situation. A copy of our sampling report was furnished the Department of Veterans Benefits. The Board of Appeals is working directly with field stations whenever problems arise. Through survey teams and other supervisory facilities, the Department of Veterans Benefits is also striving to eliminate the problem. Published instructions for development of claims and appeals appear adequate. The problem in one of continued and persistent policing. BVA and DVB are cooperating to that end.

The Board, of course, subscribes to your view that it should not be satisfied with anything less than complete development of remanded cases. To further this, instructions have recently been issued to sections to insure that remand decisions carefully explain what is to be done and if necessary, why the development is desired. Instructions concerning requests for field examinations require for example that very detailed directions be included in the decision so that the examiner may be in no doubt as to whom he should contact, where they may be found and what data he should secure.

There is only one slight and insignificant difference between the Board's and your proposal. Very occasionally it is found that though development was not completed in toto, the evidence procured was clearly sufficient for disposition of the appeal. In these rare cases, the Board does not insist that the development originally requested be completed since no useful purpose would be served. Omissions of this character are frequently brought to the attention of the responsible authorities.

COMMITTEE RECOMMENDATIONS No. 7 AND 13

Each section of the Board decides an average of 15 cases per day. In addition, each section conducts formal hearings. The workload is obviously excessive and precludes through analysis of evidence.

Consultants frequently prepare proposed decisions without first conferring with section members. Section members should review cases first and advise consultants what disposition should be made.

To lessen the workload, the number of associate members should be increased to 50-the statutory limit. Authority for more members should be requested, if necessary.

RESPONSE

Although our present system for deciding appeals has worked very successfully for over 25 years, we are not in the least inclined to arbitrarily reject your suggestion. These and other innovations have been discussed at lengths.

In operations of the magnitude of ours, basic changes cannot be accomplished overnight. Operating programs, projections of workload, staffing patterns, and budgetary estimates must be and are formulated and approved for considerable periods in the future. In addition to management personnel within the Board, such changes are of immediate concern to other top VA staff officials, the Executive Office of the President, and the Congress.

I am frankly doubtful that your proposals would give section members more time per case or that any better product would result.

If each section reviews an average of 15 cases per day, the present 11 sections would review an average of 165 cases daily.

Expanding the Board to 50 members, each three-man section would review only 9.9 (approximately 10) cases per day.

You propose, however, that no case would be initially reviewed by a consultant-this function would be performed by an associated member.

Let us see how we visualize the process. The case would first be reviewed by the three section members who, after consultation, would indicate the desired disposition. The case would then go to a consultant for preparation of a decision. Under law, appeals must generally be decided in order of the appearance on the appellate docket. Uusually, this would mean the consultant would not reach the case for 1 or 2 weeks. Overall, it might well be 3 weeks or more before a tentative decision could be submitted to the section. It would then be necessary for the section members to conduct a second case review, if for no other reason, to satisfy themselves that the facts were completely and correctly stated.

To maintain an average of 10 decisions per day, the section would then have to conduct initial review of 10 cases each day and in the same period conduct final review of 10 additional cases-a total of 20 critical case reviews as contrasted with the 15 now cited as excessive.

True, the total time on any one case would be increased; but the time permitted for any single review would be lessened and the initial and final reviews would be so separated in time that memory would rarely span the gap. If we assume a 3-week interval (the minimum anticipated) it can readily be seen that, during this time, the members would have seen 298 other cases. It is apparent that few people could retain details of this many cases over the time indicated.

A second review of a case should and probably would take less time. On the other hand, the section member now sees a substantial percentage of cases only after an experienced consultant has:

(a) Clarified any administrative problems.

(b) Identified the issues.

(c) Marked salient evidence.

(d) Pinpointed legal and medical problems.

(e) Performed necessary research.

Your staff, of course, is fully cognizant of the meticulous care required for thorough case review. As an aid to your distinguished committee, I would like to cite an example or so to indicate the time-consuming factors. These are typical situations recurring on an everyday basis:

1. Only recently, the Board received an appeal for service connection for a neurological disease, first diagnosed 3 or 4 years after discharge. Affidavit evidence was vague and inconclusive. The veteran has been hospitalized 9 months in service for treatment of a gunshot wound and had seven other periods of hospitalization for treatment of acute illnesses and injuries. The claims folder was 3 to 4 inches thick. Detailed study of these records disclosed that during treatment for nasopharyngitis the reflexes were noted to be abnormal. Nurses' notes, covering a different period of treatment, revealed complaints which, in retrospect, could also be associated with neurological disease. One would not suspect anything of this nature would be contained in either of the medical reports especially as the attending physicians did not deem them worthy of notice. In fact, neither entry was referred to by the veteran, discussed by the rating board or pointed out by the accredited representative. The case review was time consuming and would generally have been fruitless but, in this instance, it resulted in a justifiable allowance of service connection by the Board.

2. In the period immediately after World War I, reports of physical examinations were not always of the caliber of those at later dates. In particular, entries were made of valvular heart disease in many cases and often with no findings at all to support a diagnosis of any organic heart disorder. With advancing years (age 55 to 60) many of these veterans developed arteriosclerotic heart disease. Almost invariably claim was made based upon reported heart disease shortly after separation from service, 30 to 40 years earlier. In each case, the appellate determination must be made on the merits of the individual case. The claims folders are often voluminous, yet page by page study of each document is generally essential. It is no exaggeration to say that several hours or an entire day may be required. If the consultant does nothing but identify and mark pertinent material, he fills an indispensable role as a timesaver for section members in these cases.

3. A large percentage of cases require research before any conclusion can be reached. In domestic relations fields, the laws of the various States must be determined and court decisions surveyed. In medical cases, the Board is confronted with many novel problems-the effects of radiation-of spinal anesthesia-of administration of various vaccines. If even one member of a section should attempt this research, the operation of the section would be seriously impaired.

It seems to us that, under the proposals, 50 members would

(a) Not carry the current caseload; or

(b) Spend less time per day on the individual case than the present system affords.

Having said all this as to our doubts, let us say contrarywise, that we are by no means convinced we are correct. We do not have a negative attitude to ward any constructive suggestion, for we are more interested than anyone in finding ways and means to lessen the caseload on associate members. We have delayed this report, partly in the hope that the Board's caseload would permit it to make a trial of your proposals in at least one section of the Board. Unfortunately, the Board has not been able to do it nor can it now, at least until the summer season has passed. At that time, it will most seriously consider finding out how these recommendations may work in practice.

UNNUMBERED RECOMMENDATION

This was not included in the committee's final report attached to letter to me, dated January 6, 1959. However, it was presented by your staff to the committee for consideration and I feel you would wish to be furnished the information set out below.

More frequent and definite reassignments of associate members within the structure of the BVA would be beneficial.

RESPONSE

Superficially, the observation that many members of the Board have held their present position for many years would appear correct in a very few instances.

The Board sincerely feels that among its greatest advantages, is the fact that, through specialization, it can develop persons who can bring expert konwledge to bear on particular types of cases. This is a luxury which can rarely be enjoyed at lower levels.

The Board, however, is not unmindful of the pitfalls you refer to. The most exaggerated example of the problem you pose would appear to be that of one associate member who has been chairman of the same section for 10 years. To illustrate how deceiving appearances are, the composition of the associate members of this section has been changed 14 times in these 10 years and the jurisdictional assignments of the section have been changed 15 times. It can be seen that it is principally on paper that this situation lends any support to the proposition advanced.

In the 10-year period April 1949-April 1959, associate members averaged changing from one section to another a little more frequently than once a year. The average section underwent change in makeup of associate members approximately 1.9 times per year. Frequent alterations in jurisdictional assignments have also been routine practice.

In summary, I think it appropriate to express appreciation for the serious approach at your convention to the question of what, if any, changes should be made in the VA's appellate structure, the obviously searching and thorough staff work in your organization, and the high caliber of the consideration accorded by your distinguished committee. It is my profound conviction that all operations within the VA should be subject to challenging review, internal if not external, that we should not be complacently satisfied with even the best of our operations, but should always strive for and seek out means of improvement. It is my equally profound conviction that objective analyses and studies by organizations such as yours, based on your extensive experience and expert knowledge, and reflecting the needs and desires of your membership, afford most valuable and constructive assistance to us in our self-analyses and our efforts to provide the best service possible. It is in this spirit that all concerned approached the matter at hand and this unusually lengthy communication was formulated.

Sincerely yours,

(Signed) Sumner,

(Typed) SUMNER G. WHITTIER, Administrator.

VETERANS OF FOREIGN WARS OF THE UNITED STATES,

Hon. SUMNER G. WHITTIER,

Administrator of Veterans' Affairs,

Veterans' Administration, Washington, D.C.

Washington, D.C., March 8, 1960.

DEAR MR. WHITTIER: Recently I and several members of our staff conferred with Messrs. Morse, Monk, and Stancil concerning the operation of the Board of Veterans Appeals. Recommendations previously submitted by the Veterans of Foreign Wars and your response thereto under date of August 14, 1959, were discussed. We agreed to submit the points emphasized during this discussion for more formal consideration.

We previously recommended that a lay member participate in the consideration of each case. This recommendation was rejected. We urge further consideration of this recommendation. We recognize that laymen selected for appointment as associate members of the Board of Veterans Appeals should have some

experience although not necessarily in actual individual case disability determinations. We would not expect the Federal Government to appoint individuals to such positions without appropriate experience due such positions.

We previously indicated that insufficient consideration is accorded affidavit evidence particularly lay affidavits. While there has been some improvement in this regard perhaps as a result of the general improvement in responsiveness of decisions to contentions and evidence, we continue to notice some cases in which a statement is merely made that affidavits of several individuals are of record, with no indication as to the reasons for not according such evidence sufficient credence to justify a favorable decision despite contrary evidence.

We commented previously on the almost complete absence of dissenting opinions. We have noticed a slight increase in dissenting opinions since the Chairman has devoted personal attention to this subject. Nevertheless, dissenting opinions continue to be minimum and are expressed by only a minority of the associate members.

We believe our recommendation that special procedures should govern reconsideration requests deserves most careful consideration. We are happy to know that the Chairman of the Board of Veterans Appeals is considering the adoption of a system which would at least partially satisfy this recommendation.

The present workload which requires that each section of the Board decide an average of approximately 15 cases per day is not, in our opinion, conducive to a thorough consideration of the evidence and just and fair decisions. We believe the section assigned responsibility for an individual case should initially determine the basis decision. Apparently, under present procedures, consultants study the evidence and prepare suggested decisions prior to study of the evidence by any associate member. The only procedure available to accredited representatives to insure initial consideration by associate members is to appear before the Board members for a formal hearing. This is a time-consuming practice and if carried to the extreme would cause associate members to devote most of the time to the actual conduct of formal hearings. We realize that to reduce the case workload sufficiently to permit associate members to study the evidence and direct basic decisions prior to reference of the case folders to consultants, except for research purposes, would require additional associate members.

The national welfare and service committee of this organization, acting as a special subcommittee, is obligated to prepare and submit a report concerning the Board of Veterans Appeals to the next national convention in August 1960. I have been directed to prepare an initial draft for the committee's consideration. I shall, therefore, appreciate a further reply concerning our recommendations and particularly the specific points mentioned in this letter not later than June 15, 1960. if possible. I would be pleased to participate in a further personal conference at the convenience of the appropriate members of your staff. Sincerely yours,

NORMAN D. JONES, Director.

VETERANS' ADMINISTRATION,

Mr. NORMAN D. JONES,

BOARD OF VETERANS APPEALS, Washington, D.C., March 25, 1960.

Director. National Rehabilitation Service, Veterans of Foreign Wars of the United States, Washington, D.C.

DEAR MR. JONES: Reference is made to our recent conference with the Deputy Administrator in which it was agreed that definitive response to certain recommendations of the Veterans of Foreign Wars concerning the Board of Veterans Appeals would be made prior to June 15.

This is not the final response, but there are certain developments of which you may wish to inform your committee before that time.

The committee recommended that requests for reconsideration of appellate decisions be referred to a section of the Board other than that responsible for the original decision. This has been studied in great detail.

It has been concluded that the substance of the recommendation can be accomplished. The Administrator has approved the procedure that, upon granting a request for reconsideration, I may augment the original section by the addition of another section which did not participate in the original decision. This will, we believe, insure the objectivity of the action and still preserve the singlereview appellate concept directed by statute. It will also be somewhat analogous

to the procedure in the Circuit Court of Appeals for the District of Columbia whereby a litigant dissatisfied with a decision of a three-judge panel may petition for rehearing by the entire nine-judge court (en banc).

The foregoing procedure may be invoked upon request with justifying argument from a claimant or his representative, or by the Board on its own motion, and is effective immediately. With your continued cooperation, we are confident we can, on the one hand, freely offer reconsideration where it is felt an error of fact or law had been committed, and, on the other hand, contain the volume within reasonable and manageable boundaries.

Your committee also recommended that the number of associate members be increased at least to the statutory limit of 50, and that sections of the Board determine the disposition of appeals before reference to consultants for preparation of decisions.

Staff planning for a full-dress trial of that part of the recommendation concerning initial review by associate members was completed quite some time ago, but, as you know, our caseload, together with demands of the traveling section program have been such that we could not afford to implement them. Fortunately, by all-out effort, we have just now succeeded in reducing our pending load to our initial objective (6,500 cases in this office).

Allowing for an essential transition period, a complete test of the recommendation will still be commenced this month and continued for about 30 days. Statistical analysis of factors such as time, production, quality, and ultimate disposition of appeals will take time, but the results will be available before June 15.

The question of staffing for the Board and its effect on the quality of our decisions (reasoned explanation-discussion of contentions, etc.) is of paramount concern to me. The survey immediately underway and others planned for the very near future will give us a better idea as to the validity of our thinking on these lines. You will be kept informed.

At our recent conference you also discussed your views on dissenting opinions and the appointment of lay associate members. These matters will be dealt with in a later communication.

I wrote you on February 23 of our action to follow up on remanded appeals. Although this was not a recommendation from your committee, I trust they will view it as another evidence of our desire and intention to improve the quality of appellate service in every way possible.

Sincerely,

JAMES W. STANCIL, Chairman.

Mr. QUIGLEY. I have one final question. I do not know whether you have ever taken a stand on this or if you have a personal opinion, but do you, personally, or does the VFW, have any position on the desirability of repealing the present law which permits the veteran a right of appeal in an insurance case?

Mr. STOVER. To the best of my knowledge, we do not have any position with respect to such a proposal.

Mr. ASHWORTH. It is a contract.

Mr. STOVER. We do not have any position on it, but, as I understand it, the insurance contract is appealable to the courts by virtue of the guarantee of the Constitution of the United States that any contractual right cannot be interfered with by the enactment of a law. Maybe there is some other exception, but, generally, that is the basic exception to all VA claims.

Mr. QUIGLEY. I appreciate that.

Mr. Stover, Mr. Jones, and all the rest of the representatives of VFW, we want you to know we still love you. I think we happen to be here in one of those rare instances where we find ourselves something less than in complete agreement with you, yourselves, and your fine organization, or our fine organization-we are part of it, and the next time I see your national commander I am going to ask him, in an off-the-record discussion, where he was when Resolution 280 was