system is based on the idea that 
there are different viewpoints and ideas. 



325 



- 6 - 



Those of us who are lawyers know that as long as there are 
two lawyers there will be two different points of view. Judges 
and courts reverse themselves. The law is a fluid process of 
everchanging ideas, not an inflexible system where right and 
wrong reamin the same. The endless changes in the law reflects 
the changes in life itself and the variety of opinions that each 
human being has. Those of us who believe in a democratic emd 
free society would want it no other way. 

Judicial review results in wider participation by skilled 
advocates raising different points of view. Judicial review 
represents participation, diversity and opennes.. This concept 
that review is based on differing opinions rather than negative 
criticism is clearly recognized by the VA system itself. The 
agency has liberal administrative appeal rights and opportunities 
for re-considerations. It also has a variety of review processes 
that can take place by Central Office staff before the case goes 
to the BVA. VA Manual M21-1, in the chapter on administrative 
reviw, sets out these processes and allows in section .02 for 
advisory opinions and in section .06 for situations of differences 
of opinion. The VA administrative process is predicated on the 
acknowledgement that disagreements and changes of position are 
possible without anything being wrong with the system or the 
people in it. Judicial review is consistent with the VA system 
and its operations and one need not criticize, oppose, or change 
the VA for it to take place. 

Another argument against judicial review by those who continue 



326 



- 7 - 



to argue for the perpetuation of a system which gives veterans 
fewer rights than other citizens is the suggestion that judicial 
review will cause some great harm. This harm is however, never 
made specific. We have heard that it could cause the loss of 
informality at the VA that allegedly benefits the veteran. One 
need not resort to theory, legal or otherwise, to undercut this 
argument. We have participated in administrative hearings 
before numerous administrative bodies. All of these bodies have 
their decisions reviewed by courts. The proceedings are in no 
way more formal or adversarial than those of the BVA. 
The Ten Dollar Fee Limination 
Apart from the merits of judicial review of VA decisions, 
NAAV urges the Committee to take action to eliminate the ten 
dollar fee limitation. The limitation deprives veterans of 
a basic right that all citizens have, to seek professional 
assistance to help them sort through a complicated legal system. 
They should have the opportunity to go into the marketplace 
and pay for the legal services they need, without the statutory 
barrier that lingers from another historical era and set of 
circumstances. There can be no doubt that the ten dollar fee 
limitation acts as an almost complete exclusion of lawyers. It 
is a perfect example of inappropriate and unncecessary govern- 
ment regulation to deny citizens a free choice in the market 
place. Because of this indisputable effect, the fee limitation 
must be viewed for what it is: a prohibition against veterans 
securing legal representation. 



327 



- 8 - 



Some believe that removal of the fee limitation and 
introducing lawyers into the VA system would harm that agency's 
decisionmeiking process. Arguments against such representation 
suggest that lawyers would unnecessarily complicate the process, 
create an adversary relationship between veterans and the VA, and 
that simply suggesting the notion of lawyer representation 
before the VA is an indictment of current adjudication. system. 
Rather, the right to seek legal assistance should stand alone as 
an option for all veterans. 

The most importcuit function lawyers can serve at the VA, as 
they have at other federal agencies, is that of mediator between 
the veterans and the agency. The typical lawyer who advocates 
before an administrative agency does not fit the stereotypical 
image of adversarial trial- type litigator, the image created by 
some who oppose lawyer participation at the VA. Persons familiar 
with federal agency practice know that the role of an administra- 
tive advocate is far different from a courtroom litigator. The 
administrative lawyer frequently acts to explain a complex agency 
to a client, attempts to clarify issues for both the client and 
the agency, and endeavors to resolve claims with as .little 
acrimony as possible 

The lawyer's task of clarifying issues should be viewed as 
one of the most important and most promising results which would 
accrue to the VA. In scores of cases presented to the BVA, 
especially in situations involving Atomic Veterans, the veteran 
either had not raised the proper issues or he/she raised the 
correct issue but in a way that did not clarify the argument. 



328 



- 9._ 



In these cases, an attorney would have been cible to frame the 
issues carefully an succinctly to the VA. 

An even more pressing point against the argument that lawyers 
will somehow infect they system is to look at the VA itself. The 
BVA has fifteen sections each with three members. Fourteen of 
the fifteen sections have two attorneys on the three-member 
panels. In the fifteenth section all three members are lawyers. 
In addition, each section has seven or eight staff attorneys. In 
short, the entire decisionmaking process is monopolized by 
attorneys. Everything is done in legalistic terms. To argue that 
allowing the veteran to have a lawyer will infect the process with 
legalism ignores the reality of the process as it now exists. To 
send a person into a decisionmaking processes that is so totally 
dominated by lawyers and to deny that person access to a lawyer 
is the consummate injustice. Recognizing the situation for what 
it is can only lead to the question of how this injustice has 
been allowed to continue. 

Lawyers have been trained to approach issues in a certain 
manner, a manner that is used to adjudicate issues by all federal 
agencies as well as courts. To permit veterans to have paid 
legal representation would simply allow them to hire a profes- 
sional to present their case in a way best understood by the 
decisionmakers. Given the incredible caseload of the BVA, the 
clarifications of issues that a legal advocate can perform will 
assist the BVA and at the same time give the veteran informed 
access to the system. 

We also strongly believe that veterans with professional 
legal representation are better informed citizens who will be 
more satisfied with the VA system once their case has been 



329 



- 10 - 

decided. NAAV has witnessed a definite sense of satisfaction 
among Atomic Veterans who know that their case has been fully 
explored and presented carefully before the BVA. Even those 
clients who lose after all this work feel that justice has 
been done. It is this sense of basic fairness that is the 
intangible benefit of judicial review and legal representation, 
and which may be the most significant result. The ventilation 
provided by lawyer participation and judicial review will also 
raise public opinion about the VA. The prohibition of judicial 
review and attorney representation has caused many of the 
problems of the agency's image because there is no release for 
frustrations. There can be no doubt that eliminating these 
barriers will provide a great boost to the agency's public 
image and self-esteem. 



330 



WEBSTER S, ACMEY (1918-19531 

JAMES C 80WEN 
ROBERT W VALIMONT 
WILLIAM e MOVER 
SAMUEL G MOVER 
JOHN D. TRAINER 
WILLIAM E BENNER 
GORDON G ERDENBERGER 
ROBERT A NARAGON 
JOHN J HART 
WILLIAM T RENZ 
THOMAS L SUMTER 
MICHAEL S VALIMONT 
ANITA F ALBERTS 
WILLIAM H. FUSS 
HERBERT K SUDFELD, JR. 



LAW OFFICES 

POWER, BOWEN & VALIMONT 

102 N. MAIN STREET 

P. O. BOX 81 B 

DOYLESTOWN, PA (8901-0618 

Telephone 345-7500 
Area Code sis 



e-4 N MAIN STREET 

p o BOX seo 

5ELLERSVILLC, PA leBSO-OSaO 
Telephone 257-3e«i 



STATEMENT OF ROBERT W. VALIMONT ON BEHALF OF 
HIMSELF AND THE DEPARTMENT OF PENNSYLVANIA, THE AMERICAN LEGION 
BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 
COMMITTEE ON VETERANS AFFAIRS 
HOUSE OF REPRESENTATIVES 
JUDICIAL REVIEW 

Mr. Chairman and Members of the Subcommittee: 

I am a retired Brigadier General in the United States Air 
Force Reserve and a veteran of World War II and the Korean War 
serving in the grades of Private through Brigadier General with 
seven years of active service and some 26+ years of active 
Reserve Service. I have been very active in matters of veterans 
affairs and have served as Judge Advocate of The American Legion, 
Department of Pennsylvania, for 18 consecutive years. This statement 
is being furnished to you on behalf of myself in my individual 
capacity as a veteran, a lawyer, a citizen, and also on behalf of 
the Department of Pennsylvania, American Legion. It is with some 
reticence that this statement is being made to you because the 
position of myself and the Department of Pennsylvania is not in 
accord with the national Legion policy adopted at the last Legion 
Convention on Judicial Review. 

We in Pennsylvania respect the position that was adopted at 
the National Convention but we also strongly believe that the time 
for Judicial Review for veterans has come. We further believe that 



331 



the concern expressed in the Ohio resolution No. 141 of the past 
Convention of the American Legion has been met and that proposed 
legislation in our opinion fully meets all of the concerns 
addressed by the said resolution and by members of the American 
Legion who may have a different view. 

It is also understood that the matter of Judicial Review 
continues to be considered by the national organization and that 
it is expected that it will again be considered at the National 
Convention in Seattle in August of 1983. 

With this in mind, the matter was again considered by the 
Department of Pennsylvania at its annual convention held in 
Pittsburgh this month. Pennsylvania, as you may know, has the 
largest membership of any Department in the entire American Legion. 
Its members total approximately 250,000 and constitute approximately 
10% of the entire Legion membership. The Pennsylvania membership 
at its convention in July of this year unanimously adopted a 
resolution in support of Judicial Review. A copy of that resolution 
is appended hereto. 

In support of the position adopted by the American Legion 
Department of Pennsylvania, I would like to comment on the objec- 
tions that were raised in the Ohio resolution and point out as to 
how we feel that proposed legislation would meet these objections. 
The objections raised in the Ohio resolution were that: 

1. The system of Judicial Review would create an adversary 
relationship with the government and would require the claimant 
to adhere to the rules of evidence in support of the claim which 



332 



is not presently the case within the VA adjudication system. 

2. Under the doctrine of res judicata a court decision 
would preclude the reopening of a claim on the veteran's part 
as contrasted by existing VA rules and practices which permit 
almost unlimited reconsiderations, and 

3. The prospect of the claimant paying to obtain benefits 
is in contravention to the American Legion philosophy. 

In answer to these contentions, the legislation as passed 
by the Senate would codify certain adjudication procedures 
provided by existing VA regulations and would be intended to 
insure that the VA's present practices of making every reasonable 
effort to assist a claimant and in construing the evidence 
favorably to the claimant are not abandoned in response to the 
providing for Judicial Review. There is no reason to believe 
that this would in any way place the veteran in an adversary 
relationship with the government. The existing system would 
remain the same through the Veterans Administration and the right 
to appeal would be only for those whose claims have been finally 
denied by the Veterans Administration. The fear that a veteran 
will receive better treatment by the VA and better consideration 
by the VA when there is no right to appeal is hard to understand. 
It would seem that it could arise only if the VA would be 
practicing retribution because of the veteran being given a right 
that basically all other persons now have, namely access to the 
courts. We in Pennsylvania do not believe that the Veterans 
Administration would ever stoop to such a practice. Inasmuch as 



333 



it is only in the case of an adverse decision by the VA against 
the veteran that there would be an appeal, it is hard to conceive 
how the veteran would be hurt by being given a right to appeal 
from something which had already been decided against him. The 
Veterans Administration in hearings before the Senate last year 
in the case of Senate Bill 349 estimated that 10% greater 
benefits would result. 

Proposed legislation would provide that presentation before 
the Veterans Administration would remain the same and therefore 
no strict rules of evidence would apply. There is no new hearing 
on appeal and existing liberality in presenting the claim before 
the Veterans Administration would apply. 

The fear expressed that a court decision would preclude a 
reopining of a claim on the veteran's part as contrasted by 
existing rules and practices which permit reconsiderations has 
been amply taken care of by proposed legislation. For example. 
Senate Bill 636 specifically provides that the right to Judicial 
Review shall in no way diminish the right of the Board of 
Veteran's Appeals to authorize the reopening of a claim and a 
review of the former decision. Clearly the doctrine of res 
judicata does not apply under proposed legislation. 

The very stringent limitations on payments of attorney's 
fees as embodied in S 636, we believe, is not abhorrent to any 
philosophy that can be maintained by veterans. No fee would be 
payable in excess of $10.00 for any claim resolved prior to or 
at the time that a final decision of the Administrator is first 



25-550 0—83 22 



334 



rendered. Only after such time that the veteran has already had 
a decision rendered against him by the Administrator would there 
come into play any fee and the Administrator would be required 
to approve the fees within the constraints set forth in the 
legislation. In the case of fees where Judicial Review is accorded, 
the court is permitted to determine and allow a reasonable fee 
for the representation by the attorney in carrying out Judicial 
Review. It must be borne in mind that for such an award to be 
made, the veteran must have had his case finally decided against 
him at the Veterans Administration level and then in the case of 
a favorable determination, the fee may not exceed 2 5% of the total 
amount of past due benefits awarded. It is difficult to compre- 
hend how a veteran is financially harmed in such a case where 
the veteran is guaranteed at least 75% of benefits that the 
veteran had already been totally deprived of except for the 
successful appeal. The limitation of $750 as a fee that might 
be allowed in the event of the loss of the case in the event of 
Judicial Review and the limitation of 25% in the case of a 
successful Judicial Review will certainly prevent frivolous cases 
being taken by any attorney. These provisions, however, may 
accord a veteran representation that the veteran would not other- 
wise be able to attain. 

In summary, to deny a veteran Judicial Review in our opinion 
cannot be justified on any rational basis. We believe that the 
according of this right of Judicial Review will not result in the 
Veterans Administration unfairly administering the law just 
because it is subject to Judicial Review. We likewise have 



335 



confidence in our court system so that in reviewing the decisions 
of the Veterans Administration even handed justice will be attained. 
It must also be remembered in this respect that only those matters 
already decided adversely by the Veterans Administration to the 
claim of the veteran will be before the court on review. The 
interest of the veteran in any court action can only be enhanced 
by the court review and not harmed as the veteran has already lost 
at that level. 

In this statement, I have not commented upon the technical 
aspects of Judicial Review but mostly the philosophy and how we 
feel that the proposed legislation meets the objections that 
have previously been raised by the American Legion. I personally 
feel that the "arbitrary, capricious, and abuse of discretion" 
test as opposed to the "substantial evidence" standard imposes 
on the veteran on matters on appeal a burden greater than that 
imposed ordinarily in the matters of Judicial Review for other 
citizens. Accordingly, I would recommend that consideration be 
given to the provision for a "substantial evidence" standard 
in your consideration of the legislation. 

We wish to thank the Subcommittee for receiving this statement. 



ENCLOSURE: Pennsylvania Resolution 65-24 adopted at Department 
Convention July 14-16, 1983. 



336 



F^. ^ i^f-^f 



RESOLUTION 

WHEREAS, under interpretation of existing law, there 
is no redress of claims by any veteran in the Courts of the 
United States; and 

WHEREAS, existing law does not afford any veteran 
judicial review from a decision of the Veterans Administration 
denying benefits to any veteran; and 

WHEREAS, it is deemed that the view that veteran's 
benefits are mere gratuities and that veterans have no interest 
in or right to such benefits is not a tenable position; and 

WHEREAS, justice and equity demand that veterans be 
served with compassion, fairness and efficiency and that every 
veteran is entitled to receive from his government every benefit 
and service to which he or she may be entitled under law; and 

WHEREAS, the United States Senate has passed and sent 
to the House a bill in the form of Senate Bill 636 by amending and 
adding the same to House Bill 2936 which would provide limited 
judicial review for those veterans aggrieved by an adverse decision 
of the Veterans Administration; and 

WHEREAS, similar legislation is presently pending in 
the House of Representatives and hearings on the same are 
scheduled for the month of July of 1983; and 



337 



WHEREAS, it is deemed that the scope of review as embodied 
in S-636 will go a long way toward bringing about fundimental 
fairness to veteran claimants in providing limited access to 
Courts for judicial review and said bill fairly meets any ob- 
jections expressed against the according of such rights. 

NOW, THEREFORE, BE IT RESOLVED by the American Legion, 
Department of Pennsylvania, in Convention assembled in Pittsburgh, 
Pennsylvania on July 14-16, 1983, That: 

FIRST: The American Legion, Department of Pennsylvania, 
petition the Congress of the United States to provide for judicial 
review from decisions of the Veterans Administration adverse to 
claims of such veteran and that the American Legion, Department 
of Pennsylvania, support the enactment of legislation as embodied 
in S-636 and as reported to the United States Senate in Report No. 
98-130 and that the Department Judge Advocate be authorized to 
convey the views of the Department of Pennsylvania to the House 
Veteran's Affairs Committee. 

SECOND: The American Legion, Department of Pennsylvania, 
recommend to the National organization for adoption at the 
National Convention a like resolution. 



338 



Provisions of H.R. 2936, As Amended, Relating to Payment of Attorneys' Fees 



On June 15, 1983, the Senate passed S. 636 to provide judicial review of 
veterans claims and to revise attorneys' fees. S. 636 was laid upon the table, 
and the Senate then took up H.R. 2936, struck everything after the enacting 
clause, and substituted the text of S. 636. H.R. 2936, as amended, was passed 
by the Senate and returned to the House on June 15. 

Title IV of H.R. 2936, as amended, would revise the present title 38 limi- 
tation of $10 for claimants' attorneys' fees by authorizing reasonable attorneys' 
fees, within certain limits, for representation of individuals before the VA 
and for representation in a case appealed to court under the judicial review 
provisions added to title 38 by this title of the Committee bill, with a 
specified limitation in cases in which the matter is resolved in a manner un- 
favorable to the claimant. Included in title IV are provisions that would: 

1. Retain the $10 limitation on the amount an attorney may receive 
for services rendered prior to a final BVA decision, while removing an 
ambiguity with respect to whether that limitation applies under current 
law to attorneys "recognized" for practice before the VA. 

2. Permit the Administrator to approve a reasonable attorneys' fee 
for representation within the VA after a final BVA decision (where, for 
example, a case remains before the VA for reconsideration or for reopening 
on the basis of "new and material evidence" offered under section 4004(b) 
of title 38, United States Code, as amended by title I of the Committee 
bill) , up to a maximum of $500 or, if the claimant and attorney have 
entered into a contingency-fee agreement, no more than 25 percent of 

any past-due benefits awarded the claimant. 

3. Authorize the Administrator to increase the $500 maximum limitation 
in future years to reflect changed economic conditions. 

4. Authorize the Administrator to disregard the $500 limitation in 
an individual case Involving extraordinary circumstances warranting a 
higher fee. 

5. Allow a reviewing court, in a case appealed from the VA, to approve 
a reasonable attorneys' fee. For cases -not resolved in a manner favorable 
to a claimant, the maximum a court could approve would be $750. For cases 
resolved in a manner favorable to a claimant, the only limitation on the 
amount of the fee that a court could approve would be that it must be rea- 
sonable, or that, if a claimant and an attorney had entered into a contingent- 
fee agreement, the fee approved by the court could not exceed 25 percent of the 
total amount of the past-due benefits. 

6. Authorize the VA to make payment to an attorney from past-due 
benefits, but preclude the VA from making payments from benefits received 
subsequent to the date of the decision entitling the veteran to benefits. 

7. Limit the applicability of the attorneys' fee provisions to cases 
involving claims for benefits. 

8. Define, for the purpose of attorneys' fees provisions, a claim as 
being "resolved in a manner favorable to the claimant" when any or all of 
the relief sought is granted. 

9. Authorize a court to award to a prevailing party, other than the 
Administrator, reasonable attorneys' fees and costs in accordance with the 
provisions of the Equal Access to Justice Act under which such an award may 
be made unless the court finds that the position of the United States was 
substantially justified or that special circumstances make an award unjust. 

10. Provide criminal penalties for willfully and intentionally de- 
frauding a VA claimant. 



339 



July 1, 1983 



Honorable John A. Svahn 
Commissioner, Social 

Security Administration 
6A01 Security Boulevard 
Baltimore, MD 21235 

Dear Mr. Commissioner: 

The Subcocmiittee on Oversight and Investigations Is currently 
studying the issue of judicial review of veterans' claims. As you 
may know, legislation allowing judicial review has been reported 
by the Senate for the last few years; however, the House Committee 
has never favorably considered such legislation. The Subcommittee 
is now in the process of gathering information on the potential 
effects that passage of this type of legislation might have on the 
VA system as well as on the Federal Court system. 

Although we realize that the processing of Social Security 
disability claims and the processing of veterans claims may be some- 
what different, we are Interested in what effects judicial review 
has had on the Social Security Administration. It would be helpful 
to us to have information concerning the appeals process used by 
the SSA, as well as annual statistics on the number and disposition 
of cases which are considered at each level of the process, dLndudlng 
the Federal Court level. Any other materials you believe might be 
useful will also be appreciated. 

If you have any questions, please contact Beatrice Eld of the 
Subcommittee staff at 225-3541. 

Your cooperation in providing a prompt response to this request 
will be appreciated. 

Sincerely, 



G. V. (SONNY) MONTGOMERY 
Chairman 




340 



DEPARTMENT OF HEALTH & HUMAN SERVICES 



Social Security Administration 



Refer to SRP 



Baltimore MD 21 235 



SEP 2 6 1983 



oEP 281983 



Honorable G.V, (Sonny) Montgomery 
Cliairman, Committee on Veterans' Affairs 
House of Representatives 
Washington, D.C. 20515 

Dear Mr. Chairman: 

This is in response to your letter of July 1 to former Commissioner Svahn requesting 
information concerning the appeals process used by the Social Security 
Administration (SSA). Please accept my apology for the delay in responding. 

I have enclosed some materials which describe the appeals process for claimants 
seeking benefits under the Social Security Act and statistics on the volume and 
disposition of cases considered at each level of the process. As you can see, the Office 
of Hearings and Appeals (OHA), which has responsibility for administering the major 
portion of SSA's appeals process, is faced with a dramatically increasing adjudicative 
workload, particularly in new court actions. During Fiscal Year 1982, OHA's court 
actions increased by 33 percent over Fiscal Year 1981 from 9,055 to 12,0*5. Based on 
current data, it appears that in Fiscal Year 1983 over 20,000 new civil actions will be 
filed. The great majority of these cases involve claims for Social Security disability 
benefits. 

This increased workload Is severely taxing the resources of OHA. The cost to the 
agency for providing a hearing before an Administrative Law Judge (AL3) is approxi- 
'Tniitely $556 per case. A request for review by the Appeals Council adds a further cost 
to the agency of approximately $230 per case. The total cost of processing a case that 
Is remanded to the Appeals Council from a Federal Court is approximately $1,818. 

During last fiscal year, AL3 dispositions adverse to claimants totaled 1*0,199 cases. 
During this same time, approximately 10 percent of all unfavorable actions by AL3's 
resulted in civil actions. To put this in further perspective, out of 1*0,199 unfavorable 
dispositions made by ALJ's during Fiscal Year 1982 less than 1 percent, 1,1*5, were 
overturned by district courts. 

It Is difficult to say with certainty to what extent judicial review has been detrimental 
to SSA's administration of the Social Security program. However, it is clear that court 
actions in Social Security cases have caused the Congress and SSA concern at various 
times. It was because of this concern that the Congress included in the Social Security 
Amendments of 1967 a provision designed to tighten the definition of disability for 
purposes of determining eligibility for Social Security benefits. In its report on the 



341 



1967 amendments the Committee on Ways and Means pointed out that such a provision 
was necessary because the previous definition of disability had become eroded over 
time, at least partially because of "a growing body of court interpretations of the 
statute which, if followed in the administration of the disability provisions, could result 
in substantial further increase in costs in the future." More recently, there have been 
instances in which circuit courts throughout the country have rendered different, and 
often conflicting, opinions on the same subject, thus severely hampering SSA's ability to 
uniformly administer a national program. 

I hope this information is helpful to your Committee. Please let me know, if we can 
provide you with any further information concerning the appeals process within SSA. 



Sincerely 



Enclosures 




Director, Office of Legislative 
and Regulatory Policy 



342 

TAB A 



Chapter 20 

Determinations and Appeals 



2000. Appeals process, general. 

2001. Time limits for requesting review. 

2002. Initial determination defmed. 

2003. Actions which are not initial determinations. 

2004. Reconsideration. 

2005. Reconsideration process. 

2006. Hearing by administrative law judge. 

2007. How administrative law judge may dispose of case. 

2008. Notice of time and place of hearing. 

2009. Assistance of Social Security office available. 

2010. Administrative law judges' decisions. 

2011. Review by the Appeals Council. 

2012. Procedure. 

2013. Extension of time for filing request for reconsideration, hearing, or review. 

2014. Time limit for reopening final determinations. 

2015. Representation of claimant. 

2016. Fees that may be charged by claimant's representative. 



2000. There is a specific appeals process before the Social Security 
Administration to be followed by a claimant, or a claimant's appointed 
representative if there is disagreement with a decision concerning a 
claim for benefits. 

• First, the claimant or representative must request that the 
initial determination (decision) be reconsidered. A 
reconsideration is a reexamination of the administrative 
records. 

• If there is still disagreement with the reconsidered 
determination, the claimant or representative may request a 
hearing before an administrative law judge. 

• If the person disagrees with the administrative law judge's 
decision, he or she may request a review of the decision by the 
Appeals Council of the Office of Hearings and Appeals, which 
has the discretion to deny or grant a review. Also, the 
Appeals Council may, on its own initiative, review an 
administrative law judge's decision. 

• After Appeals Council review (or denial of review) a person 
who is still dissatisfied may file a ciinl action in the U.S. 
District Court, asking for a review of the final administrative 
(i.e., Appeals Council) decision. 



315 • 



343 



This chapter provides a general description of these various 
independent reviews of a case provided for in the appeals process, and 
explains the rules for reopening determinations and decisions. There 
are exceptions to these rules under certain circumstances. Where the 
exceptions apply, individuals are made aware of them along with a 
decision or determination. 



2001. There are specified time limits for requesting each review in 
the administrative appeals process. If the claimant or the claimant's 
representative does not request the next step within the prescribed 
time limit (unless a longer period is allowed for good cause), the 
determination or decision becomes fmal and binding on the parties 
affected, except as provided in § 2014. 

If the time limit for requesting review ends on a Saturday, Sunday, 
legal holiday, or Federal nonwork day (by statute or Executive Order), 
the time limit is extended to the next following work day. 

A. An initial determination becomes fmal unless reconsideration is 
requested within 60 days from the date notice of the initial 
determination is received by the claimant or the claimant's 
representative., (See § 2004.) 

B. A reconsidered determination becomes fmal unless a hearing is 
requested within 60 days from the date notice of the 
reconsidered determination is received by the claimant or the 
claimant's representative. (See § 2006.) 

C. A decision of the administrative law judge becomes final unless review 
of the decision by the Appeals Council is requested within 60 
days from the date notice of the administrative law judge's 
decision is received by the claimant or the claimant's 
representative, or unless it is reviewed by the Appeals Council on 
its own motion. (See §2011.) 

D. A person may obtain a court review of a denial of a request for 
Appeals Council review or of a final decision of the Appeals 
Council by filing a civil action within 60 days from the date 
notice of the denial or the decision is received by the claimant or 
the claimant's representative. The U.S District Court generally 
has no jurisdiction until the Appeals Council has made its 
decision or denied the request for review. (See § 2012.) 

If a civil action is filed, a United States District Court will review the 
Social Security Administration's decision, and the decision of the 
court, if not appealed, will be final. If the District Court's decision is 
appealed, it is subject to further review and affirmance, modification, 
or reversal by a Court of Appeals or the Supreme Court. (See § 2013 
concerning granting of extension of time in filing appeals.) 



316 



344 



2002. An initial determination is a formal decision affecting 
monthly benefits, the lump-sum death payment, a period of disability, 
a Social Security earnings record, or entitlement to hospital insurance 
or medical insurance. Such decisions include: 

A. Awards of monthly benefits or the lump-sum death payment. 

B. Recomputation of monthly benefits. 

C. Disallowance of benefit claims. 

D. Denials or approvals of applications to establish a period of 
disability. 

E. Determinations on deductions from benefits. 

F. Determinations with respect to the termination of benefits or a 
period of disability. 

G. Determinations with respect to continuing entitlement to, or 
reinstatement of, benefits. 

H. Determinations as to whether benefits should be paid to another 

on behalf of the person entitled to them. 
I. Adjustment or recovery of overpaid or underpaid amounts. 
J. Revisions of Social Security earnings records. 
K. Determinations as to support by the worker of a parent. 
L. Determinations about entitlement to hospital insurance. 
M. Determinations about entitlement to medical insurance. 
N. Determinations regarding disability and the amount of 

supplemental security income payments. 
O. Determinations with respect to what constitutes income and 

resources in deciding the amount of supplemental security 

income payments. 

Written notice of a determination will be mailed to the applicant or 
other party concerned. This notice may be an award certificate, a 
disallowance letter, or a letter explaining the decision. 

2003. Administrative actions which are not initial 
DETERMINATIONS are not subject to appeal but may receive 
administrative review. Such actions include: 

A. Joint payment of total benefits to two or more individuals in the 
same family. 

B. Withholding of part of a monthly benefit to recover an 
overpayment. 

C. Authorization approving the amount of fee that may be charged 
or received by a represenutive for services before the Social 
Security Administration. 

D. A presumptive finding of disability and eligibility for 
presumptive disability payments in the supplemental security 
income program. 

317 



345 



2004. Reconsideration of an initial determination may be 
requested by the claimant, by another person whose benefit rights are 
harmed by the determination, or by the appointed representative of 
either. Also, an initial determination may be reexamined by the Social 
Security Administration on its own initiative, as indicated in § 2014. 
The reconsideration must be requested in writing by the person (or the 
person's representative) within 60 days from the date notice of the 
initial determination is received. Date of receipt of the notice is 
presumed to be the fifth day following the date of mailing of the notice 
of initial determination unless it can be shown the notice was received 
later or not at all. The request can be made on a special form available 
at any Social Security office or by letter. 



2005. The reconsideration process is a thorough and 
independent review of the case. It is based on the evidence 
submitted for the initial determination plus any further evidence that 
the claimant may submit in connection with the reconsideration. A 
reconsideration is made by a member of a different staff from the one 
that made the initial determination and who is specially trained in the 
handling of reconsiderations. (See § 124.) 



2006. A hearing by an administrative law judge may be requested by a 
claimant or appointed representative who disagrees with the 
reconsidered determination or by a person who can show that the 
reconsidered determination will harm the person's rights under the 
Social Security Act. The hearing is conducted by an administrative law 
judge of the Office of Hearings and Appeals. 

A request for a hearing should be made in writing within 60 days 
from the date notice of the reconsidered determination is received. 
Date of receipt of the notice is presumed to be the fifth day following 
the date of mailing of the notice of reconsidered determination unless 
it can be shown the notice was received later or not at all. The request 
can be made on a special form available at any Social Security office or 
by letter and should be filed with that office, with an administrative law 
judge, or with the Appeals Council. The hearing is a thorough review 
of the record. The claimant or the claimant's representative may 
appear in person. 

The decision of the administrative law judge is made on the basis of 
the evidence already submitted, any additional evidence the claimant 
presents, evidence that is otherwise submitted, and any testimony 
given at the hearing. 



318 



346 



2007. The administrative law judge may: 

A. Dismiss the case if: 

1. The claimant requests it; or 

2. The claimant does not appear at a scheduled hearing, or 
dies; or 

3. The request was not filed within the time limit; or 

4. The person was not a party to the reconsideration; or 

5. There has been a previous determination or decision as to 
the rights of the claimant on the same facts and issues now 
present, which has become final; or 

B. Hold a hearing on the case and issue a decision. 

2008. Notice of the time and place of the hearing is sent by the 
administrative law judge to the parties to the hearing at least 10 days 
before the date set for the hearing, to allow time to prepare for it. The 
hearing before the administrative law judge usually is held in the area 
where the person requesting the hearing resides, although the person 
may be required to travel up to 75 miles. An administrative law judge 
has authority to issue subpoenas requiring the attendance and 
testimony of witnesses and the producing of any evidence that relates 
to the issues involved in the hearing. 

There is no provision for holding a hearing outside the U.S. The 
U.S. is defined as the 50 states. District of Columbia, Puerto Rico, 
Virgin Islands, Guam, American Samoa, and the Northern Mariana 
Islands. A person outside the U.S. who wishes a review by an 
administrative law judge may have a review made on the record — with 
no one appearing in person — or the person may travel to the U.S. at 
his or her own expense. 

2009. The Social Security office is ready to help the claimant (see 
§ 118) or other interested party to prepare for the hearing by: 

A. Explaining the issues involved in the case. 

B. Explaining how the hearing will be conducted. 

C. Telling the claimant how to arrange for the appearance of 
witnesses. 

D. Advising the claimant how to obtain any documents that may be 
needed for the presentation of the case. 

A person requesting a hearing may appear personally at the hearing 
and be represented by an attorney or by any other individual selected 
by the person; however, it is not necessary that the person be 
represented, or appear in person. If the claimant or the claimant's 
representative, or both, do not appear personally, the administrative 
law judge will make a decision on the basis of the evidence already 



319 



347 



submitted, any additional evidence presented, and the testimony of any 
witnesses. 



2010. After the hearing, the administrative law judge will 
USUALLY ISSUE "A WRITTEN DECISION afTirming, revising, or reversing 
the reconsidered determination. The administrative law judge may also 
certify the case with a recommended decision to the Appeals Council 
for decision (though this would happen very infrequently). All parties 
to the hearing are notified of the administrative law judge's decision 
and the reasons for it. 



2011. A REVIEW BY THE APPEALS COUNCIL may be requested if a party 
to the hearing is not satisfied with the action of the administrative law 
judge whether a decision or dismissal. The Council will grant, deny, or 
dismiss the request for review as it decides is proper. 

A request for a review by the Appeals Council must be in writing and 
must be filed within 60 days from the date notice of the administrative 
law judge's action is received by the claimant or the claimant's 
representative. The request may be filed with any Social Security 
office, an administrative law judge, or the Appeals Council and may be 
made either by letter or on a special form available at any Social 
Security office. (See § 1 18.) 

Within 60 days from the date of the administrative law judge's 
decision the Appeals Council may on its own motion reopen the claim 
for review or for the purpose of dismissing the party's request for 
hearing for any reason for which such request could have been 
dismissed by the administrative law judge. 

2012. The appeals council will notify the claimant as to whether 
or not it will review the case. If the Council decides to review the case, 
the claimant may request an appearance before the Appeals Council 
(either personally or through a representative), for the presentation of 
oral arguments. If the Appeals Council determines that a significant 
question of law or policy is presented or that oral arguments would be 
beneficial in rendering a proper decision, the request will be granted. 
The claimant may also file written briefs in support of his claim. The 
Appeals Council will notify the claimant of its action in the case. 

A claimant dissatisfied with the decision or denial of the request for 
review by the Appeals Council may bring suit in a U.S. District Court. 
The civil action in the court must be filed within 60 days from the date 
notice of the Appeals Council decision or denial of the request for 
review is received by the claimant or appointed representative. The 



320 



348 



Court's jurisdiction is limited to rendering a decision on the record 
and the Secretary's findings of fact are binding on the Court, if 
supported by substantial evidence. 



2013. An extension of time may be granted for filing a request 
for reconsideration, hearing, or review by the Appeals Council, if the 
claimant establishes good cause for failing to file the request within the 
appropriate time limit. The decision as to whether or not to grant the 
extension is made by the office responsible for making the 
reconsideration, the administrative law judge, or the Appeals Council, 
depending upon who has jurisdiction of the case. The Appeals Council 
may grant an extension of time for filing a civil action in a U.S. District 
Court, where good cause exists for failure to file within the appropriate 
time. 



2014. Even though a determination or decision has become final 
it may be reopened and revised (by the reviewing office, administrative 
law judge, or Appeals Council) within the time limitations and under 
the conditions as provided below. The following sections discuss the 
time limitations on the reopening of determinations or decisions exc^t 
those dealing with a Social Security earnings record. 

A determination or decision which has become final (see § 2001) 
may be reopened and revised: 

A. Within 12 months from the date of notice of the initial 
determination for any reason. 

B. After such 12-month period but within 4 years (2 years in the 
supplemental security income program) from the date of notice 
of the initial determination, if there is good cause for reopening 
it. "Good cause" is deemed to exist where: 

1. New and material evidence is furnished after notice to the 
party to the initial determination is given; or 

2. A clerical error was made in figuring the benefit amount; or 

3. It is clear that, based on the evidence previously submitted, 
the determination was erroneous. 

Note: "Good cause" does not exist where the only basis for 
reopening the determination or decision is a change of legal 
interpretation or administrative ruling on which the determination or 
decision was based. 

C. At any time if: 

1 . The determination or decision was based on fraud or similar 
fault of the claimant or some other person; or 

2. Someone else makes a conflicting claim on the same Social 
Security earnings record; or 



321 



349 



3. A person believed dead, and on whose Social Security 
earnings record a person was awarded benefits, is found to 
be alive; or 

4. The death of the individual, on whose earnings record a 
party's claim was denied for lack of proof of death, is proved 
by reason of the person's unexplained absence for a period 
of 7 years or more; or 

5. The Railroad Retirement Board has awarded duplicate 
benefits on the same earnings record; or 

6. World War II or post-World War II wage credits were not 
credited because another Federal agency (other than the 
Veterans Administration) erroneously certified that it had 
awarded benefits on the basis of the same military service; or 

7. World War II or post- World War II military wage credits had 
been awarded by Social Security Administration, but notice 
is later received that a Federal agency (other than the 
Veterans Administration) has awarded benefits based on the 
same military service; or 

8. The worker's earnings record now shows that a prior 
disallowance for lack of insured status was incorrect; or 

9. The determination or decision is unfavorable to a party 
thereto and is incorrect because of a clerical error or error 
on the face of the evidence on which it was based. 

Action reopening the determination or decision under either (A) or 
(B) above must be started within the time limit specified. 

The "at any time" rule (C) above in the supplemental security 
income program* only applies if fraud or similar fault is involved. 

2015. The claimant may be represented by an attorney or any 
other qualified person at any or every step in the proceedings before 
the Social Security Administration, i.e., initial determination, 
reconsideration, hearing, and/or Appeals Council review. No person 
may act as representative of a claimant if that person has been 
suspended or disqualified by the Social Security Administration from 
representing Social Security claimants or if he or she is otherwise 
prohibited by law from acting as a representative . 

Only named individuals may act as representatives of claimants. A 
qualified member in a firm, labor union, or other organization may act 
as representative of a claimant, but the firm, labor union, etc. will not 
be recognized as a representative. 

To appoint a representative, the claimant must do so in writing over 
his or her signature, preferably on a special form available at any Social 
Security office. If the representative is not an attorney, he or she must 



322 



350 



also accept the appointment in writing, and the appointment and 
acceptance must be filed with a Social Security office. 



2016. The amount of the fee that an attorney or other person 
MAY CHARGE THE CLAIMANT for representation in matters before the 
Social Security Administration must be approved by the Social Security 
Administration. Upon receipt of a written petition from the 
representative stating the fee requested and giving a detailed 
description of each type of service rendered with the amount of time 
spent on each, as justification for the fee desired, the Social Security 
Administration will fix the amount of a fee for services. Whether the 
decision on a claim results in payment to the claimant or not, if a fee is 
sought, the petition for a fee for services rendered should be submitted 
as soon as possible after all proceedings are complete. Where an 
attorney seeks direct payment of the authorized fee from benefits due, 
a fee petition or notice of intent to submit a fee petition must be filed 
with the Social Security Administration within 60 days of notification of 
a favorable decision. Both the claimant and the representative will be 
notified of the amount authorized and will be given a reasonably 
complete explanation as to how the Social Security Administration 
arrived at the authorized fee. 

The amount of the fee authorized by the Social Security 
Administration is determined principally with regard to the nature and 
extent of the services rendered. However, the Social Security 
Administration is restricted as to how much of a fee may be paid the 
attorney directly out of past-due benefits. 

When an attorney has rendered services in representing a claimant 
before the Social Security Administration in a claim for cash benefits 
and the Social Security Administration has made a favorable decision 
which resulted in the claimant and the claimant's family becoming 
entitled to past-due benefits, a part of the past-due benefits may be 
certified for direct payment to the attorney as compensation for 
services. Payment to the attorney is limited to whichever of the 
following is the smaller: 

A. 25 percent of the claimant's and family's past-due benefits; or 

B. The amount which the Social Security Administration has fixed 
as a reasonable fee; or 

C. The amount of fee agreed upon between the claimant and the 
attorney. 

If the total amount of the authorized fee cannot be certified out of 
past-due benefits, the attorney must look to the claimant and family for 
the balance. 



323 



351 



If a court renders a judgment favorable to a Social Security claimant, 
the court may allow as part of its judgment a reasonable fee for the 
attorney representing the claimant in court. The court-allowed fee 
cannot exceed 25 percent of the claimant's and family's past-due 
benefit resulting from the favorable judgment. The Social Security 
Administration may certify the amount of the fee allowed by the court 
for payment directly to the attorney out of past-due benefits. 

The law does not provide for direct payment to representatives for 
services rendered in connection with a claim for supplemental security 
income payments. Nevertheless, any fees for services must be 
approved by the Social Security Administration. 



324 



352 



TabB 



Volume and Disposition of Cases at Various Levels of the Appellate Process 
Titles n (OASDI) and XVI (SSI) 



FY 1980 



FY 1981 



FY 1982 



Reconsiderations 
Reversals 
Affirmations 



592,755 

77,5f2 

515,213 



(13%) 
(8796) 



622,800 

7'»,512 

548,288 



(12%) 
(88%) 



638,834 

71,926 

666,908 



(11%) 
(89%) 



Hearings 229,280 259,935 293,031 

Reversals 128,541 (56%) 143,928 (55%) 155,327 (53%) 

Affirmations 100,739 (44%) 116,007 (45%) 137 ,7 OH (47%) 

Appeals Council Reviews 48,717 53,718 63,246 

Reversals 2,363 (5%) 2,571 (5%) 2,777 (4%) 

Affirmations!/ 42,551 (87%) 47,095 (88%) 55,665 (88%) 

Remands 3,803 (8%) 4,052 (7%) 4,804 (8%) 

U.S. District Court Actions 7,715 8,378 9,378 

Reversals 889 (11%) 960 (11%) 1,136 (12%) 

Affirmations 3,848 (50%) 4,588 (55%) 4,592 (49%) 

Remands^/ 2,970 (39%) 2,830 (34%) 3,650 (39%) 

(New Cases Filed) 7,814 9,055 12,045 



U Includes tiiose cases which the Appeals Council declined to review. 
2/ Approximate. 



353 



OHA 
FACT SHEET 

for Fiscal Year 1982 



Social Security Administration 

Office of Hearings and Appeals 
SSA Pub. No. 70-039 
March 1983 



354 

Requests for Hearing 

FY 1982 



Title II 

DIB 

RSI 
Title XVI 
Concurrent 

title Il/title XVI 
Title XVIII 
Title IV (B.L.) 

Total 



Number 



175,789 

5.433 

53,112 

82,773 

3,419 

154 

320,680 



Receipts 
Change trooi 



FY 1981 




Concurrent 

Title Il/tltle xr. 

26t 



Dispositions 













Change from 




Dismissed 


Denied 


Allowed 


Total 


FY 1981 


Title 11 












DIB 


12,038 ( 8*) 


53,251 (34*) 


88,843 (58*) 


154,132 


+ 22* 


RSI 


999 (19*) 


2,793 (52*) 


1,587 (30*) 


5,379 


+ 8* 


Title XVI 


7,020 (13») 


21,886 (41*) 


24,579 (46*) 


53,485 


+ 3* 


Concurrent 












title Il/title XVI 


7,989 (10*) 


31,728 (40*) 


40,318 (50*) 


80,035 


+ 10* 


Title XVIII 


1,064 (32t) 


1.318 (39*) 


968 (29*) 


3,350 


+ 33* 


Title IV (B.L.) 


25 (15*) 


88 (53*) 


54 (32*) 


167 


+ 6* 



Total 


29.135 (10*) 111,064 (37*) 156.349 (53*) 


296,548 


t 13* 


Pending 




Change from 
Number 09/30/81 







Title 11 










DIB 


84.200 


+ 


35* 




RSI 


3,019 


t 


2* 




Title XVI 


24,398 


4- 


2* 




Concurrent 










title Il/title XVI 


39,469 


t 


7* 




Title XVIII 


1,723 


+ 


4* 




Title rv (B.L.) 


87 


+ 


13* 


Title XVIII 
1% 


Total 


152,896 


+ 


19* 


Title IVl 
16« 




Concurrent 

Title Il/tltle XVI 

261 



Processing Times and Age of Pending 
Change from 



FY 1982 



FY 1981 
t 10 days 



Mean Processing Time 174 days 

Mean Age of Pending (EOT) 12A days t 5 days 

Percentages may not add up to 100 due to rounding. 



355 



Reviews Before Council i/ 

FY 1982 



Title II 

DIB 

RSI 
Title XVI 
Concurrent 

title Il/title XVI 
Title XVIII 
Title IV (B.L.) 

Total 



Receipts 



Number 



Change trom 
FY 1981 




68,935 



Concurrent 

Title Jl/tltle XVI 

JOt 



Dispositions 



Affirmed Reversed 



Remanded 



Denied 



Dismissed 



Total 



Cbange 

from 

FY 1981 



Title II 

DIB 135 ( 0») 1.315 ( i\) 2,555 ( 8t) 26.242 (85*) 756 ( 1%) 31.003 + 22% 

RSI 34 C 2V, 144 (lot) 90 ( b\) 1.147 (794) 41 ( 31) 1.4S6 + 4% 

Title XVI 45 ( 0%) 504 ( 4t) 748 ( 7\) 9.653 (864) 327 ( 3%) 11,277 t 10"^ 

Concurrent 

title Il/title XVI 66 ( 0%) 814 ( 4t) 1.411 ( 74) 16.729 (864) 490 ( 34) 19,510 t 184 

Title XVIII 3 ( 14) 37 (144) 77 (284) 145 (534) 10 ( 44) 272 * 234 

Title IV (B.L.) 10 (244) 5 (124) 2 ( 54) 24 (594) - ( 04) 41 t 784 

Total TgnrgTT 2.819 ( 44) 4.8» ( U) 5 3.540 (854) 1.624 ( 34) VT^ -J-TTT 



Number 



Pending 
Change trom 
09/30/81 



Title II 

PIE 7,198 

RSI 280 

Title XVI 2,220 

Concurrent 

title Il/title XVI 4,042 

Title XVIII 74 

Title IV (B.L.) 10 

Total 13,824 



t 881 
t 19* 
+ 33* 




Title IVl 

16; 



Title IV 
Ot 



Concurrent 
Title Il/title XVI 
291 



Percentages may not add up to 100 due to rounding. 
1/ Includes cases taken on own motion review. 



356 



Civil Actions 

New Court Cases Received 



Change from 
Number FY 1981 


Total 


12,045 + 33% 


SOURCt: 


Office of General Counsel lOGC). 



U.S. District Court Actions 
Change from 



Number 


FY 1981 


1,145 

4,131 

422 

3,705 


+ 3% 

+ 451 
+ 14t 



Reversed 
Affirmed 
Dismissed 
Remanded 1/ 



Total 2/ 5,698 t ^ ^^ ■ 

SOURCE: Office of Operational Policy and Procedure (OOPPJ 



1/ All U.S. Court remands to OHA which are not included in total. 

7/ Includes only those cases for which court orders were received indicating 

" final court disposition. 



Court Remands - Processed By OHA 



Number % of Total 



Affirmed 1,361 381 

Reversed 1,917 54t 

Other 286 8\ 



Total _ ^.564 loot 

SOURCE: OHA/Division of Civil Actions 



Percentages may not add up to 100 due to rounding. 



357 



Operational 
Report 



of the 

Office of Hearings and Appeals 



September 30, 1982 

Department of Health and Human Services 

Social Security Administration 
Office of Hearings and Appeals 
SSA Pub. No. 70-032 (5-83) 



358 



Operational Report 

of the Office of Hearings and Appeals 



Table of Contents 

Page 

I. ASSOCIATE OCMHSSIONER'S STATEMENT 1 

II. FY 1982 ACHIEVEMENrS 4 

III. OVERVIEW CF OHA OFERATICNS 10 

IV. APPEALS PRXESS 12 

Hearing 12 

Appeals Ccxmcil Review 13 

Legal Recourse 14 

Health Insurance Hearings and Appeals 15 

V. STAFFING AND BUDGET 16 

VI. STATISTICAL TRENDS 18 

Summary Analysis 18 

AU Hearings 22 

Appeals Council Reviews 25 

Federal Court Actions 27 

Professional Support 28 

VII. LITIGATION 30 

Time Limit Litigation 30 

Other Litigation 30 

APPENDIX 32 

Organizational Chart 32 

(XPi Regional Office and 

Hearing Office Locations 33 



359 

I. Associate Commissioner's Statement 



The past year has seen tremendous activity and diange in the Office of 
Hearings and Appeals (CHA) as we launched initiatives to meet the 
critical cJiallenges facing us— the rapidly increasing workload, the need 
for greater ccnsistency and quality in the decisionmaking process and 
the need for improved management practices and techniques. 

We made steady progress in building the capacity to process our growing 
workloads. As expected, the number of requests for hearings rose to 
320,680, vAiicSi is a 13.8 percent increase over FY 1981. For FY 1983 we 
estimate that requests for hearing will exceed 360,000, which is more 
than an 11 percent increase over FY 1962 and a 27 percent increase over 
FY 1961. Requests for review before the Appeals Council grew from 
55,912 in FY 1981 to 68,935 in FY 1962. During the nejct fiscal year we 
estimate the Appeals Council will receive over %,300 cases. This is a 
72.3 percent increase since FY 1961. During the past year we were 
successful in acquiring additicnal budgetary and personnel resources, 
most notably 140 new A3ministrative Law Judges (ALT). In addition to 
these resources, we continued our efforts to find other ways to increase 
our capacity to handle the workload. Tor instance, we inplanented new 
organizational and workflow arrangeinents in hearing offices and obtained 
additional equipment to enable the staff to perform case processing 
functions msre expeditiously. Most importantly, the ALJs and their 
support staff responded to the rising caseload ty processing 2%, 548 
cases for a record hi^ average monthly dispositicn rate of 34.5 per 
ALT. 

Vfe also made considerable progress toward meeting the <±»allsTge of 
iitproving the quality and ccxisistency of our decisionmaking process. 
The own-motion review program mandated by Section 304(g) of P.L. 96-265 
(the Bellmen Amendment) was further refined and expanded to cover 15 
percent of all ALJ favorable decisicns. Other initiatives aimed at 
improving quality include: develcping a series of Social Secnirity 
Rulings to ensure adjudicatory ocnsistency; developing and conducting 
training courses for Mministrative Law Judges, decision writers and 
hearing office si^jport staff; eliminating the short -form fully favorable 
decision; and developing a Government Pepresentative Project. 

Our final c±iallenge during the past year was to improve overall manage- 
ment of CHA. Sane of the steps we took to aciueve this vas the develop- 
ment and delivery of iit^roved training for field and Central Office 
managers, realignment of the Central Office organizaticnEil ocnponents 
and the developmait of strategies for dealing with CHA's growing vork- 
Icsads. 

While we can be pleased with the success of CHA employees during the 
past year, we face even greater challenges in the future. As already 
noted, FY 1983 will bring further increases in workload. However, we do 



360 



not expect to receive corresponding increases in resources. Therefore, 
it is paramount that we continue to experiment and use new techniques to 
increase our productivity while still enhancing the quality of the 
decisionmaking process. 




Tjouis B. Hays 



361 

Highlights of the Current Year 



ALJ productivity reached a record high monthly average of 34.5 cases 
per ALJ for a total disposition of 296, 548 cases. 

In March and S^tember 1982 ALJ productivity reached a record high 
of 36 cases per ALJ. 

A record high receipt of 320,680 hecuring requests during the year 
increased the pending caseload at year-end to 152,896. 

Although the average processing time for hearing cases increased to 
174 days (from 164 days in FY 1981) , it remains well below the high 
levels in FY 1975 - 1977. 

A gain of 140 ALJs increased the total ALJ corps to 814 by year's 
end. An additional 749 field support staff positions increased the 
total sif^xDrt staff for ALJs to 3,715. 

The total number of perscHinel en duty increased by 23.2 percent to 
5,616 employees. 

New hearing offices opened in Bronx, New York; Savannah, Georgia; 
Dayton, Ohio; and Grand Rapids, Michigan. 

Regional hearing offices opened in Philadelphia, Pennsylvania; 
Chicago, Illinois; and, Kansas City, Missouri, and a national 
heeiring office cp«ied in Arlington, Virginia. 

With the opening of four new hearing offices, three regional hearing 
offices, and a national hearing office, the number of offices open 
throughout the United States increased to 135. 

A contract was awarded in August 1982 to provide each OHA hearing 
and regional office with state-of-the-art word processing 
equipnent. Nationwide installation is to be completed by May 1983. 



362 

II. FY 1982 Achievements 



During Fiscal Year 1982 CHA pursued three major objectives. These 
cbjectives were to increase workload capacity, increase the quality and 
ccnsistency of the decisional process and to improve management of the 
agency. 



Workload Capacity 



In order for CHA to process the projected increases in the number of 
requests for hearings and requests for review ty the Appeals Council, it 
was critical that action be taken to increase our ability to process 
cases. Despite personnel cutbacks within the Department, CHA success- 
fully petitioned for an increase in the number of ALJs. During the 
year, we hired 140 ALJs bringing the total number of ALJs to 814 on 
September 30. This represents an increase of 17 percent over the 
previous year. In order to provide staff svifport for these ALJs, we 
filled an additional 749 positiois. TTie overall si^^pcart staff to ALJ 
ratio increased from 4.4:1 at the end of FY 1981 to 4.7;1 at the end of 
FY 1982. This was still short of the agency's ultimate goal to achieve 
a ratio of 5:1. 

It should be noted that the new ALJs came en board in four increments — 
November 1981, February, May and August 1982. Past experience has shown 
that en the average it takes approximately a year for a new ALJ to 
beocme fully productive. 

CHA also utilized intermittent employees under the When Actually 
Qiqployed (W7VE) program as a way to indirectly increase the support staff 
ratio for ALJs v*iile at the same time conserving curtailed travel 
funds. WAEs assist ALJs in conducting hearings at remote hearing sites 
on an as-needed basis. Hearing assistants v*io would normally acconpany 
AUs en the hearing trips are able to remain in the office preparing 
cases for hearing or following vp en post-hearing developnent . 

In addition to increasing resources, CHA undertook other initiatives to 
increase productivity. Par instance, permanently increasing the staff 
of all hearing offices v*iic±i are occasionally backlogged or short of 
staff was not feasible. Iherefbre, we opened three Regional Hearing 
Offices (Hiiladelfhia, Pennsylvania; Oiicago, Illinois; and Kansas City, 
Missouri) and one Ifetional Hearing Office (Arlington, Virginia). The 
Regional Hearing Offices assist those hearing offices within their 
particular region vtiida have the greatest case backlog on an as-needed 
basis. The National Hearing Office performs the same function for all 
hearing offices across the country. These offices allow for greater 
flexibility and efficiency in handling tenporary increases in workloads 
or shortages of ALJs in particular offices without having to borrow 



363 



resources frcm other hearing offices. Each ALT assigned to these 
offices travels up to 75 percent of the time. 

Since the contracting process takes a great deal of time to oonplete and 
installation of all the word processing equipment is not ej^Jected until 
May 1983, CHA established two remote word processing centers on a pilot 
basis. We designed the program to reduce typing imbalances and backlogs 
in areas of the country with a critical need. We established the pilot 
centers in New York City and Chicago and will operate them for a period 
of one to two years. We will then evaluate them to determine their 
efficiency and cost-effectiveness. We selected hearing offices to 
participate in the program based en their proximity to the typing 
centers, typing imbalances and backlog history, large number of receipts 
and, in Region II, oourt-imposed time limits. Depending v-^xn the 
success of the pilot program, we may establish remote typing centers in 
other suitable areas of the country. 



Quality and Consistency 



In addition to developing the new standardized text, OHA undertook 
several initiatives to iirprove the quality and iniformity of the 
decisional process. Alcng with other conpcnents of SSA, CHA devoted a 
great deal of resources during the past year to developing a series of 
Social Security Rulings (SSR). These SSRs provide SSA's interpretation 
en the more aatiplex and difficult areas of the disability program 
policy. The SSRs developed during the past year will be published in 
FY 1963. These SSRs will for the first time establish a single set of 
standards for all of SSA to use in adjudicating disability cases. 

A major effort during the past year to promote greater consistency and 
accuracy of hearing decisions was the implementation of the Congres- 
sionally mandated own-moticn review program, oonrocnly referred to as the 
"Bellncin Review." Under the Bellmon Review program, the Appeals 
Council, en its own-motien, formally reviews ALT decisions that do not 
appear to be correct and, where the decision is incorrect, either 
reverses the ALJ's decision or remands the case to the ALJ for further 
proceedings. We limited the initial phase of the pre-effectuation 
ongoing review program to afproxiitiately seven and cne-half percent of 
all title II and title Il/XVI concurrent disability allowance decisions 
issued by a groip of hearing offices and individucil AUs selected en the 
basis of allowance rates of 70 percent or higher, and 75 percent or 
higher, respectively. We used allowance rates as the basis for 
selecting the initial review group, both because of Congressional intent 
and because studies had shown that decisions in this group would be the 
most likely to contain errors v*iich vould otherwise go imcorrected. We 
also used this procedure in order to make the most efficient use of 



364 



resources vAiile cnrrecting the greatest nuntoer of faxolty hearing 
decisions. On April 1, we enlarged the BellmcTi review to include 15 
percent of PU disability allowance decisions, and the case selection 
criteria for the Bellmen program were redesigned and eiqanded. Under 
this expansion, the group of ALJs selected on the basis of high 
allowance rates is just cne of several ocnponents of the review. A 
national random sairple of ALJ allowance decisions, without regard to any 
ALJ's allowance rate, new accounts for approximately 25 percent of the 
total reviewed cases. The expanded Bellman review also includes cases 
identified and referred to the Appeals CJouncil by the Office of 
Disability Operaticsis (COO). In addition, the program includes a review 
of decisions from new ALJs. Cne other change has been to remove entire 
hearing offices from the review. 

During this fiscal year, we reviewed 12,236 allowance decisions. The 
own-motion rate for all of these cases is 18.1 percent. However, the 
rates vary significantly depending on the category of the review. The 
highest own-motion rate, 61.8 percent, exists in the CCO protests. The 
next hii^st category is the group of individual ALJs, 20.3 percent. 
These rates are contrasted by the rates for the new AUs, 13.7 percent, 
and the random sairple, 11.5 percent. 

In December 1981 the Associate Ccirmissioner decided to inprove the 
decisional quality of fully favorable decisions by eliminating the use 
of the short- form format. This type of decision provided only a con- 
clusion of law without si^sporting rationale or findings of fact. ALT 
decisicHTS, whether they are allowances or denials, now contain a full 
rationale for the decision. To facilitate the transition to the new 
decision format, we eliminated the short-form decision format 
gradually. As of the end of the fiscal year the new decision format had 
been implemented natioiwide with the exception of a few hearing offices. 

During the past year CHA developed the Govemmait Representative Project 
(GRP). The purpose of the project is to determine whether the partici- 
pation of an SSA representative will improve the hearing process. The 
project will include almost all cases involving the issue of disability 
within the designated service area of the five hearing offices selected 
to participate. SSA representatives will be responsible for preparing 
the case for hearing. This will include such actions as examining the 
record for ocnpleteness, determining the need for additicxial evidence 
and initiating action to obtain this evidence. In cases vAiere the 
claimant has legal r^resentaticn, the SSA representative will also 
participate during the hearing to call and question witnesses and other- 
wise state SSA's position. The project will be inplanented in FY 1983 
and continue for approximately a twelve-month period. Based on the 
results of the project, it may be extended to other hearing offices. 

Another major effort during the year to inprove the quality of the 



365 



decisions issued was the field training initiative. Under this initi- 
ative we redesigned the training cnurse for new PUJs to give greater 
emphasis to case stix3ies. For veteran ALJs we developed a continuing 
education course which dealt extensively with adjudicative and program- 
matic topics such as use of vocational e^^serts, sequential evaluation of 
disability and evaluating evidence and determining the credibility of 
testimcny. During the year we delivered nine of these continuing 
education courses to approximately 335 ALJs. 

We also developed a two-week course to train decisicn writers in OHA's 
field offices. All new staff attorneys and hearing analysts must 
oon^Jlete the course within their first three mcxiths of service. The 
course ccxicentrates en disability adjtdicaticn by sequential evaluation, 
decision writing, review of the body systems, SSI and RSI. Vte also 
developed a three-day refresher program based en this course for 
experienced staff attorneys and hearing analysts. Half of all existing 
decision writers will be scheduled for this training each year. In this 
vray all decisicn writers can receive refresher training every other 
year. Since it was not eocrsomically feasible to devel<^ classrocm 
training programs for all of the functions performed within a hearing 
office, we developed a self-instr\x:ticnal suppDrt staff training package 
and sent it to all hearing offices. The package contains 28 segments 
covering the major categories of duties performed by heairing office 
siipport staff. We based the format en specific job tasks rather than on 
job titles so that it can be used by reconfigured or traditicaial unit 
offices. Hearing offices will use the package for in-office training of 
new employees as well as for refresher training for more e:q5erienced 
employees or for those changing job duties. 



Management 

During FiT 1962, we developed a national management training program 
emphasizing increased knowledge of sucii management issues as labor 
relations, equal opportunity, and improved day-to-day management 
techniques. Both the ALJTCs and Hearing Office Managers participated in 
the training to ensure consistency between the areas of program and 
administrative management in the heeiring offices. Three regicais 
received training during the year. The remaining regions will receive 
training in F5f 1983. We designed a similar course for Central Office 
supervisors vAiicJi will be delivered during FiT 1983. 

We made several organizationcil changes within Central Office in order to 
provide improved management, administrative services and accountability. 
In order to streamline operaticns we abolished the Deputy Associate 
Commissioner (Cperaticns) position and modified the position of Deputy 
Associate Commissioner (Program) to make it a full deputy position 

I 



366 



without line authority. Because of the increased eiufJiasis on program 
management in the field, we gave the Chief Aininistrative Law Judge's 
office an additicnal position for another Deputy C!hief Mministrative 
Law Judge. Also, we created a new Office of Management Services (CMS) 
ty ccatibining the Office of Facilities and Persoinel Administration and 
the Office of Management Coordination. CMS can now provide better 
coordinated sujport services to both Central and field offices. 

During the past year we planned and implemented a systems modemizaticn 
plan for CHA. Part of this plan includes the previously mentioned 
acquisition and installation of state-of-the-art vord processing equip- 
ment in all of the OHA field offices. Coupled to this initiative CHA is 
developing specifications for adding user prograitining and telecommuni- 
cations features in order to provide data entry/retrieval and distrib- 
uted processing capabilities to our field offices. This will enable us 
to decentralize our case control system operations. Data entry, 
retrieval and data processing functions will take place at the source 
where the data is generated — the field and Central Office locations. 
Currently, field offices must submit handwritten forms to their Regional 
Office for input on the SSA computer system. This not only causes 
delays in data entry and retrieval but also results in large 
bottlenecks at the Regional level, especially when the computer system 
is inoperable due to maintenance problems. The new system will also 
result in improved management reports. 

In order to improve case flow within Central Office we established a 
Docket and File Module on a trial basis within one branch in the Office 
of Appeals Operations (OAO). The module assumes responsibility for a 
claim file once a claimant files a request for review with the Appeals 
Council. One objective of this initiative is to achieve a decentralized 
system v*iidi will significantly improve association of post-review 
correspondence with the claim file. Another aim is to provide for easy 
accessibility and retrieval of claim files in the event of a court 
actiOTi. Previously the Docket and Files Brancih within CMS had the 
responsibility of maintaining all case files. In its first few months 
of operation the Docket and File Module in OAO met its objectives and we 
developed plans for inoorporating docket and file modules into addition- 
al OPD branches during FY 1983. 

CHA also experimented with innovative organizational structures and 
methods of processing the workload in order to enhance the productivity 
of the staff already on board. One successful organizational stnx:ture, 
vJiidi we expanded to 48 hearing offices by the end of the fiscal year, 
is reconfiguration. Uhder reconfiguration, hearing offices are 
structured according to functional areas instead of the traditicaial unit 
concept, vAiere each ALJ has a small svpport staff processing only 
hisA»er cases. Reconfiguration frees AUs from the majority of admini- 
strative duties, diminishes the impact of staff absences, enables the 



367 



staff to be used more efficiently and improves overall oaseflow. Fully 
recxxifigured hsciring offices have been able en the average to hear and 
decide more cases than traditionally structured offices. 

In order to investigate innovative jjrocedures used in the field and 
analyze their suitability for national inplementaticn, we established a 
HBcuring Office Innovaticns Staff (HDIS) in January. HDIS has investi- 
gated ideas as simple as modifying a nail handling procedure and as 
caaqplex as establishing a workload ccntrol and accountability system for 
an entire hearing office. HOIS hcis also served as a conduit for the 
exdiange of informaticn between the field offices and Central Office. 
Vfe expect the te<±niques and methods prcrooted throu^ HOIS to result in 
increased productivity throu^iout the ooming years. 

We refocused the CRA Newslett^ to concentrate en program activities 
involving the Central, Regional and field offices so as to increase the 
exchange of successful operating and management techniques. The news- 
letter also serves to transmit legislative/regulatory changes, alert CHA 
enployees to sources of tednical assistance and explain Central Office 
initiatives. 

A major effort to increase productivity was i^agrading hearing office 
equipment. In Au^st, CHA was able to enter into a contract to provide 
all hearing offices with state-of-the-art word processing equipment. In 
addition to printing decisions faster, the equipment has several 
features vJiich will help the support staff type decisions in a shorter 
time. For instance, the word processing system has a system glossary 
viiicii will allow the tjpist to merge original and standardized material. 

In conjuncticn with the atcquisiticn of the new word processing equip- 
ment, CHA developed a new standardized text guide. The guide is being 
distributed to the hearing offices en a sdiedule which coincides with 
the installation of the new word processing equiprnpnt. The text is 
prerecorded as part of the equipmait's stored memory capability. The 
revised text cxxitains separate decisional formats for allowances and 
denials in both initieil and cessation disability cases under Titles II 
and XVI, as well as samples for use in non-disability issue cases under 
Titles II, XVI, and XVIII. 



368 

III. Overview of OHA Operations 



■nie Social Security Administraticn ' s (SSA) Office of Hearings and 
Appeals (CHA) is responsible for administering the appeals process under 
various titles of the Social Security Act. This process enables a 
claimant vAx5 has reoeived an unfavorable decision ty SSA to se^ redress 
by presenting his or her oase at a hearing before an CHA Administrative 
Law Judge (AU). The claimant and/cr a representative cire allowed to 
present testinony and evidence at a hearing before an ALT. As an 
alternative, the claimant may svimit evidence in writing and request 
that a decision be made based on the record. The ALJ must weigh all the 
relevant evidence axx3 render a decision in accordance with applicable 
Social Security laws and regulations. 

Whai a clainiant is dissatisfied with an AU decision he or she may 
request review by the Appeals Council of CHA. The C3ouncil can affirm, 
modify, reverse or remand the origineLL ALT decision. Ttiis is the last 
level at Whidi a claimant can seek a favorable decision through the 
administrative process. However, a claimant may still appeal his case 
to a United States District CJourt. The Appeals Council may also review 
ALT decisicxis on its own-motion. Disability cases under the Supple- 
mental Security Income (SSI) program, title XVI, and Disability 
Insiaranoe (Dl), title II, account for approximately 97 percent of CHA's 
caseload. The remaining caseload corisists of claims made under the 
following programs: Retirement and Survivors Insurance (RSI), title II; 
Health Insurance, title XVIII; Professional Standards Review Carganiza- 
tions (PSRD), title XI; and the Black Lung Program, Title IV. 

SSI provides assistance payments to aged, blind and disabled individuals 
v*o qualify on the basis of need. The SSI program is funded from 
Federal general revenues. AUs hearing cases must frequently determine 
the extent of a claimant's disability and financial need in order to 
decide if the claimant meets the program's eligibility criteria. 

RSI and DI are trust fund programs vitiidti provide monthly cash benefits 
to contributing workers and/or their dependents v*ien their earnings stop 
or are reduced du2 to retirement, death, or disability. Monthly 
benefits are related to the worker's average monthly earnings over a 
specified nuniber of years v*iile contributing to the trust funds. The 
major issues involved in these cases cire determining what constitutes 
disability, meeting time requirements for oontrituting to the funds, and 
aitount of boiefits. 

Title XVIII, Part A, hospital insurance, pays for hospital services as 
well as post-hospital skilled nursing facility care and home health 
services. Part B, svpplemaitary medical insurance, helps pay for 
doctor's services, outpatient hospital services, and many other medical 
items and services not covered under part A. Since both of these parts 



10 



369 



are for the benefit of workers who have ocntritutecl to special trust 
funds, requests for CHA hearings often involve svich issues as a 
claimant's eligibility as well as the extent to vhich the program will 
oover certain charges by pnDviders of health care. Occasionally cases 
arise under this title involving physicians or practitioners of health 
care v*kd have been convicted of a criminal offense related to their 
involvement in the Medicare or Medicaid programs, have been barred by 
the Secretary from further participation in those programs and are 
seeking a reversal of the Secretary's decision. 

•n^ Black Lung program, title IV of the Federal Mine Safety and Health 
Act of 1977, provides benefits to miners totally disabled by black lung 
or \3pan their death to their survivors. 

PSROs make judgement en the medical necessity and quality of health care 
furnished under the Medicare, Medicaid and Maternal and Child Health 
programs and are designed to assure the apprr^Jriate use of health care 
resources. They also determine vJiether the level of medical care 
proposed to be provided or actually being ra*3ered is consistent with 
professionally recognized standcuixis. 

In fiscal year 1962 CHA ALJs conducted in excess of 296,000 hecirings and 
the Appeals Council considered over 63,000 ceises viiidi included claimant 
request for review and own-notion cases. At the end of the year OHA's 
workforoe consisted of more than 5,600 employees, incluiing a corps of 
over 800 ALJs, Total administrative costs were approximately 
$180 million. OHA's activities cire conducted from its centred head- 
quarters in Arlington, Virginia, 10 regional offices and 135 hearing 
offices located throu^iout the Uhited States. 



11 



370 



IV. The Appeals Process 



Hearing 



An applicant for Social Security benefits who has been denied at both 
the initial determination level and at the reconsideration level may 
request a hearing before an ALJ. For some disability cases under the 
SSI program, a claimant can request a hearing after the initial determi- 
nation is made. The request for heeiring must be made by the claimant 
and/or his legal representative within 60 days from the date of receipt 
of the notice of reconsidered determination. TTie claimant may request 
either an oral hearing or that a decision be made based en the record. 
Upon reviewing the case the ALJ can issue a written dismissal of the 
request for hearing if the case does not meet certain regulatory 
criteria. At a hearing, testimony is given under oath or affirmation 
and is recorded verbatim. The ALJ must inquire fully into the issues^ 
receive in evidence the testimony of witnesses and relevant documents, 
and allow the claimant and/car the claimant's legal representative to 
present arguments and examine witnesses. If additional evidence is 
necessary, the ALJ can request assistance fran other oonponents of SSA 
or from the State agency involved in the initial decision. 

After the hearing or review of the case record, the ALJ issues a 
decision in writing. The decision can affirm, reverse or modify the 
previous administrative determinations. A oopy of the decision is 
mailed to the claimant and legal representative, if any, with notice of 
the ri^t to request review of the hearing decision by the A.fpeals 
Council. A request for review must be made within 60 days of receipt of 
the notice. 



Overview of SSA Claims and Reconsideration 



( Claimant \—^ 



Initial filing 

for 

benefits 




File for 
Reconsideration 

of Initial 
Determination 



payment 




OHA 
Appeals 
Process 



12 



371 



OHA Appeals Process 



Claimant 
Requests 
Hearing 



ALJ 

Dismisses 

or Issues 

On-the-Record Decision 

or 

Holds Hearing 



Dismissal 



Claimant 



Unfavorable 



c 



Decision 



Own Motion 
ReviewJ/ 



Review Requested 



Dismissal 



File 




:> 



Favorable 



SSA Pays 

Benefits 

to Claimant 



Appeals Council 



[Claimant I 



File, 



If "No Appeal" 




c 



Remand 
(to ALJ) 



Decision 



) 



Favorable 



Unfavorabl 



^ 



Claimant has Right of Appeal 
to U.S. District Court 



'ah hearing decisions are subject to Own Motion review 
by the Appeals Council. 

^Includes Denials of Request for Review. 



Appeals Council Review 



Upoi receipt of a claimant's request for review of a hearing decision, 
the Appeals Council considers the evidence of record, additional evi- 
dence siianitted by the claimant vdth the request for review, and the 
ALJ's findings and conclusions as written in the decision. The Council 
nay grant, deny or dismiss a request for review. The Council will 
nonnally review a hearing decision vAien (1) there appears to have been 
an abuse of discretion by the ALJ, (2) there is an error in law, (3) the 



13 



372 



hearing decisicn is not sufported fcy substantial evidence, or (4) there 
is a bread policy or procedural issue involved. 

When it grants review, the Council may issue a decisicn viJiidi affirms, 
itodifies or reverses the hearing decisicn. However, if the Council 
reviews a case and deteoiines that additicnal evidence is required, it 
will generally remand the case to an ALT for receipt of the evidence, 
further proceedings and a new decisicn. The Council may also vacate a 
hearing decisicn and dismiss the claimant's request for hearing for any 
reascn whidi would have justified sudi dismissal by the AU. The 
Appeals Council may also ocnsider a case an its own-motion vJien the 
hearing decisicn does not appear to be in accord with the law and 
regulations. As a result of Public Law 96-265 (the Bellmen Amendment) 
the ;^peals Council's own-motion review authority must be exercised to 
include review of a3mini strati ve law judge allowance decisions. In any 
case in vAiich the Council takes own-notion, it may remand the case to an 
ALT for additioncil development and/or a rehearing and issuance of a new 
decision, or undertake any necessary development itself, and then issue 
a decisicn affirming, modifying or reversing the hearing decision. 



Legal Recourse 



A claimant, v*io has either been denied a request for review or received 
an mfavorable decisicn by the Appeals Council, may file a civil action 
with a U.S. District Court. The civil acticxi must be filed within 60 
days after the claimant's receipt of the notice of the Council's action 
in the case. However, this time limit can be extended by the Council, 
if the claimant can show good cause for not meeting the deadline. The 
Federal oourts are bound by the Secretary's findings of fact provided 
they are supported by substantial evidence. A court, upon reviewing a 
case record, may find there is insufficiait documsntation to sv^iport the 
decisicn and may remand it to CHA for additional evidence. Also the 
court can show that it is pertinent and that there was good cause for 
the claimant's failure to incorporate it into a prior proceeding. The 
Departmeit may also request the court to remand the case upon shewing 
good cause. The Secretary's new decisicn must be filed with the 
court. If the new decisicn is not fully favorable to the claimant and 
the claimant desires to continue litigation, a complete transcript of 
the entire administrative proceedings must also be filed with the 
court. If the U.S. District Court reviews the case record and does not 
find in favor of the claimant, the claimant can continue with the legal 
appeal process — to the appropriate U.S. Circuit Court of ^peals and 
ultimately to the Supreme Court of the Uhited States. Ihe Department 
has the same appeal ri^ts. 

Ordinarily, in order to obtain judicial review, an individual must 
exhaust all of the administrative appeals steps. Ifcwever, where an 
individual: (1) has received a determination or decision at the reccn- 



14 



373 



sideraticn level or higher; (2) has no dispute with the findings of fact 
and application and interpretation of the ocntrolling laws beyond a 
cxDntenticn that a section of the applicable law is unoonstituticnal; and 
(3) pursues, as the sole remaining issue, a challenge to the ocnsti- 
tuticnality of ths pertinent statute vAiich precludes favorable action in 
the claim, the individual may be permitted to file a civil action in the 
U.S. District Court without pursuing further administrative appeals 
steps . 



Health Insurance Hearings and Appeals 

In order for a claimant to initiate the appeals process involving a 
Medicare Hospital Insurance (title XVIII, Part A) case, the amount in 
controversy must be at least $100. 

Cases involving institutional and nc«i-institutional providers of medical 
services under Medicare and Medicaid (titles XVIII and XIX) v*o have 
been denied participation based on a decision ty the Health Care 
Financing Administration (HC^FA) use essentially the same appeals proce- 
dures described earlier. The major difference is that VCFh also becomes 
a party to tte appeals process. As such, it also has the right to 
present arguments and examine witnesses at the hearing, and request a 
review ty the Appeals Council, if the PU decision is unfavorable to the 
agency. 

A laboratory, portable X-ray sujaplier or end stage renal disease treat- 
ment center v*iich has received an unfavorable review by the Appeals 
Council is not entitled to judicial review by the courts. 



15 



25-550 O— 83 24 



374 



V. staffing and Budget 



CHA is airected by an Associate Commissioner v*io reports directly to the 
Canmissicner of SSA. CHA's activities are divided into three major 
areas: program, management operations and field administration. 

The program area encompasses the development of policy and procedural 
natters vdthin CHA and with other SSA/HHS oarpcnents, operation of the 
medical and vocational consultants programs and the selection of the 
analysis of cases for ;^:peals Council review. Management operations 
involve administrative functions required for the day-to-day operation 
of CHA and quality control. Technical assistance in and mcxiitoring of 
policy, program and procedural matters is provided to the ten Regional 
Offices and 135 hearing offices ty field administration. 

During FY 1962, total persoinel on duty increased 23.2 percent over the 
previous year, vAiidi resulted from a 17.0 percent increase in ALJs, a 
25.8 percent increase in field support personnel and a 19.5 percent 
increase in Central Office staff. The ratio of support staff (decision 
writers, hearing assistants, hearing clerks, typists and hearing office 
management persoinel) to ALJs has increased from 4.4 to 4.7. 

During FY 1962 four ALT classes were conducted and resulted in 125 new 
AEJs being assigned to hearing offices. In addition, fifteen AUs were 
reinstated to the corps. 

The increase in Central Office staff was due primarily to 71 hearing 
analysts being added to the Office of Ajpeals Operations. These 
analysts were necessary in order to handle the increased case review 
workload. 

Ttotal e35)enditures increased 18.8 percent over FY 1961 ej^jsnditures. As 
the following table indicates, there was an increase in "Personnel 
CCmpensation and Benefits" of over $21.9 million. This 17.4 percent 
increase over FY 1981 resulted fron a 4.8 percent increase in funds 
required for staff and ooraparability pay raises. FVmds expended under 
"Other" categories increased 25.3 percent. Included are costs for rental 
of space for hearing offices, equipment rental and purchase, travel, and 
contractual services. All of these items were affected ty rising 
prices. AHitionally, CHA had to rely more heavily on the use of ccn- 
tractiEil services for the services of vocational and medical ej^serts. 



16 



375 



The growth in CHA funds ejgsended, by category, is tabulated ty selected 
fisoal year as follows: 

OH A Funds Expended 



(000 Mded) 

categcry 1965 1970 1975 1980 1961 1962 

Personnel Oon^jensatlcn $9,662 $18,171 $58,341 $110,525 $125,783 $147,708 

and Benefits 

Other 1,408 4,011 17,225 22,953 25,728 32,246 

Ttotal $11,070 $22,182 $75,566 $133,478 $151,511 $179,954 



17 



376 

VI. statistical Trends 



Summary Analysis 

Cases received at the initial and recxnsideraticn levels declined in 
FY 1962. Although the number of claims filed at the initial level 
declined 21.9 percent from FY 1961, there was only a very slight decline 
in the number of claims filed at the reccfisi deration level. I^is can be 
attributed in part to title II cases reviewed under the Continuing 
Disability Investigation (GDI) program. The Congressionally mandated 
GDI program requires that State Disability Determination Services (EDS) 
review every three years the disability status of beneficiaries who are 
not permanently disabled. When a claimant's benefits are terminated 
under the GDI review, the claimant has the right to request reocnsider- 
aticn of the decision and, if necessary, to use the CHA appeals 
process. At the enf of the fiscal year, OHA had received over 61,000 
requests for hearing for GDI cases. These GDI cases have resulted in a 
significant increase in CHA's caseload. 

Receipts at Various Decisional Levels 





FY 1981 


py 1982 


Oiange 


Initial daias Reoeiwad^ 

Reqissts for Rpomsideration Received-'- 

Hearing Requests Received 

Reviews Before Ocxmcil Received 

Artiora Filed in O.S. District Qxirt 

^ Eirrludes Health Insurance and Black Ux^ 


7,020,900 

706,400 

281,737 

55,912 

9,055 


5,481,700 

704,400 

320,680 

68,935 

12,045 


-21.9% 
-0.3% 
+13.8% 
+23.3% 
+33.0% 



As ireaicated by the following data, in FY 1962 there was a significant 
increase in hearing request workloads, number of einployees, and funds 
expended over FY 1981. 

Workloads, Personnel and Expenditures 



/ 

Category 



FY 1981 FY 1982 Oiange 



VtorklOBd (Hearing Itequests) 281,737 320,680 +13.8% 

Perscre»l 4,559 5,616 +23.2% 

Puxls 5151,510,474 5179,953,933 +18.8% 



The percentage of decisions reversed at the various levels of review are 
shown in the following table. Decisions allowed by AUs have shown a 
gradual increase over the years and in FY 1980 and FY 1981 had reached 
over 55 percent. However, it should be noted that allowed decisions 



18 



377 



which hegan to decline in FY 1981 for the first time since FY 1974 
continued to decline in FY 1982 to 52.7 percent. In canparison, CDI and 
non-CDI allowance rates for the last eight months of FY 1982 were 61.3 
percent and 50.0 percent respectively. The nimber of decisions reversed 
by the Appeals Council had been oi the decline from FY 1975 - FY 1978. 
The decline during this period resulted f ran a change in the regulations 
designed to make the Appeals Council a ruling appellate body. Instead 
of conducting a "de novo" review of each appeal, the Appeals Council 
grants a claimant' s request for review only under certain prescribed 
regulatory criteria. This policy has now been in effect for a suffi- 
cient time to result in a stabilization of the reversal rates. During 
FY 1982 there was a very slight decline in the reversal rate, down 0.4 
percent from FY 1981. When a request for review is granted to obtain 
additional evidence the case is generally remanded to an AU to obtain 
the evidence. The AUs allowed an average of 61 percent of the cases that 
were remanded by the Appeals Council fron FY 1976 - FY 1980. In FY 1982, 
the AUs allowed about 62 percent of the cases remanded by the Appeals 
Council — down from 65 percent in FY 1981. Prior to the regulatory 
change these cases were developed by the Appeals council which would 
issue a reversal when appropriate. 

Decisions Reversed by Level of Adjudication 



Categccy Fy 1965 FY 1970 Flf 1975 FY 1960 FY 1961 FY 1962 



ALT 




28 


9% 


41 


6% 


41 


9% 


55 


8% 


55 


2% 


52 


7% 


fff>. 


Ontncil 


9.6% 


12 


4t 


8.8% 


4 


9% 


4 


8% 


4 


4% 


U.S. 


District Cnurt 


34 


5« 


25 


It 


19 


1% 


20 


2% 


24 


7% 


21 


7% 



19 



FY 1982 Total Claims 



378 



3,500,000t 



Z800,00O- 



•o 

> 

2 2,100.000- 

« 

OC 

5 1,400,000- 
700,000- 



180,000 



> 



144.000- 



o 108,000 



Jo 72,000- 



36,000- 



Inilial 



Hearings 



H RSI 
Ki Disability 
HI SSI 



Initial Claims Received^^ 5,481,700 

RSI Disab. SSI Total 2/ 

3, 214, 700 1, 302, 900 964, 100 



Requests for Reconsideration Received— 
704,400 

BSI Dlsab. SSI Total 2/ 



28,600 



432,100 



243,700 




Recon 



34736S 4i ar 




Hearing Requests Received— 320,680 

R SI Dlsab. BL HI SSI Only SSI Cone. 
5,43i l7S,789 l54 37433 ^3,112 82,773 

52.7% Allowed 
47. 3% Denied 

Reviews Before Council Received— 68,935 

RSI Disab. BL HI SSI Only SSI Cone. 



ll.dJi 



20,909 



4.4% Reversed 
87.9% Affiinied,Diaiiis8ed, Denied 
7.7% Remanded 

Actions Filed in USDC- 12,045 

RSI Disab . BL SSI 3/ 

rrm- 

21. 7% Allowed 
78. 3% Denied 



T 



Reviews 



USDC 



V Exrl'Kl'o Health Ineurance and Black Lung 

5^ SSI brealcaut not available, ooncurrent cases are also oouited in the respective 

RSI and Disab. categories. 
^' Concurrent DI-SSI disability cases ace included in Disab. category. 

(DTE: Continuing Disability Investigations (CDIa) are included foe title n disability 
czises at the reoonsideraticn level; whereas, iit the hearings, appeals and court 
levels cms are included fee title n, title WI, and ooncurrent title II/30/I 
disabUity 



20 



379 



Growth Yardsticks 

Office of Hearings and Appeals, FY 1965 - FY 1982 



Personnel 

Number of Personnel 
&000 

ALJs 



Sub-Category 



Total 



5,000 



4,000 



3,000 



2000 



1,000 



Field 

Support 

Staff 



Central 
Office 
Staff 




1,087 



752 



311 



1965 



■75 '82 



1965 '75 



1965 '75 



■82 



5,616 




1965 '75 



Dollars Expended (000,000) 
200 



Hearing Request Received (ooo) 

330 



180.0-^ 




1965 '75 



320.7?''- 



Rounded to nearest $100,000. 




1965 '75 



1/ 

^''Rounded to nearest 1,000. 

NOTE 1. Personnel are defined as permanent, full-time, on-duty personnel and excludes LWOPs. 
NOTE 2. FY 1982 funds are estimated. 



21 



380 



ALJ Hearings 

A record hi^ of 320,680 hsaring requests was received in FY 1982. 
Requests for Title II disability hearings (including Disabled 
WidDwAJidowers Insurance Baiefits) increased 28.9 percent over FV 1961, 
ard represent the largest category of cases received ty CHA— 54.8 
percent of total receipts in FV 1982. 

SSI (including octicurrent SSl) requests received declined sli^tly in 
FY 1982; however, they represented the second largest category of cases 
received by CHA— 42.4 percent of total receipts in FY 1982. Health 
Insurance Benefits — Supplemental Medical Insurance Benefits receipts 
increased in FY 1982—15.7 percent over FY 1961. Retirement and 
Survivors Insurance (RSI) receipts continued to decline in FY 1982—5.8 
percent from FY 1981. 

In FY 1982, dispositions increased 12.9 percent over FY 1961. Hearing 
requests pending an AU final decision reached a record hi^ of 152,896 
cases— up 18.7 percent over FY 1981. ALJ final actions categorized as 
favorable (allowed) or unfavorable (daiied/dismissed) to the claimant 
are tabulated for selected years as follows: 

ALJ Dispositions on Hearings 



Action FY 1965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 

Favorable 28.9% 41.6% 41.9* 55. 8« 55.2% 52. 7X 
Unfavorable 71.1% 58.4% 58.1% 44.2% 44.8% 47.3% 



In FY 1982, 12.9 percent more fee petitions were processed in RSCHI and 
SSI claims than in FY 1981 (58,960 in FY 1981 to 66,572 in FY 1982). 
The average fee approved in FY 1962 was $1,183.54 for all programs 
($1,102.59 in FY 1961) for a total of more than $79 million ($65 million 
in FY 1981). The number of total dispositions involving attorney parti- 
cipation has shown a generalized upward trend since FY 1970. The 
participation of attorneys has more than doubled from 20 percent of the 
cases in FY 1970 to 44 percent in FY 1962. Participation of non- 
attorneys graduaUy increased from 6 percent in FY 1970 to 15 percent in 
FY 1980. However, in FY 1961 the trend reversed, and in FY 1982 non- 
attorney participation had declined to 11 percent as tabulated for 
selected years: 



22 



381 



Participation of Representatives in Hearing Dispositions 

r 

Representative FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 



Attorney 


20X 


37X 


41* 


42X 


44X 


Non-Attorney 


ex 


lOX 


15X 


14t 


nx 



Participation of Representatives at Hearings Held 



Representative FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 



Attorney 


N.A. 


N.A. 


48X 


55X 


59X 


Non-Attorney 


N.A. 


N.A. 


15X 


18X 


14X 



Administrative Law Judge Actions on Hearing Requests 


< 

Actions 


FY 1965 


FY 1970 


FY 1975 


FY 1980 


FY 1981 


FY 1982 


Allowed 


6,754 


16,005 


50,709 


129,713 


144,830 


156,349 


Denied 


14,578 


18,542 


58,423 


80.324 


91,490 


111,064 


Dismissed 


2,061 


3.933 


11,894 


22,562 


26,289 


29,135 


Tom 


23,393 


38,480 


121,026 


232,599 


262 ,609 


296,548 


C 



23 



382 



Hearing Requests 

Received, Disposed, Pending by Program 



/^ 

v^ 


Requests 


FY 1965 


FY 1970 


FY 1975 


FY 1980 


FY 1981 


FY 1982 


Received 














HIB-SHIB 




2,324 


1.518 


2,800 


2,955 


3,419 


DUIB 




2,224 


3,721 


6,257 


6,522 


6,039 


RSI 


3,106 


3,124 


2,528 


6,336 


5,768 


5,433 


Disability 


20,217 


34,901 


74,780 


114,234 


129,804 


169,750 


Black Lung 






19,515 


161 


175 


154 


SSI Only 






28.677 


53,256 


57,592 


53,112 


SSI Cone. 






24.223 


68,979 


78,921 


82,773 


Total 


23.323 


42,573 


154.962 


252.023 


281,737 


320.680 


Disposed 














HIB-SMIB 




1,735 


1.822 


3.160 


2,516 


3,350 


DUIB 




2,234 


3,102 


5.683 


6,541 


6.162 


RSI 


3,292 


3,000 


2.555 


5.946 


5,847 


5,379 


Disability 


20,101 


31,511 


63.915 


104.657 


119,572 


147,970 


Black Lung 






28,492 


159 


158 


167 


SSI Only 






12,677 


50.839 


54,937 


53,485 


SSI Cone. 






8,463 


62.155 


73,038 


80,035 


Total 


23,393 


38.480 


121.026 


232.599 


262,609 


296.548 


Pending 












< 


HIB-SHIB 




890 


1.150 


1.215 


1,654 


1.723 


DWIB 




687 


2.591 


3.065 


3,046 


2.923 


RSI 


729 


988 


1,625 


3.044 


2,965 


3,019 


Disability 


5,725 


11.182 


48.133 


49.265 


59,497 


81.277 


Black Lung 






24,315 


83 


lOO 


87 


SSI Only 






17,041 


22,116 


24,771 


24,398 


SSI Cone. 






16,314 


30,848 


36,731 


39.469 


Total 


6,454 


13,747 


111,169 


109,636 


128,764 


152,896 

















24 



383 



Appeals Council Reviews 

Appeals Council receipts, including cases taken en cwn-moticn review, 
increased to a recoitJ high in FY 1962 of 68,935 cases (i^^ 23.3 percent 
over FY 1961) resulting primarily from increases in all programs except 
Health Insurance Benefits - Supplemental Medical Insurance Besnefits 
(down 18.3 percent). 

In FV 1982, dispositions increased to an all time high of 63,559 (up 
17.5 percent over FY 1961). With the exceptions of Retirement and 
Survivors Insurance and Health Insurance Benefits - Si^plemental Medical 
Insurance Benefits, all programs had increases in case dispositions over 
FY 1961 with the nost significant increase, 22.4 percent, in the title 
II disability program (including Disabled WidcwMdcwers Insurance 
Benefits) . 

The total number of cases pending at the end of FY 1962 increased 63.6 
percent over FY 1981 (from 8,448 to 13,824) and constitutes more than a 
two and one-half manth backlog. ;^?)eals Council actions categorized as 
favorable (reversed) or vnfavorable (affirmed, dismissed, denied) to the 
claimant and actions remanded back to the ALT are tabulated for selected 
years as follows: 



Appeals Council Dispositions 



Action FY 1965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 

Reversed 9.6X 12.4* 8.8X 4.9X 4.8* 4.4« 

'Affirmed, Dismissed „, ,^ ., ,, ,- « 

4 Denied 86.3* 84. 4t 88.3t 87. U 87. 6« 87. 9t 



Remanded 



4.11 3.2* 2.9t 7.9J 7.6« 7.7« 



Actions on Reviews Before Appeals Council 



Actions 


FY 1965 


FY 1970 


FY 1975 


FY 1980 


FY 1981 


FY 1982 


N 


Reversed 


797 


1,380 


2,660 


2.447 


2,614 


2.819 




Afflrraed 


710 


769 


1,495 


208 


184 


293 




Dismissed 


298 


407 


682 


1,329 


1.378 


1.624 




Denied U 


6,171 


8.184 


24,374 


41.565 


45.813 


53,940 




TOTAL ^^ 


7.976 


10,740 


29,211 


45,549 


49.989 


58.676 




Remanded 


344 


354 


852 


3,917 


4,106 


4,883 




^Includes declined and other. 
2/For final decisions. 










^ 





25 



384 



Reviews Before Appeals Council 
Received, Disposed, Pending by Program 



< 


FY 1965 


FY 1970 


FY 1975 


FY 1980 


FY 1981 


FY 1982 


Received 


HIB-SMIB 




483 


308 


549 


349 


285 


OWIB 




840 


786 


1,368 


1,497 


1,533 


RSI 


1,265 


1,147 


983 


1,636 


1,487 


1,501 


Disability 


7,520 


8,799 


15,388 


20,965 


24,574 


32,833 


Black Lung 






15,918 


6 


24 


41 


SSI Only 






1,974 


9,869 


10,704 


11.833 


SSI Cone. 






1,320 


15,349 


17,277 


20,909 


TOTAL 


8,785 


11,269 


36,677 


49,742 


55,912 


68,935 


Disposed 


HIB-SMIB 




373 


363 


718 


354 


272 


DWIB 




823 


720 


1,369 


1,475 


1,509 


RSI 


1.331 


1.096 


1,004 


1,466 


1,522 


1,456 


Disability 


6.989 


8,802 


13,084 


21,663 


23,846 


29,494 


Black Lung 






14,270 


31 


23 


41 


SSI Only 






378 


9,700 


10,290 


11,277 


SSI Cone. 






244 


14,519 


16,585 


19,510 


TOTAL 


8,320 


11,094 


30,063 


49,466 


54,095 


63,559 


Pending 


HIB-SMIB 




161 


106 


66 


61 


74 


DWIB 




145 


268 


220 


242 


266 


RSI 


173 


318 


227 


270 


235 


280 


Disability 


1,58? 


1,287 


5,356 


2,865 


3,593 


6,932 


Black Lung 






4,016 


9 


10 


10 


SSI Only 






1,598 


1,250 


1,664 


2,220 


SSI Cone. 






1,076 


1,951 


2,643 


4.042 


TOTAL 


1,755 


1,911 


12,647 


6,631 


8,448 


13,824 





26 



385 



Federal Court Actions 

New civil actions filed in the Federal Courts increased ty 33 percent 
during FY 1962 from 9,055 to 12,045. After a slight decline in court 
remands during FV 1981 there was an increase in FY 1962 from 3,262 to 
3,705, or 13.6 percent. U.S. District Court decisions categorized as to 
whether the Secretary's decision was reversed or affirmed are tabulated 
for selected fiscal years as follows: 

Decisions by U.S. District Courts 

















^^\ 


Ac t i on 


FY 1965 


FY 1970 


FY 1975 


FY 1980 


FY 1981 


FY 1982 




Reversed 
Affirmed 


34.5% 
65.5% 


25.1% 
74.9% 


19.1% 
80.9% 


20. 2% 
79.8% 


24. 7X 
75.3% 


21.75£ 
78. 3X 


k. 














J 



Civil Actions in U.S. Courts 
Received, Disposed, Pending 



Actions 



Disposed 



Pending 



Adjusted 



FY 1965 



Received 



941 



1,224 



1,447 



FY 1970 



FY 1975 



FY 1980 



FY 1981 FY 1982 



1,531 



1,183 



2,171 



5,052 



7,814 



9,055 12,045 



2,227 



5,143 



6,378 



7,634 



18,920 



-3,045 



-1,149 



5,981 



20,448 23,697 



-2,815 



U.S. District Court Actions 
Reversed, Afftrnied, Dismissed 



Actions 



Affinned 



Dismissed 
Adjusted 



Total 



Reversed 



FY J965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 



273 



518 



82 



+221 



1,094 



198 



590 



172 



960 



279 



1,184 



764 



2,227 



935 



3,701 



223 



4,859 



1,317 



4,006 



764 



6,087 



1,145" 
4.131 



422 



5.698 



27 



386 



U.S. Court Remands to OHA 
Received, Disposed & Pending 



Remands FY 1965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 



Received 417 441 1.341 3,320 3,262 3,705 



Disposed 344 436 1,039 3,654 3,572 3.564 



Pending 245 216 953 3.002 3,686 4,039 



Adjusted 



+984 +994 +212 



Professional Support 

CHA first contracted with Medical Advisors (MA) and VocatiCTial Ebqierts 
(VE) in FY 1963. This procedure, althoij^i revised, continues each 
fiscal year. The MAs are used in the hearing process to give the ALJ an 
unbiased evaluation, either ty oral testimony or writtai interrogatory, 
of the medical evidence available in the claimant's case file. These 
oomnents beocme part of the case file and assist the ALJ in making 
hisA^sr decisicxi on the case. 



Usage of Medical Advisors 



FY 1965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 



Contract 664 1,087 1,657 1.Z88 1.218 1.189 

980 3,070 7,338 12.428 13,136 18,312 



Number of 
Cases 



tonars 83,050 325,700 645,950 1,739,906 1,983,570 2,491,760 



The use of vocational e^q^erts grew out of a landmark decision, Kemer v. 
Fleming, 283 F.2d 916 (1960), vSiidi placed ipon SSA the burden of 
providing evidence of jobs the claimant could perform when it was deter- 
mined that the claimant could not perform past relevant work. The 
medical-vocational regulations, which became effective en February 26, 
1979, administratively noticed the existence of approximately 2500 
unskilled occupations, each representing numerous jobs in the national 
ecorair/. Where a particular table nale set forth in the regulations 
directs a conclusion of "not disabled," ejqaert vocational testimony is 
not required to identify the specific jobs a claimant can do. 



28 



387 



Accxjrdingly, there was a sharp decline in the vise of vocational 
experts. In the case of Campbell v Secretary of HHS , 665 F.2d 48 (2rea 
Cir. 1961), the "administrative notice" feature of the regulations was 
rejected. The camffcell case is now before the Svpreme Court en the 
question of whether the Secretary may rely vpan the administrative 
notice provisions of the regulations, rather than testimony of vocation- 
al e:5>erts, to determine the existence of substantial gainful work in 
the national eoonany. The use of vocationcil experts may be affected by 
the Supreme Court's ruling in the Cangibell case. 

Usage of Vocational Experts 



FY 1965 FY 1970 FY 1975 FY 1980 FY 1981 FY 1982 

Under 

Contract 656 647 800 937 940 90r 

Number of 

Cases 5,086 8,722 23,303 32,866 38,284 49,515 

Cost in 

Dollars 355,920 679,710 1,678,745 2,563,546 3,445,527 4,222,635 



Qualified medical doctors are contracted as central office ccaisultants 
to assist the CHA Appeals Council whai reviewing cases brought before 
then). 



Usage of Central Office Consultants 



FY 1976 FY 1977 FY 1978 FY 1979 FY 1980 FY 1981 . FY 1982 

Under 

Contract 56 55 48 46 36 30 34 

Cost in 

Dollars 119,115 244,557 289,726 246,390 192,065 320,310 398,230 



29 



388 



Vil, Litigation ^^ 

Time Limit Litigation 

During FY 1982, the Blankenship time limit processing case in the 
Western District of KentuclQ' continued to be a major litigaticn concern 
of CHA. During FY 1962 the court issued a final appealable ruling 
adverse to tlie Secretary. In effect the court ordered the Secretary to 
publish regulations requiring the conduct of hearings and issuance of 
decisions within 180 days of the request for hearing. Thereafter an 
appeal was filed to the Court of Appeals for the Sixth Circuit and a 
stay was obtained of the District Court's holding. Nevertheless, we 
continue to be under court imposed time limits for tlie conduct of l-iear- 
ings and issuance of decisions in numerous jurisdictions, primarily in 
the Northeastern United States. In addition, in Day (District of 
Vermcxit) time limits have been imposed in the State of Vermont for 
processing requests for reconsideration and Appeals Council review as 
wsll as for the hearing process. 



Other Litigation 

In McClure et al. v. Harris, the Svpreme Court unanimously reversed the 
U.S. District Court for the Northern District of California which had 
ordered tlie Secretary to provide an opportunity for a de novo hearing 
conducted by an SSA ALJ for Title XVIII, Part B, Medicare, claimants who 
received denial decisicns from carrier-aj^X)inted hearing officers in 
which $100 or more remained in controversy. The court affirmed SSA's 
statutory hearing process and, thus, a major workload burden for OHA was 
avoided. 

During FY 1982 the Supreme Court granted the Secretary's petition for a 
writ of certiorari in Schweiker v. Campbell. On November 30, 1981 the 
Second Circuit issued its ruling which essentially rejected the admini- 
strative notice provisions of the medical-vocational guidelines. As 
stated in the Secretary's brief, "the court seemed to suggest that the 
Secretary must prove the existence of particular jobs so that claimants 
may have an opportunity to show that such jobs do not exist." The 
holding in Campbell has been the major adverse Circuit Court decision 
involving the so-called "grid" regulations and is in sharp contrast with 
favorable holdings in other circuits such as Torres (First Circuit 
1982); Santise (Third Circuit 1982); Rivers (Fifth Circuit 1982); Kirk 
(Sixth Circuit 1981); and Cummins (Seventh Circuit 1982). In Broz 
(Eleventh Circuit 1982) the court uplield Wie Secretary's authority to 
enact regulaticns but held that individualized consideration must be 
given to the effect of age en each disability claimant. The adverse 
decision in Campbell has been responsible for a large number of remands 



30 



389 



in New York, Connecticut and Vermont. Tlie Secretary has had little 
success in obtaining stays of proceedings pending the Supreme Court's 
decision. The Sipreme Court's final decision is ej^^ected in FY 1983. 



31 



25-550 0-83 25 



390 



Appendix 

Organizational Chart 



Appeals Council 



Office of Appeals 

Operations 

Director 



Office of Management 
Services 
Director 



Commissioner 
Social Security Administration 



Office of the Associate Cormissioner 

for Hearings and Appeals 

Associate Comnissioner 

Deputy Associate Comnissioner 



Office of the Chief 
Administrative Law Judge 



Office of Field Administration 
Director 



Office of the Regional Chief 
Administrative Law Judge (10) 



Executive Secretariat 
Executive Secretary 



Special Counsel Staff 
Attorney Advisor 



Equal Opportunity 
Officer 



Lffice of Appraisal 
Director 



Office of Policy and 

Procedures 

Director 



37 



391 



OHA Regional Office and Hearing Office Locations 



Region I 

(BOSTON, MA) 



Boston, MA 
Hartford, CT 
Manchester, NH 
New Haven, CT 
Portland, ME 
Providence, RI 
Springfield, MA 



Region II 

(NEW YORK, NY) 



Albany, NY 
Bayamon, PR 
Bronx, NY 
Brooklyn, NY 
Buffalo, NY 
Camden, NJ 
Hato Rey, PR 
Hempstead, NY 
Jamaica, NY 
Mayaguez, PR 
New Yorit, NY 
Newarit, NJ 
Ponce, PR 
Syracuse, NY 
White Plains, NY 



Region III 

(PHILADELPHIA, PA) 

Baltimore, ^^D 
Charleston, WV 
Charlottesville, VA 
Harrisburg, PA 
Huntington, WV 
Jenklntown, PA 
Johnstown, PA 
Norfolk, VA 
Philadelphia, PA 
Philadelphia RHO, PA 
Pittsburgh, PA 
Richmond, VA 
Roanoke, VA 
Washington, O.C. 
Hllkes-Barre. PA 



Region IV 

(ATLANTA, GA) 



Atlanta, GA 
Birmingham, AL 
Charleston, SC 
Charlotte, NC 
Chattanooga. TN 
Columbia, SC 
Soraville, GA 
Florence, AL 
Fort Lauderdale, FL 
Greensboro, NC 
Greenville, SC 
Hattlesburg, MS 
Jackson, MS 
Jacksonville, FL 
Kingsport, TN 
KnoxvtUe, TN 
Lexington, KY 
Louisville, KY 
Macon, GA 
Memphis, TN 
Miami, FL 
Middlesboro, KY 
Mobile, AL 
Montgomery, AL 
Nashville, TN 
Orlando, FL 
Paducah, KY 
Raleigh, NC 
Savamuh, GA 
Tampa, FL 



Region V 

(CHICAGO, IL) 



Chicago (Downtown), IL 
Chicago, (South), IL 
Chicago RHO, IL 
Cincinnati, OH 
Cleveland, CH 
Columbus, OH 
Dayton, OH 
Detroit, MI 
Evanston, IL 
Evansville, IN 
Flint, MI 
Fort Wavne, IN 
Grand Rdplds, HI 
Indianapolis, IN 
Lansing, MI 
Milwaukee, WI 
Minneapolis, MN 
Peoria, IL 
Southfleld, MI 



Region VI 

(DALLAS, TX) 



Albuquerque, NM 
Alexandria, LA 
Dallas (Downtown), TX 
Dallas (North), TX 
Fort Smith, AR 
Fort Worth, TX 
Houston, TX 
Little Rock, AR 
McAlester, OK 
New Orleans, LA 
Oklahoma City, OK 
San Antonio, TX 
Shreveport, l_A 
Tulsa, OK 



Region VII 

(KANSAS CITY, MO) 

Brentwood, ,M0 
Oes ("oines, lA 
Kansas City, MO 
Kansas City RHO. MO 
Omaha, NE 
St. Louis, MO 
Wichita, KS 

Region VIII 

(DENVER, CO) 

Billings, MT 
Denver, CO 
Fargo, ND 
Salt Lake City, UT 



Region IX 

(SAN FRANCISCO, CA) 

Downey, CA 

Fresno, CA 

Honolulu, HI 

Long Beach, CA 

Los Angel es ( Downtown ), CA 

Los Angeles (West), CA 

Lynwood, CA 

Oakland, CA 

Pasadena, CA 

Phoenix, AZ 

Sacramento, CA 

San Bernardino, CA 

San Diego. CA 

San Francisco, CA 

San Jose, CA 

San Rafael , CA 

Santa Ana, CA 

Santa Barbara, CA 

Tucson, AZ 



Region X 

(SEATTLE, WA) 



Eugene, OR 
Portland, OR 
Seattle, WA 
Spokane, WA 



National HO, 
Arlington. VA 



As of November 1982 



33 



392 

PREPARED STATEMENT 

OF 

HONORABLE ELMO B. HUNTER 
UNITED STATES DISTRICT JUDGE 

FOR THE 
WESTERN DISTRICT OF MISSOURI 

AND 

CHAIRMAN 

OF THE 

COMMITTEE ON COURT ADMINISTRATION 

OF THE 
JUDICIAL CONFERENCE OF THE UNITED STATES 



BEFORE THE 



COMMITTEE ON VETERANS AFFAIRS 
UNITED STATES HOUSE OF REPRESENTATIVES 



ON 



JUDICIAL REVIEW OF VETERANS BENEFITS CASES 
AND THE AWARD OF ATTORNEY'S FEES 



JULY 21, 1983 



393 



Mr. Chairman and distinguished members of the Committee, I appreciate this 
opportunity to respond to your request for the views of the Judicial Conference of the 
United States on the question of vesting the United States District Courts or C .urts of 
Appeals with jurisdiction to review veterans' benefits cases. I appreciate this 
opportunity to present written views, and I regret my inability to appear in person; prior 
commitments, however, preclude my personal appearance. 

Background 

Under section 331 of Title 28, United States Code, the Judicial Conference of the 
United States is the policy-making body for the Judicial Branch of government. While 
the structure of federal court adjudicative forums is well-known — the district (trial) 
courts, the courts of appeals and the Supreme Court of the United States — the 
structural arrangement for the administration of the Judicial Branch is not well known. 
The Judicial Conference, chaired by the Chief Justice of the United States, is composed 
of the chief judges of the circuit courts of appeals and a district judge from each of the 
regional circuits. Accordingly, the Conference is composed of twenty-six judges from 
around the country who represent every level of the Judicial Branch. As members of the 
Judicial Conference, they serve as administrators and formulators of policy, not as 
members of a tribunal. The Judicial Conference establishes administrative policy for the 
court system and files recommendations with Congress concerning changes in law that 
impact upon the judiciary's ability to serve the public efficiently and economically. 

The Judicial Conference utilizes a committee structure, not unlike Congress', to 
evaluate administrative problems and policies and to evaluate legislation in response to 
Congressional requests. We consider numerous legislative proposals each year and we 
recommend what we believe to be the best approaches to be taken with regard to organi- 



394 



zation, jurisdiction, procedure and administration of the federal judiciary. The 
Committee on Court Administration, which I chair, has a variety of responsibilities to 
the Judicial Conference, not the least of which is overseeing the jurisdiction of the 
federal courts. My committee has a specific subcommittee composed of nine federal 
judges to carry out that responsibility. 

Most often, requests for comments on legislation affecting the federal courts are 
made by the House and Senate Judiciary Committees. They are the Committees with 
principal legislative and oversight authority and responsibility for the Judicial Branch of 
government. We also welcome your Committee's concern for the administration of 
justice, and will work with you when you request our views, as you have now. 

On a personal note, I should say that I have been a United States District Judge 
since 1965, have served on the Court Administration Committee of the Judicial 
Conference since 1969, and have chaired that Committee since 1978. 

Judicial Review of Veterans' Benefits Cases 

Let me now turn directly to the subject at hand. The ever increasing 
authorization of judicial review under specific statutes — without reference a concerted 
theory of judicial review — greatly concerns the Judicial Conference. The Conference is 
also very concerned about the subsidiary pattern of piecemeal erosion of the "American 
Rule" concerning attorneys' fees — the general "rule" that each party must bear the costs 
of legal assistance. Substantial judicial resources must be committed to specific 
requirements and interpreting ambiguous nuances of each statute. 

The specific question of vesting jurisdiction in the United States courts for 
reviewing cases involving the provision of veterans' benefits has been discussed for many 
years. Throughout the discussion, the answer consistently given the question has been 
negative. Many have argued, including the Veterans Administration, that to provide an 
adversarial method of decision-making beyond the Board of Veterans Appeals would drive 



395 



a wedge between the Veterans Administration and the men and women they serve. This 
may or may not be so. I will defer to more qualified opinions on that matter. The 
concerns of the Judicial Conference are limited to the administration of the adversary 
prooess of dispute resolution under the Constitution and statutes of the United States. 
Our business is case by case adjudication of individual rights, not the routine internal 
administration of agencies of the Executive Branch of government. We firmly believe 
that internal policy matters concerning Executive Branch administration are not within 
the province of the Judicial Conference. Our concern is therefore limited to whether the 
federal court system can effectively handle the caseload that would be created by 
legislation that is currently before the House. 

Twenty years ago, in 1963, the Judicial Conference initially disapproved of 
legislation to provide for the judicial review of decisions of the Administrator by the 
United States District Courts. The Conference then recommended that that review be 
vested in a special Executive Branch tribunal. Conf. Rept. March, 1963, p. 18. This 
position was reaffirmed by the Conference in 1978. Conf. Rept. March, 1978, p. 9. 
Constantly increasing caseloads in district courts, and our belief that it was not practical 
or desirable to impose additional case filings involving veterans appeals upon district 
courts animated our reaffirmation of the position that the review of veterans claims 
should remain exclusively with the Board of Veterans Appeals or be conferred upon a new 
Executive Branch, Article I court. Conf. Rept. September, 1981, p. 65. In addition, the 
Conference noted that imposition of such a caseload on district courts would have a 
consequential impact upon the courts of appeals and, ultimately, upon the United States 
Supreme Court. 

We still believe that, if Judicial Branch review is deemed desirable by Congress, 
that judicial review should be limited to the review of constitutional issues and questions 
of statutory interpretation. That fundamental duty is one the courts will always 
perform, regardless of the burden. This view was again reaffirmed last fall. Conf. Rept. 



396 



September, 1982, p. 65, The Judicial Conference emphatically recommends, however, 
that legislation that would impose repetitive review of factual questions concerning the 
provision of veterans benefits upon the district courts not be enacted. The provision of 
judicial review of factual determinations of the Veterans Administration would pose a 
substantial new burden for the district courts and at the same time would undermine the 
fact-finding process within the Veterans Administration. If appellate review of "limited 
decisions" of the district courts is authorized, it should be based upon the same 
procedures and venue as presently provide for review of decisions of the United States 
Tax Court. See. 26 U.S.C. S 7481 et seq. In this manner, factual determinations of the 
Veterans Administration would be accorded proper finality. Only questions of 
interpretation of statutory and constitutional law would be subject to review. 

The Department of Justice and the Veterans Administration have estimated, at 
various times, that judicial review of denial of veterans claims would result in 4,080 to 
4,600 new cases in the district courts each year. Estimates have been based upon the 
assumption that appeals from the Board of Veterans Appeals to the district court would 
parallel our workload experience with Social Security Act cases. Significantly, however, 
whQe the legislation that has been historically proposed to grant judicial review of 
veterans claims has been patterned on review of Social Security Act cases, there are 
substantial differences between the two. We believe the estimates have been both low 
and inaccurate. 

First, we should note that Social Security cases rose 31% in reporting year 1982 
over the previous reporting year. There is substantial fluctuation in this caseload, 
reflecting legislative and administrative policies. 

Second, the review of Social Security Act cases has been authorized for many 
years, and the administrative adjudicators have become somewhat attuned to the 
limitations imposed by judicial review and the requirements that judicial review 
imposes. The Veterans Administration concedes that there are certain additional costs 



397 



involved in the administration of the Board of Veterans Appeals, due to increased 
requirements of explanation of the factual record and the reasoning that underlies each 
decision. These new requirements will only be accommodated with time. In the 
meantime, the number of cases that might be remanded by the courts for want of a 
record sufficient to support a decision — under any standard imposed by statute — may 
be fairly assumed to be higher than normal. This may fairly be considered a "start-up" 
cost of judicial review. It is stLU a real cost in both administrative and judicial 
resources. 

Third, the costs of a "case" are multiplied by the number of times that an appeal 
is brought and remanded. In one bill currently pending before the House, a case may be 
remanded at the request of the Administrator at any time before an answer is filed. This 
remand on request may merely tie up court clerks' time with handling a case that may 
never be adjudicated. In addition, remand may be had for want of necessary factual 
determinations and, in the end, for reconsideration. This administrative/judicial tennis 
game will serve neither the administrative nor judicial systems weU. 

Finally, cm this point, I should note that increases in the size of the federal 
judicial system do not necessarily parallel increased workloads in the courts. Every two 
years the Judicial Conference surveys the need for additional judgeships. We currently 
have pending before the Congress requests for 51 additional district court judgeships and 
24 additional court of appeals judgeships from our 1980 and 1982 surveys. Even if we 
assume that the Veterans Administration's caseload estimates are correct, we should not 
assume that any consequential additional judgeships wiU be required as single judgeships 
in particular districts or that Congress will be forthcomming in creating needed new 
judgeships. If past is prologue, it may be years before stresses created by providing 
judicial review over veterans claims will be accomodated. At the same time, constant 
growth in the judicial system is highly undesirable in its own right. The traditional 
managerial concepts of span of control and chain of command may have already reached 



398 



their limits. Pending legislation before the House and Senate Judiciary Committees 
recognize that reality. 

Let me now turn to substantive, non-workload related reasons for our objections 
to broad authorization of judicial reivew of veterans claims in the Judicial Branch. 
Federal Judicial Branch growth and development has not been the singular province of 
the House and Senate Judiciary Committees for many years, and the result has been an 
unstructured — and often contradictory — growth in the jurisdiction of the federal 
courts. Proposals for the creation of Article I Executive Branch courts to review Social 
Security cases, immigration cases and other governmental benefits have acknowledged 
the panoply of inconsistent standards for judicial review of agency actions and have 
manifested an effort to fashion a more uniform policy approach to wisely "spending" 
Judicial Branch resources. The Judicial Code was last recodified in 1948, and a review of 
its provisions Qlustates a lack of uniform codification theory even then. For the branch 
of government that is principally devoted to the adjudication of cases and controversies 
involving fundamental rights, inconsistency and contradition in law are major impe- 
diments to effeciency and economy. We must suggest to you, as we have innumerable 
times to others, that the lack of a unified policy for judicial review is a great source of 
inconvenience and concern — not only to judges, but to the litigants, attorneys, and 
members of the Judiciary and Appropriations Committees of Congress. 

In addition. Judicial Branch review may not be purely beneficial to veterans; it 
may well be very costly. First, assuming sweeping, rather thtin limited, jurisdiction were 
to be vested in the district courts, and assuming that the veteran is successful there, 
there will be some delay in any award of benefits. In reporting year 1982, the median 
time from filing to disposition in United States cases in the district courts was fourteen 
months. If a veteran feels aggrieved by a decision of the Board of Veterans Appeals, this 
period of delay for review of a small claim may reaUy not be in the veteran's best 
interest. No priority should be given to veterans claims, or any other class of cases, due 



399 



to the unmanageable plethora of statutory priority provisions that already exist 
throughout the federal code. Thus, whatever may be the perceived benefits of providing 
for broad Judicial Brtinch review of veterans claims, the time involved may well be 
costty for the veteran. 

Accordingly, the Judicial Conference recommends against a sweeping authoriza- 
tion for district court judicial review of veterans claims. In the alternative, we suggest 
that, if Congress believes such judicial review is desirable, that such judicial review be 
limited to review of the statutory and constitutional interpretation. Review should be 
had either in the district courts on the limited basis of reviewing the record, or in the 
courts of appeals under venue similar to review of the decisions of the United States Tax 
Court. 

Attorney^ Fees 

A subsidiary issue that arises is the issue of whether attorneys' fees should be 
awarded. An example of this can be found in the bill passed by the Senate earlier this 
year and now pending before the House. 

The general rule — often referred to as the "American Rule," because the courts 
long ago decided to differ from the common law of England — is that each party is 
responsible for the payment of his or her own attorneys' fees. In short, while court costs 
may be taxable against the losing party, even the successful litigant will usually be 
required to absorb the costs of counsel. Many bills that would now grant jurisdiction to 
the courts also change this rule insofar as litigation arising under the particular statute. 

The Judicial Conference has for many years cautioned against this piecemeal 
erosion of the American Rule. If the Congress wishes to change the scope of taxable 
costs and fees in federal court litigation, that change should be made as a fundamental 
change of policy, not implemented through piece-by-piece disintegration of the American 
Rule. Accordingly, we have suggested, on several occasions, that Congress review the 



400 



entire question of taxation of attorneys' fees and establish a uniform policy. 

Today the Equal Access to Justice Act, 28 U.S.C. S 2412(d), provides that 
attorneys' fees may be awarded against the United States, if the court determines that 
the .position asserted by the United States was not "substantially justified", to an 
individual with a net worth not exceeding $1,000,000 or an organization with a net worth 
not exceeding $5,000,000. Even with this general provision, due to expire on September 
30, 1984, there are substantial problems of interpretation and substantial "satellite" 
litigation has arisen. First, the court must determine whether a party has "prevaQed" 
against the United States. Second, the court must determine whether the position of the 
United States was "substantially justified". Third, the court must determine the net 
worth of the individual or organization in order to determine whether the individual or 
organization is eligible to demand attorneys' fees. Thus, this most general, as well as 
many different specific provisions, create a significant workload of their own. 

The creation of a separate attorneys' fees award under a new grant of judicial 
review over veterans claims will create even more satellite litigation. The Veterans 
Administration, in an understandable assumption that litigation losses will not incur 
substantial attorneys' fees awards, has not estimated either the administrative or judicial 
costs. We are convinced, however, that there may well be substantial increased costs in 
terms of satellite litigation to the judicial system. Indeed, we may fairly speculate that, 
at the beginning at least, the possibility of an award of attorneys' fees will become an 
incentive to litigation — particularly where there is no disincentive from the threat of an 
award of attorneys' fees against an unsuccessful plaintiff. 

In addition, if we assume that jurisdiction is provided in the district courts, that a 
veteran is successful in a suit, that court costs will be automatically taxed and that the 
veteran may apply for attorney's fees, we are not free to assume he will emerge from the 
exercise as he anticipated he would. Historically, awards of attorneys' fees have been 
substantially less than the actual cost of counsel. Even a successful litigant who is 



401 



awarded a reasonable attorneys' fee will ultimately incur additional costs. How much the 
attorneys' fees, and subsidiary non-taxable costs of the litigation, will actually reduce an 
award of veterans benefits is difficult to estimate for the average case, but we may 
fairly assume that even successful litigants seeking veterans benefits will complete the 
process with less than that whic they expected. 

Accordingly, we urge Congress to consider the question of awards of attorneys' 
fees on a much broader policy ground. We recommend a general rule, rather than 
continued piecemeal erosion of the American Rule that has guided the courts for so long. 

Conclusion 

The Judicial Conference of the United States does not recommend the 
authorization of comprehensive or broad Judicial Branch review of veterans claims. A 
broad grant of judicial review will unnecessarily burden already overcrowded court 
dockets with repetitious review of factual determinations. If Congress ultimately 
determines that Judicial Branch review is desirable, that review should be limited to the 
record of the Board of Veterans Appeals and questions involving constitutional and 
statutory interpretation. Any grant of judicial review places not only a caseload strain 
upon the courts; it also must be considered in light of the overall theory of Judicial 
Branch review and the realities of economy and efficiency that influence resource 
allocation. 

In addition, if even limited judicial review is to be provided, the question of 
awarding attorneys' fees should receive more comprehensive consideration. The Judicial 
Conference believes that a uniform policy on attorneys' fees is far more desirable than 
the continued piecemal erosion of the American Rule. 



402 

September 29, 1983 



Mr. Lee Beck, General Counsel 
Legislative Affairs 
Administrative Office of the 

U.S. Courts 
Washington, DC 20544 

Dear Mr. Beck: 

As you know, the SubcoBUjlttee on Oversight and Investigations held 
a July 21, 1983, oversight hearing on the issue of Judicial review of 
veterans' claims. At that hearing, the Department of Justice was asked 
to provide the Subcomaiittee an estimate of the cost of providing judicial 
review. Their response is enclosed for your Information. 

In order for the Subcommittee to have the most complete information 
possible, it is requested that the Administrative Office of the U.S. 
Courts prepare an estimate of the cost of Judicial Involvement in the 
veterans' claims process. 

The hearing record will soon be ready to print; conseqtiently, we 
would like to have the estimate as soon as possible. If the informa- 
tion is not received in time for publication, we will, of course, retain 
it in the permanent files of the Committee. 

Sincerely, 



G. V. (SONNY) MONTGOMERY 
Chairman 



403 



ADMINISTRATIVE OFFICE OF THE 
UNITED STATES COURTS 

WASHINGTON. D.C. 20544 



^^T20 1983 



WILLIAM E. FOLtH, I Z (j IMK^ WILLIAM JAMES WELLER 

DIRECTOR " 'WUO LEGISL»T1VE AFFAIRS 

OFFICER 
JOSEPH F. SPANIOL. JR. 
DEPUTY DIRECTOR 



October 13, 1983 

Honorable G. V. Montgomery 

Chairman '""'■'. 

Committee on Veterans' Affairs 

335 Cannon House Office Building 

Washington, D. C. 20515 

Dear Mr. Chairman: 

Thank you for your letter of September 29, 1983, requesting the views of the 
Administrative Office on the costs that would be incurred if Congress provided for 
judicial review of veterans' benefits cases. Based on the assumptions stated below, and 
the Department of Justice's suggestion that 4,100 cases would be filed, we estimate the 
cost to be approximately $5,634,000 in the first year for the requsite new judgeships and 
a recurring cost of approximately $4,424,000 each yesu- thereafter. 

Any estimate of costs associated with a new provision for judicial review must 
ultimately rest on the scope of review to be provided and the forum designated for that 
review. There must be a strong nexus between these two elements or costs will be 
greatly increased by the fact that judges will be required to perform functions that are 
not traditionally performed as a part of their duties. 

The Department of Justice suggested in their letter to you, dated September 26, 
1983, that they envision approximately 4,100 additional cases arising under a proposed 
arrangement for judicial review of veterans' benefits claims. We believe this estimate is 
based on the judicial review rate of Social Security Act cases in the district courts. We 
note that this estimate comports with past estimates made by the Department of 
Justice. We also note that in the reporting yesu- ending June 30, 1983, Social Security 
Act cases rose 58.6% over last year. 

If we accept the Socitd Security Act model of review and caseload, utilizing raw, 
unweighted cases, the caseload would suggest a possible need for at least ten additional 
district court judgeships in addition to the present corps of judges and over and above the 
51 district court judgeships previously requested by the Judicial Conference. We cannot, 
however, anticipate that veterans' benefits claims will parallel Social Security Act cases, 
and thereby assign the appropriate weighting developed by the 1979 Federal District 
Court Time Study to such district court case filings. Certain non-quantifiable factors, 
such as the relative inexperience of counsel with the statute (as contrasted with a well 
refined Social Security Act practice) and the lack of precedent for the determination of 
jurisdictional, procedural and substantive issues must be recognized. Additionally, we 
cannot project the distribution of this caseload among the district courts. We, therefore, 
must project on the basis of the nationwide csiseload, rather than weighted load per 
district. We are also apprehensive that the assumption that 4,100 cases would be filed is 
low; at least in the first years of litigation under any new provision, the actual number of 
persons who feel aggrieved will be significant. Other factors, such as incentives to 
litigate caused by provisions for the shifting of attorneys' fees to the government, will 
further increase the amount of litigation. Nonetheless, utilizing this conservative 



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Honorable G. V. Montgomery 
page 2 

estimate of 4,100 raw cases, and assuming that the Judicial Conference would request 
and Congress would authorize the necessary additional judgeships, an appropriation of 
$4,380,000 would be required in the first year to establish staffing and facilities and 
$3,320,000 would be required each year thereafter to maintain these judgeships. These 
figures do not include clerks' office functions that would require an additional 44 deputy 
clerks based on the work measurement formula for district court clerks' offices approved 
by the Judicial Conference in March, 1982. This would result in an additional cost of 
$1,254,000 in the first year and $1,104,000 each year thereafter. 

Consequent costs in terms of appeals filed in the United States courts of appeals 
cannot be reasonably estimated. Caseloads and costs in the courts of appeals cannot be 
reduced to a quantifiable fwm based on assumptions about the filings in the district 
courts. Vesting review directly in the courts of appeals, on the record, with an 
appropriate appellate standard of review, would be even more expensive in terms of 
direct costs. 

Finally, we should note that the court system is already overburdened. The 
Judicial Conference has previously requested that Congress authorize 51 additional 
district court judgeships and 24 court of appeals judgeships based on 1980 and 1982 
Biennial Judgeship Surveys. The 1984 Survey has already begun, and caseload indicators 
suggest that additional judgeships may be requested. The judicial system cannot continue 
to grow in deference to mounting caseloads; the system has already reached the limits of 
elemental management concepts of span of control and chain of command. Accordingly, 
the Judicial Conference has long advocated such measures as repeal of diversity of 
citizenship jurisdiction and has recommended against the enactment of additional 
jurisdictional provisions unless a clear need has been illustrated. We do not believe that 
a clear and convincing case has been made for judicial review of vetertms' benefits 
claims, and, indeed, continue to be of the view that provision of judicial review will ill 
serve the veterans themselves. 

Sincerely, 

./ .^/' - 

Leland E. Beck 
Counsel 

o