Mr. QUIGLEY. I am not denying the existence of the precedent, but I do have some doubt about the validity of the trend.

Mr. SAYLOR. Let me apologize for not being here to hear your full statement, but there was a full committee meeting of the Interior and Insular Affairs, and I had an important matter dealing with the new State of Hawaii, and a matter that actually affected the jurisdiction of this committee, so I was torn betwixt and between, and, since I knew I had a friend testifying, I decided to take a chance to go over and take care of this bill.

I am happy to report that the omnibus bill for Hawaii was reported out to the full committee, favorably.

Now, let me ask you several questions:

Do you feel, and does your organization feel, that at the present time the Board of Review is not giving full effect to the presumptions which Congress has requested; that it had to give, in the case of all veterans, namely, a rebuttable presumption of soundness, when a man enters the service, and, secondly, a presumption that all reasonable doubt in every case should be resolved in favor of the veteran?

Mr. CASH. Mr. Saylor, as has been pointed out in the 10 individual cases that we cited this morning, to be incorporated into the record, we feel that there are instances cited in these cases which reveal that reasonable doubt is not always resolved in the veteran's favor, and we hope to show in these cases instances where it is not.

Mr. SAYLOR. I might tell you that it has been my own observation that, in many cases which I have been interested in, of veterans in my own district, I feel that the Board has not resolved these matters in favor of the veteran.

Now, whether or not they are doing it consciously, I do not know. I know that I read the statements; that they pay lipservice to these orders of Congress, but in actual practice it just does not happen.

I would like to ask you this-and this is a matter now where we get a little bit beyond your immediate organization, and we might be getting into philosophy on the question-as to whether or not you know of any reason that the Veterans' Administration and the Board of Veterans Appeals would have to take such a positive stand against having anyone else look at their decisions?

In other words, I am trying to find out what happens to them in the Veterans' Administration and in the Board of Veterans Appeals; as to why they think that they have become so perfect that no one else should take a look at it?

Now, when someone assumes that attitude, very frankly, my first inclination is to assume that they must be trying to hide something because, very frankly, no Congressman can go down and examine it.

This committee does not have a big enough staff to go down and examine all of the cases which they handle and, of course, we never hear any complaints about the ones on which they decide favorably, and the only thing we are going to do, and, very frankly, the procedure that has been suggested-or was suggested yesterday by Mr. Devine and by the American Bar Association-would not allow a review in every case, because, after certain cases had been established, the precedents were established by the court, the cases would fall into certain definite categories and your field examiners conducting a thorough hearing would be able to say, "There is justification for an appeal or there is not."

Now, I would like to have your comments on this phase of the proposition.

Mr. FRIBLEY. I feel like you, Congressman, and I have often asked myself why the VA would oppose a separate review, as has been proposed by several bills that have been introduced at this session of Congress, and I find myelf wondering why they would do so.

First of all, it is hard to answer my own questions, in regard to their wanting to be against it, unless it would be that, since they are a bureau of the Government, they like to think of themselves as being perfect, and overlooking the fact that we are all humans, and we all make our own mistakes, and certainly I know that they make their mistakes, but it might be a little bit difficult to have a bureau admit that they make mistakes, in order to save face before their fellow man. Apparently, that is the only way I can see it.

Mr. SAYLOR. Well, they admit that they make mistakes, because they reverse themselves.

Mr. FRIBLEY. Yes, sir.

Mr. SAYLOR. Now, if they reverse themselves, they cannot be right both times. So, all of this legislation is recognized, that we should let somebody else get a chance to look at this. Very frankly, I want to commend your organization for coming forward and testifying in favor of these bills. In other words, our Founding Fathers set up three branches of government.

The first section they set up, of course, was the legislative, and the second section under the Constitution sets up the executive, and the last section sets up the judicial, and I cannot, for the life of me, understand why any group would say that they are representing a segment of our veterans organizations and refuse to allow them one-third of our Government. That is what they are doing. It, to me, is just something that I am having a bit of difficulty in understanding.

Mr. FRIBLEY. I wish to assure you the Disabled American Veterans have discussed this phase of it many different times in their conventions in years past and through our conferences, and sometimes we might find ourselves out alone, but in the end we feel that, as long as we keep the interests of the service-connected disabled veterans at heart, we can do no wrong.

Again, I want to thank you, Mr. Chairman.

Mr. QUIGLEY. Thank you, Mr. Commander. I will make just this one comment. I think I now better understand why the VA has taken its present position on the pending legislation. I think I understand that better than I understand why Congress, in the first place, decided that the veterans alone should not have the right of a court of appeals. I think the blame must rest with the Congress, because we decided in the past, in this particular instance alone, that the decision of the administrative agency was going to be final and there was not going to be a court of appeal.

Mr. SAYLOR. I might comment to my colleague that, if he had been here yesterday, I did bring up the fact that we followed the pattern that England set up and, lo and behold, when England suddenly discovered that their boards were not doing right by the veterans they immediately reversed themselves. We have not been quite as smart as the English.

Mr. QUIGLEY. Maybe we will get smarter.

तए

Thank you, Mr. Commander, Mr. Freudenberger, and Mr. Cash. We appreciate your being here, and your fine statements.

We will now hear Congressman Rodino. Mr. Rodino, we are very glad to have you here.

STATEMENT OF HON. PETER W. RODINO, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. RODINO. Mr. Chairman, I want to thank the committee for this opportunity to submit a statement in support of my bill, H.R. 5986, to permit judicial review of decisions of the Board of Veterans Appeals in compensation and pension claims.

Under present law, the only VA decisions which are reviewable in the courts are those involving Government life insurance (38 U.S.C.A. 784). Review of compensation decisions is precluded by 38 U.S.C.A. 211(a), which directs that "no other official or any court of the United States shall have power or jurisdiction to review any such decision." This provision, or one to the same effect, has been part of the law since veterans' pensions were originally established by the Congress.

Although the judiciary generally looks askance at congressional attempts to preclude review, it has, in this area, accepted the congressional directive. Almost without exception, the courts have refused to review compensation and pension appeals on the theory that the payments involved are not rights, but mere "gratuities."

Thus, the veteran today has no recourse beyond the Board of Veterans' Appeals. Many bills have been introduced in prior Congresses to remedy this situation, and I am hopeful that this committee will see fit to act favorably on one or another of the measures before it this session.

The reasons for allowing the veteran to take his pension claim to the courts are the same as for judicial review of other administrative decisions: it is essential to our concept of justice and fair play. The courts are traditionally the best protector of individual rights and the best insurance against arbitrary administrative action. We can be sure that Government will operate fairly and judicially only if we permit the courts to keep a judicial eye on Government operations. For these reasons, judicial review should be available for every administrative proceeding which has a substantial effect on the individual petitioner.

The idea that a veteran's pension is a mere gratuity or privilege, therefore not requiring the same judicial safeguards as a property right, does not bear close examination. Pensions are not given the veteran as charity; they are given for good and sufficient reason and for services rendered. To treat them as a gratuity falsely minimizes the veteran's sacrifice and service.

In any case, as leading writers in the administrative law field have pointed out, the "gratuity" theory is basically irrelevant. Professor Davis, for example, in opposing its use by the courts, has said:

* The Government is still the Government, even when it is dispensing bounties, gratuities, or privileges. We want it to be fair no matter what the activities may be. Often the best way to assure Government fairness is by relying upon judicial enforcement of the usual concepts of fairness.- (Kenneth Culp Davis, 70 Harvard Law Review 193, 225.)

The writer went on to make the further point that, even if there is no "right" in the legal sense, to a pension, once the pension program is established there may be a very definite right to have the program administered with the highest degree of fairness that can be provided. (Ibid.)

We must remember that we are dealing with a program which directly affects a vast number of citizens, many of whom may never have a more significant contact with an administrative agency. The impression they get of the fairness of the whole governmental operation may depend on their treatment in this one case.

With all these considerations in mind, therefore, I urge that this committee approve legislation to provide judicial review for pension and compensation decisions of the Veterans' Administration. My bill, H.R. 5986, would provide review by direct appeal to the existing Federal courts. I favor this approach for the following reasons:

1. There is no reason to believe that this measure would flood the dockets of the courts, which admittedly are crowded. The expense of taking the case through this further litigation will undoubtedly serve to discourage trivial or capricious appeals. On the other hand, even though only a few cases may actually be taken to the courts, the very fact that review is available will both inspire confidence in the system and act as a check on possible arbitrary action by the administrative agency. Moreover, it will be noted that my bill does not authorize review by the Supreme Court, where concededly it would be a great burden.

2. By permitting review in the existing courts we guarantee that the reviewing authority is entirely independent of the administering agency, and, also, that it will not adopt a fixed attitude toward this class of cases such as is likely when the reviewing authority has been especially set up to hear only that class of cases.

3. The scope of review which H.R. 5986 provides is liberal enough to make the review meaningful, and at the same time restrictive enough so that the agency's decisions are not disregarded. Under section 4009 (b) the Board's findings are to be conclusive if they are supported by a preponderance of the evidence. Reversal is possible only if they are contrary to a preponderance of the evidence, or if they are contrary to law. On the other hand, the court may hear additional evidence, or if they are contrary to law. On the other hand, the court may hear additional evidence if there is a showing of good cause.

I might add that I would not oppose the setting up of a special court for veterans' cases, if this is the approach which the committee ultimately approves. However, I should like to suggest, in line with point 2, infra, that such a court not be composed of permanent members, but instead be a court to which judges from the existing judiciary may be appointed on a rotating basis.

Mr. QUIGLEY. Thank you very much, Mr. Rodino.

STATEMENTS OF FRANCIS W. STOVER, DIRECTOR, NATIONAL LEGISLATIVE SERVICE; AND NORMAN D. JONES, DIRECTOR, NATIONAL REHABILITATION SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; ACCOMPANIED BY WYMAN H. CHADWICK, REGIONAL FIELD REPRESENTATIVE; ROBERT L. ASHWORTH, ASSISTANT CHIEF OF CLAIMS; GERALD H. WHITE, CHIEF APPEALS CONSULTANT; AND JOHN D. FAGAN, LEGAL CLAIMS CONSULTANT, MEMBERS OF THE NATIONAL REHABILITATION SERVICE STAFF, VETERANS OF FOREIGN WARS OF THE UNITED STATES

Mr. QUIGLEY. We will next hear from, I believe, Mr. Stover, director of the national legislative service for the VFW.

It is good to see you, Mr. Stover.

Mr. STOVER. Mr. Chairman and members of the subcommittee. I have with me Mr. Norman Jones, director of our rehabilitation service and also seated here with me, right behind me, from left to right, is Mr. Robert Ashworth, our assistant chief of claims; Mr. Wyman Chadwick, our regional field representative; Mr. Gerald White, who is our chief appeals consultant, and Mr. John Fagan, from Hazleton, Pa., who is our legal claims consultant.

Mr. QUIGLEY. Well, we welcome all of you, but particularly Mr. Fagan, because at the moment this subcommittee is made up of Pennsylvanians.

Mr. STOVER. Mr. Chairman and members of the subcommittee, I deeply appreciate this opportunity and privilege to appear here today before this subcommittee to present the national viewpoint of the Veterans of Foreign Wars with respect to pending bills which would create a court or other authority to independently review denied claims and decisions of the Veterans' Administration. For the record, my name is Francis W. Stover, and I am the director of the national legislative service of the VFW.

As I understand it, one of the principal purposes for this hearing is to inquire into the adequacy of the present appeals system of the VA. As you know, the VFW operates a nationwide rehabilitation program with VFW service officers located in every VA regional office in every State in the Union.

Consequently, the VFW has accumulated considerable knowledge and experience representing veterans at every stage and level of the VA claim process, and the VFW is very deeply concerned with any inquiry that looks toward any possible organic or fundamental changes in the present claims and appellate structure of the Veterans' Administration.

The proposals being considered this date have been under official consideration by the VFW since August of 1958. Two years ago at the VFW's 59th Annual Convention, which was held in New York City, August 17 to 22, 1958, a resolution was adopted, outlining the position of the VFW concerning court review of VA claims and decisions. This resolution reads as follows and includes some of the thinking and reasoning behind this official position of the Veterans of Foreign Wars: