If I may ask you this: Just getting right to the crux of the matter, what is it that you see that is most wrong with the administrative review that we have now, that needs, in your judgment, corrective action by way of the establishment of a court of appeals?

Mr. DEVINE. To put it in very basic terms, the present Board of Appeals isn't like the ladies that retain a prerogative of changing their mind. The Board of Review is reviewing itself all the time, and they generally are going to follow on the basis of their rules of evidence the same decisions that they have heretofore rendered, and it seems to me an independent judicial review, using the legal preponderance of the evidence test, would be more to the benefit and would provide more justice and equity to the veterans.

Mr. MITCHELL. Do you find in your experience in working with the veterans' claims, with the Board of Appeals, that in many instances the record is incomplete?

Mr. DEVINE. Yes, I do.

Mr. MITCHELL. Under the bill which you have introduced, would it be possible for the new court to remand to the Board of Appeals cases in order that they may obtain a more complete record?

Mr. DEVINE. Remand as such? No, Mr. Chairman; but we have provided that the court through its Commissioners shall take additional testimony and evidence. I mean, that is an angle that I think perhaps should be investigated further-whether they would have the power to remand back to the Board.

Mr. MITCHELL. But you clothe the Commissioners with the authority to then complete the record as they receive this?

Mr. DEVINE. Yes.

Mr. MITCHELL. What do you set forth as the qualifications and the number of the Commissioners as proposed in your bill?

Mr. DEVINE. I think so.

On page 7, line 5, Mr. Chairman, it says, "The court may appoint not more than 50 Commissioners." And of course they are subject to removal, and so forth, by the court. Each Commissioner shall receive a basic rate of $14,800 per year, if you were considering the compensation, plus the per diem allowance and things of that nature. Mr. MITCHELL. And the qualifications?

Mr. DEVINE. We set no specific qualifications. That should be determined by the court itself.

Mr. MITCHELL. You give to the members of the court the power to set forth the qualifications?

Mr. DEVINE. Yes.

Mr. MITCHELL. Do you, in the legislation itself, provide as to the location, that they will be located in various parts of the Nation, or will be permitted to travel to various parts of the Nation?

Mr. DEVINE. Of course, the court itself would be within the Veterans' Administration, but the Commissioners could travel throughout the country.

Mr. MITCHELL. When you say "the court itself would be within the Veterans' Administration," do you mean physically? Or how? Mr. DEVINE. Physically.

Mr. SAYLOR. So, Mr. Devine, by that, you would not want to make this court a part of the Veterans' Administration?

Mr. DEVINE. Merely for expediency, for housekeeping purposes. That is correct.

Mr. SAYLOR. And for convenience of access to central office files? Mr. DEVINE. Files; that is right.

Mr. SAYLOR. Now, the Commissioners which the court would be authorized to appoint-it is my understanding of your proposition that they would be authorized to hold hearings and to assimilate evidence from any place in the country where they sat.

Mr. DEVINE. That is correct.

Mr. SAYLOR. And the people who would appear before the Commissioners could be either the claimant himself, a veteran, could be a representative of one of the veterans' organizations, or an attorney, if he so chose?

Mr. DEVINE. That is correct. The fact is that the court itself should set the attorney fees, in the event an attorney is in the picture.

Mr. SAYLOR. In other words, if there is an attorney, you feel that it should be not the usual attorney-client relationship of contract for fee on a percentage basis, but that the court should be authorized to set whatever fees are paid?

Mr. DEVINE. Specifically on page 6, line 6, it says:

The court, as a part of each judgment or decree entered, shall determine or allow reasonable fees for attorney or attorneys of the claimant or claimants, and apportion same, if proper.

Mr. SAYLOR. Very frankly, I think that is an excellent provision. Having seen dissatisfied claimants in lawsuits before other courts, I think this is a very, very good provision.

Mr. DEVINE. Thank you, sir.

Mr. MITCHELL. Mr. Devine, in connection with what the gentleman from Pennsylvania was just referring to, you state, on page 5:

Attorneys naturally would argue the law before the court, but service officers and attorneys could request appearances and submit evidence to the Commissioner.

It is my construction of that that when a matter was finally accepted for review by the court, the appearance there would only of course be briefs and oral arguments by attorneys before the court.

Mr. DEVINE. Yes; that is correct.

Mr. MITCHELL. But, as I am sure you are quite well aware, certain service organizations have objected to the fact that their service officers, those who are not lawyers and not admitted to practice before the court, could not have appeared. But you, in your bill, provide that they could represent the veteran before the Commissioner. Mr. DEVINE. Yes.

Mr. MITCHELL. And would it be your suggestion that should your bill be enacted into law, the service organizations would put on their staffs, if they saw fit, attorneys to represent before the court?

Mr. DEVINE. I would leave that up to the individual organizations, the VFW and so forth, if they saw need to employ an attorney. And if their veterans' benefits man was not qualified, I suppose they would do so. But I would leave that up to their independent judgment.

Mr. MITCHELL. This is a question that may be most difficult for you to answer; but you have designated the figure of 50 as the number of Commissioners, you have set forth quite accurately, according to my information, the number of cases which are handled by the Board of Appeals each year, and pointing out that the Board has some 37 members. How many of the 47,000 cases that you have pointed out

the Board handles annually, do you think would be appealed to the Court of Veterans' Appeals, or whatever name it may have?

Mr. DEVINE. Oh, I would say a very small number. Of course, we are dealing in speculation and percentages.

Mr. WOLFE. According to the information I have, about 6 to 10 percent of the cases appealed to the Board of Appeals are allowed. That would leave quite a majority of cases turned down, which would be susceptible to appeal to an independent court.

Now, of that amount, I think we would have a quite large caseload; but it would again depend upon the review by the court and the Commissioners as to whether the court would entertain such an appeal, whether the case has merit, and whether the claimant actually could get people to represent him before the court.

Mr. MITCHELL. I know it is most difficult and I would say almost impossible to conjecture as to the number that would be appealed beyond the Board of Appeals; but the thought that comes to my mind, and on which I would like your thinking, is this: Say that initially such a court was created. It might be flooded and overburdened with a number of appeals annually. But do you think, because you would have a court that would set precedent, which precedent would be followed by the administrative agencies-not only the Board of A Appeals but on down to the regional offices-that this might, in a period of time, cut down the number of appeals?

Mr. DEVINE. I would anticipate that initially, in the event this court was set up-I imagine in the first year they would be flooded with claims. And of course the court itself will determine how many it. can accept jurisdiction over. But as you have indicated, Mr. Chairman, with a great deal of wisdom, they will set precedent. They will make decisions. And of course the Boards on down below its level will of course accept that as precedent for future hearings.

Mr. MITCHELL. So you think the precedent, uniformly, is one of the things that is lacking in the administrative review today?

Mr. DEVINE. That is correct.

Mr. MITCHELL. Thank you very much, gentlemen.

Mr. DEVINE. I appreciate the opportunity of appearing before the subcommittee.

Mr. MITCHELL. We appreciate certainly your appearance before the subcommittee. And it shows not only your interest but your recognition of an extremely serious problem that confronts, I think, all of the people, not only the Veterans Administration but all of the people of the Nation.

Mr. DEVINE. Thank you, Mr. Chairman.

Mr. MITCHELL. We are happy at this time to welcome before us our colleague, Congressman John McFall of California.

You may proceed, Mr. McFall.

STATEMENT OF HON. JOHN J. McFALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. McFALL. Mr. Chairman, I appreciate the opportunity to testify today in support of H.R. 947, which is identical to H.R. 8375 of which I am the author.

The purpose of this legislation is to establish a U.S. Court of Veterans Appeals, composed of a chief judge and four associate justices,

which would have exclusive jurisdiction to review by appeal all decisions of the Board of Veterans Appeals.

I am convinced there is a real need for this legislation.

Today the veteran has no place to go after being denied his claim by the Appeal Board which is an arm of the executive branch of Government.

Although the cases may be few, I personally know of instances in which I feel certain that the appeal of the veteran would have been sustained had we some opportunity to present his case under the rules of law.

In addition to being restricted in its review, the present Appeals Board is working under a backbreaking caseload.

I am informed that over the past 10 years, the Board of Appeals has decided an average of 47,000 cases a year. This is an amazing caseload-an average of 16 cases daily for each of the three 12-member boards.

Any organization composed of human beings is subject to mistakes in judgment, and the tremendous pressure of this caseload cannot help but be a factor in these mistakes, few in number, possibly, but tragic to the veteran involved.

Furthermore, much of the caseload of the Appeals Board comes from the review and re-review, of the cases denied. A final appeal court would end this burden.

The function of the court would be simple:

Any claimant aggrieved by a decision of the Board of Veterans Appeals could, within 1 year from the date of mailing notice of such decision, make application to the court for a review of such decision.

The findings of the Board of Veterans Appeals would be conclusive on the court unless such findings were contrary to the preponderance of the evidence or unless all reasonable doubts had not been resolved in favor of the claimant.

For good cause the court could remand the case to the Board for further evidence.

In summary, the legislation is designed to give the veterans of our Nation the protection of the courts that they have been long denied and which they richly deserve and I urge your favorable consideration. Mr. MITCHELL. Thank you, Mr. McFall.

The next witness to appear on this legislation will be our colleague, Mr. Moulder.

I believe you have a prepared statement, Mr. Moulder. You may proceed.

STATEMENT OF HON. MORGAN M. MOULDER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI

Mr. MOULDER. You will recall that Congress increased compensation rates to disabled veterans and their dependents during the 85th Congress over the opposition of the Veterans' Administration. Then the agency in overriding the prerogative of Congress and in an effort to keep the cost of the veteran programs at its previous level conducted a review of service-connected disability cases throughout the country. Consequently, thousands of deserving, disabled veterans were thrown off the VA rolls. My bill would stop such arbitrary and dictatorial

decisions where the welfare of our veterans are concerned. It provides three distinct rules for determining whether or not a disability is service-connected.

First, the bill sets forth that all persons in service for 6 months or more shall be presumed to have been in sound physical and mental condition at enlistment, excepting for defects noted or where there is clear and unmistakable evidence to show an unsound condition existed prier to enlistment.

Secondly, in establishing service-connection, that two or more medical statements shall be deemed sufficient evidence to establish the eligibility of the veteran.

Thirdly, that any issue or point of evidence in controversy that is in doubt shall be resolved in favor of the claimant. If any question arises over the testimony offered in behalf of the veteran, the bill I have introduced would require the Veterans' Administration unequivocally to substantiate their position in attempting to refute the veteran's claim.

It seems to me a reasonable rule of evidence is necessary to stop the VA's arbitrary abuses of their bureaucratic power in denying many veterans the compensation they are due without proper regard for the evidence which has been submitted in their behalf.

This bill would return to the rolls those veterans who were thrown off by the arbitrary action of the Veterans' Administration in trying to cut down the cost of veterans programs.

Further, this legislation would provide that a claimant dissatisfied with the final decision of the Board of Veterans Appeals may file an application for judicial review in the district court of the United States by filing petition to show good probable cause for such review. At the present time there is no redress from the bureaucratic abuses of the power of presumption by the Veterans' Administration and therefore many veterans are denied justice. And I feel that this bill

is necessary because in all fairness to the veteran, he should have the opportunity of obtaining justice from the Government which he has served unselfishly.

Mr. MITCHELL. Thank you, Mr. Moulder.

I will place in the record at this point a communication addressed to the chairman of the subcommitte from the Deputy Attorney General, Mr. Lawrence E. Walsh.

(The communication referred to follows:)

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C.

Hon. ERWIN MITCHELL,
Chairman, Subcommittee of the Committee on Veterans' Affairs, House of
Representatives, Washington, D.C..

DEAR MR. CHAIRMAN: This is in response to your letter of March 16, 1960, advising that a special subcommittee of the House Committee on Veterans' Affairs has scheduled hearings on proposals to establish an independent appeals agency with appellate jurisdiction over administrative decisions of the Veterans' Administration relating to claims of veterans and their dependents.

Your letter indicates that the committee is primarily interested in the views of this Department with respect to the general philosophy involved in connection with the establishment of an independent appeals agency and a termination of the finality of the Administrator's authority as provided by existing law and that it would be unnecessary to cover technical objections to any of the bills forwarded with your letter.