RESOLUTION No. 280

COMMITTEE TO REVIEW PRESENT STATUS AND ACTIONS OF BOARD OF VETERANS APPEALS Whereas during the last 25 years, there has been no improvement in the procedure under which the Board of Veterans Appeals is authorized to function making it evident that some change for the better is warranted and necessary, and

Whereas resolutions have been submitted to this convention calling for a correction of the present situation in regard to personnel and decisions of the Board of Veterans Appeals, and

Whereas legislation has been introduced in the present session of Congress which would amend the Veterans Benefit Act of 1957 identified as Public Law 85-56, and provide a court of review, which court would have the power and authority to review decisions rendered by the present Board of Veterans Appeals, and

Whereas it is further noted that the Veterans' Affairs Committee of the House of Representatives has indicated that action may be taken by that body in the next session of Congress regarding the Board of Veterans Appeals, and

Whereas the Veterans of Foreign Wars recognize the far-reaching effect of any action on this question, it being their continuing obligation to render the best possible assistance to the veterans and their dependents and the Government of the United States of America, and

Whereas we do not approve of the establishment of a separate court outside of the Veterans' Administration, and

Whereas we contend that ample authority now exists within the powers of the Administration whereby any inadequacies, particularly as to the appellate authority on the part of the Board of Veterans Appeals can be eliminated and/or corrected: Now, therefore, be it

Resolved, by the 59th National Convention of the Veterans of Foreign Wars of the United States, That in accordance with the established policy of the Veterans of Foreign Wars that we continue to oppose any effort to divide the responsibility for the administration of veterans laws and continue our insistence that the Veterans' Administration be kept intact; and be it further

Resolved, That inasmuch as there has not been sufficient time or material available for this committee to completely and adequately study the complex situation as it now exists, that we recommend to the commander in chief as follows:

1. That a committee be appointed with sufficient funds and authority to make a complete review of the present personnel and operations of the Board of Veterans Appeals.

2. That this committee shall consist of such specialists as needed from the national rehabilitation staff and department service officers.

3. That the committee be composed of sufficient members to complete the investigation fully and expeditiously.

4. That upon the completion of the review the chairman of the committee shall make a complete written report to the commander in chief including all facts, findings, and recommendations.

5. That this report be completed and presented prior to the convening of the next session of Congress.

Pursuant to this resolution, the then commander in chief, John W. Mahan, appointed a special study committee, whose membership consisted of the commander in chief and past commanders in chief of the Veterans of Foreign Wars, to conduct the study and come up with recommendations for the Administrator of Veterans Affairs.

After due deliberation and study, this VFW special study committee made recommendations which were presented to the VA for appropriate consideration. The reply to these recommendations was received by the VFW in a letter from the Veterans' Administration, dated August 14, 1959.

Shortly after receiving this reply, the 60th Annual Convention of the VFW got underway in Los Angeles, Calif. Because of the lack of time to properly evaluate the VA response to the committee's rec

ommendations as contained in this letter, the 60th national convention simply reaffirmed the previous resolution of our 59th convention as outlined above.

Thus, the official position of the Veterans of Foreign Wars with respect to the bills under consideration has not changed since August

1958.

Since that time the rehabilitation service of the VFW has been in close contact with the Veterans' Administration and has met on several occasions with VA officials respecting this resolution.

Mr. Norman Jones, the director of our rehabilitation service at this time will outline the developments that have occurred since the conclusion of our 60th annual convention. In addition, Mr. Jones will point out the reasons that the rehabilitation service of the VFW believes that the present system of processing appeals by the VA is adequate, subject to the limitations he will point out.

Mr. QUIGLEY. Mr. Jones, we will be glad to hear from you.

Mr. JONES. Mr. Chairman, perhaps I should first extemporaneously preface my remarks by explaining that my testimony will be at considerable variance with some of the other witnesses of yesterday and this morning.

Mr. QUIGLEY. We hear all kinds all the time. Do not let it embarrass you.

Mr. JONES. Mr. Chairman and members of the subcommittee, the Veterans of Foreign Wars believes that, with limited exceptions, any person adversely affected by a decision of the Veterans' Administration should have the right of appeal. To be effective and equitable, an appellate system must be informal, uncomplicated by complex procedures, afford full hearing rights with right of rehearing on allegations of error, and have the capacity to adequately consider and equitably determine all properly appealed questions at issue within a relatively short period of time. In August 1958, the 59th National Convention of the Veterans of Foreign Wars adopted Resolution No. 28, which was reaffirmed by the 60th national convention in August 1959, expressing opposition to the establishment of a special court of review, and, in fact, to any type of judicial review of decisions of the Board of Veterans Appeals, except existing authority for judicial consideration of certain insurance questions.

Unquestionably, review of numerous decisions of the Board of Veterans Appeals by a special court or by other Federal courts would result in favorable action and reversal of Board of Veterans Appeals decisions in some instances, although probably in only a minute segment of the total cases determined by the Board of Veterans Appeals and in our opinion, in only a relatively small percent of the cases appealed for the purpose of judicial review.

There is no valid indication of probability of more liberal consideration of questions at issue by a special veterans court. The Board of Veterans Appeals considers nearly 40,000 cases yearly. If most or all persons aggrieved by decisions of the Board of Veterans Appeals were privileged to appeal to a special court at minimum cost, it is logical to conclude that a large number would do so.

In such event, it is difficult to envision a special court of the necessary capacity to consider and decide all cases appealed for consideration of such court within a reasonable time. The right of appeal to the regular Federal district courts, with subsequent appellate rights to

higher Federal courts, would probably be more expensive to the claimants and would create an undue burden for such courts. The VFW believes that the Administrator of Veterans Affairs should be charged with complete responsibility for administering laws enacted by the Congress of the United States providing gratuitous benefits for veterans and their dependents. It is believed that the establishment of a special court would violate this principle, and would place on the VA an administrative burden out of proportion to the good that might be achieved.

In some instances, the Board of Veterans Appeals has issued negative decisions in cases in which we think the questions at issue should have been favorably determined, although in most denied cases it cannot be logically contended that the Board of Veterans Appeals decision is contrary to the preponderance of evidence.

Establishment of a special court with authority to reverse Board of Veterans Appeals decisions only in those instances in which the Board of Veterans Appeals decision is contrary to the preponderance of evidence, or in which reasonable doubt was not resolved in favor of the claimant, would not, in our opinion, result in many favorable decisions by such court. We believe it would only create false hope in the minds of many aggrieved by Board of Veterans Appeals decisions who sincerely, although not necessarily correctly, believe that the evidence in the file commands favorable action.

Apparently a negative decision by a special court or other Federal court would preclude reconsideration of the same issues based on the same evidence by the Board of Veterans Appeals. Although reconsideration requests are limited in number, it is our considered opinion that this procedure affords an excellent opportunity for further consideration of selected cases, and should be retained. We have obtained favorable Board of Veterans Appeals decisions in some instances after several reconsiderations.

It might appear logical to presume that disagreement with some Board of Veterans Appeals decisions would unquestionably motivate advocation of some higher appeal level for consideration of such cases. However, in our opinion, disagreement with a relatively limited number of decisions at a certain appellate stage does not of itself justify recommendation for the establishment for a further appeal privilege. If this principle were followed to its ultimate objective, it would be logical to urge the establishment of a sufficient number of ascending appeal echelons until all cases which we believe have merit are favorably considered. Any appellate structure must have a vertical summit.

The VFW as an organization is not wholly satisfied with current policies, procedures, and some individual case decisions of the Board of Veterans Appeals. The immediate objective of the Veterans of Foreign Wars is improved operation of the existing appellate structure within the Veterans' Administration. We believe that in most respects the Administrator of Veterans Affairs now has ample statutory and discretionary authority to correct any existing inadequacies within the Board of Veterans Appeals.

In response to Resolution No. 280, adopted in August 1958, the commander in chief of the VFW appointed a special committee, composed of the current commander in chief and the four most recent past commanders in chief, to thoroughly analyze the complex struc

ture, policies, procedures, and decisions of the Board of Veterans Appeals, and to submit appropriate recommendations for correction of delineated inadequacies, and for improvement to the Administrator of Veterans Affairs. After review of staff studies and completion of independent research, this committee adopted and submitted several recommendations to the Administrator of Veterans Affairs early in 1959. I shall discuss the most important of these recommendations, the responses of the Administrator of Veterans Affairs to date thereto, and our staff evaluation of such responses.

The 11 three-member sections of the Board of Veterans Appeals operate basically independently. Each section considers and issues decisions in an average of approximately 15 cases per working day. In view of the voluminous evidence which must be carefully studied by the associate members, 15 cases per working day is a fantastic workload with the understandable but inescapable result that far too much responsibility is delegated or relegated to consultants.

It is our opinion that, in many cases, probably in the majority of cases considered by the Board, consultants review the evidence and prepare drafts of decisions prior to review of the evidence by any of the associate members responsible for the final decisions. In cases not involving extreme controversy or unusual representations by accredited representatives of service organizations or other appropriately interested persons, it is natural, in our opinion, for the associate members to rely heavily on the consultants and approve proposed decisions without the intended thorough consideration of all of the evidence in the record by the individual associate members. Regardless of any arguments to the contrary, the 15 cases per day workload of each section of the Board obviously supports this judgment.

We are pleased, however, that the Chairman of the Board, and the Administrator, have agreed to conduct a 30-day test operation of our recommendation that responsible associate members review all evidence and determine disposition of appeals before reference to consultants for preparation of decisions consistent with the expressed basic determinations of the sections of the Board concerned.

We have no objection whatsoever, to associate members requesting consultants to furnish research material prior to determinations by the associate members, provided such research material is presented without expression of personal opinion as to indicated conclusions by the consultants concerned. We recognize that adoption of our recommendation requiring associate members to first determine basic decisions prior to preparations of drafts of decisions would require additional associate members.

The present number of 33 can be increased to 50 without statutory change provided adequate funds are appropriated. If more than 50 should be needed we urge that Congress authorize the required number of associate members. Although our opinion is not firm at this time, it is possible that the number of consultants could be correspondingly reduced.

The Board of Veterans Appeals freely grants reconsideration requests. However, a request for reconsideration is submitted to the same section of the Board which made the original determination, and until recently, was reconsidered solely by the three-member section which issued the prior negative decision. We recommended that par

ticularly well qualified associate members be selected to serve as members of one or more sections to consider cases submitted for reconsideration. For several reasons, most of a legal nature with which we do not necessarily concur, the Administrator has stated that adoption of this recommendation as submitted is not feasible.

The Chairman of the Board of Veterans Appeals, however, recently notified us that the Administrator has approved implementation of the substance of this recommendation. Hereafter, if a request for reconsideration is granted, the Chairman may augment the original section of three members by the addition of another section of three members which did not participate in the original decision. This procedural change applicable to reconsideration requests will, we believe, prove to be distinctly advantageous, and we desire to express appreciation to the Chairman and the Administrator for its adoption,

Our study of the operation of the Board of Veterans Appeals resulted in the amazing discovery that despite the large volume of cases and questions determined, less than 15 dissenting opinions per year were recorded by associate members during the period of 1948 to 1958. It is incredible that men of reason and conviction would unanimously agree in such an astounding majority of decisions. The Chairman of the Board likewise expressed concern with the minute number of dissenting opinions and recently instructed and encouraged associate members to freely file dissenting opinions in the event of disagreement, and to include a statement of the dissenting members' views in the decision, if warranted. Recently, we have noticed a slight increase in the number of dissenting opinions but unfortunately by only a small number of associate members, with isolated exceptions. We believe justice would be better served by a greater degree of adherence to personal convictions with minimum inclination to agree with the majority simply because to dissent appears to be futile.

We have not been entirely satisfied with application of the principles of aggravation by service, consideration of length and type of service, and resolution of reasonable doubt in favor of claimants. In response to our recommendations concerning application of these principles, the Chairman of the Board of Veterans Appeals has indicated the importance of these principles will be strongly stressed.

Although not peculiarly a fault of the Board of Veterans Appeals, we believe the Board does not accord sufficient consideration and credence to affidavit evidence, particularly lay affidavits. Current regulations provide that full credence shall be given to evidence submitted in proper form in support of claims, unless there is sound basis to doubt the alleged circumstances contained in the statement because of contradictory evidence or other convincing reasons. The Chairman has agreed to intensify his efforts to insure that the Board follows the letter and spirit of instructions pertaining to affidavit evidence. For many years, only members of the legal and medical professions have been appointed as associate members of the Board of Veterans Appeals, although lay persons previously performed efficiently as associate members, and many continue to serve effectively as occupational members of rating boards in field stations.

The VFW committee recommended that a lay member participate in the consideration of each case involving evaluation of factual evidence, although recognizing that this recommendation could be im