19 year later they said he did have a hearing problem and awarded him a small (10%) disability rating; however, this was revoked in 1971 but restored again in 1972 after the veteran appealed. Somewhat incredulously, the VA recently reversed itself again and said no disability.

It required a great deal more than $10 worth of my time and I'm not exactly compensated at prime rates-to merely follow all the shifts and reversals in the VA's position, and I must confess that after studying all the VA documents it is still not clear to me why the VA reversed its earlier position and has denied his benefits. The VA may contend that it acts in the veteran's best interest, but that does not mean that its explanations are written so that every veteran can comprehend them. They may not be as complicated as an indenture agreement, but they are not the model of simplicity.

This veteran's understandable irritation in realizing that the VA “giveth and taketh away" is compounded by his frustration caused by the VA's refusal to provide him with the records on which it bases its decisions. This veteran, being smarter and more articulate and persistent than most, has asked the VA for copies of his service records on which the VA based its decision that his hearing problem was not service-connected. It is a fundamental principle of American jurisprudence, as well as of common notions of fairness, that each side to a dispute ought to have access to the documents on which the otherparty relies. In this case it is virtually impossible for this veteran to effect a meaningful appeal without the basic documents which are the foundation of the VA's decision. This veteran needs a lawyer. A lawyer would not tolerate the VA's erratic behavior or its refusal to provide the veteran with his medical records. This man knows he needs a lawyer and he wants one, but §§3403 and 3404 prevent him from having one. When I reluctantly told him I could not assist him, his plaintive plea, which was mixed with anger, irritation and extreme frustration, was "Who can help me?"

The third case involves a Vietnam veteran and received considerable notoriety several months ago. In this instance an Army soldier was wounded in the head, arms and body by booby-trap shrapnel while on a combat operation in Vietnam. After being discharged from the Army, his eye continued to bother him, so he applied to the Veterans Administration for further medical treatment. Repeated trips to the VA office were of no avail; the VA unilaterally decided that because he had received an undesirable discharge, he would not reecive VA benefits. As a result of the VA's ruling, he was forced to go to a municipal hospital where, at his own expense, surgery was performed and his eye was removed. A lawyer would have advised this veteran that his discharge was not an automatic bar to benefits and would have helped him prepare his administrative appeal.2 If the appeal failed, it seems likely that his lawyer would have sought some immediate court action to allow the veteran to be treated at a VA hospital, instead of having to pay out of his own pocket for treatment of an injury which he received in Vietnam.

These are not isolated incidents of persons who would have benefited from the assistance of counsel. Nor are these cases unique in their complexity. My files are filled with letters from veterans and their dependents who have been denied benefits and are in need of legal assistance to help them wage their battles. Many have expressly declared their willingness to pay a lawyer to help them.

Since the trend is toward increasing the availability of legal assistance, one might understandably be puzzled by a law which has the opposite effect. Additionally, since it is contrary to common notions of justice and fair play to deny someone the right to a lawyer, the burden should be on those who would continue the law which effectively denies veterans full and adequate representation. The historical justification for the limitation is that it prevents abuses by lawyers—that is, it prevents lawyers from extracting exorbitant fees from veterans and their dependents, thereby reducing the amount of the benefits

2 The law does not automatically bar benefits to veterans with less-than-honorable discharges; the VA decides whether the veterans with a "bad" discharge receives benefits, and the criteria it applies in making that pronouncement are whether the discharge resulted from "moral turpitude" or "willful and persistent misconduct." It might be noted that the strict manner in which the VA has applied these vague and subjective criteria has resulted in over 90% of veterans with less-than-honorable discharges being denied benefits. For example, during a five-month period in 1972, 1,305 veterans with "bad" discharges applied for educational assistance; only 91 were granted.

they receive. Admittedly, lawyers should be prevented from depriving a veteran of a substantial part of his benefits, but the ten dollar ceiling effectively denies the veteran the assistance of counsel and quite possibly, therefore, of any benefits. The veteran might well prefer to pay an attorney and have his benefits reduced accordingly rather than receive no benefits at all. At the least, this should be the veteran's choice.

Although past abuses may justify some limitation (and the recent notoriety lawyers have received may support an unhealthy distrust of the profession). nevertheless the $10 restriction is major surgery when the application of an antiseptic would suffice. A few rotten lawyers should not preclude veterans from retaining an honest lawyer if they so desire. The advent of no-fault divorce in California and a few other states has led to some attorneys' charging fees which bear little relationship to the amount of work they do. The solution to correcting these abuses is not to prohibit parties in a divorce proceeding from retaining a lawyer if they want one, and no one has seriously suggested such a massive surgical approach.

Experience with other federal agencies has demonstrated that lawyers can be awarded a fee sufficient to provide them with an incentive to handle cases, while at the same time regulate those who would abuse fee provisions. For example, representing claimants before the Social Security Administration is an area ripe for abuse by unethical attorneys. The solution to that problem, however, has not been as radical as is the $10 limitation. Congress has limited the amounts which attorneys may receive for representing social security claimants, but the limitations are reasonable. Essentially, Congress has provided that the Social Security Administration must approve any fees, and in determining what is a reasonable fee the Secretary has established certain criteria such as complexity of the case and amount of time spent on the case. The specific criteria are not as important as is the fact that Congress has not engaged in "overkill" in addressing the problem in the social security benefits area, and that what it has done indicates that the abuses can be controlled with regulations less drastic than the $10 limitation.

A second reason often given in defense of the $10 limitation is that various veterans' organizations provide free representation. The VA in fact boasts that approximately 25 veterans' organizations have offices in the VA building itself. It should be noted, however, that most of these representatives are not lawyers. Moreover, it has been suggested that the existence of these representatives in the same building as the VA has created an almost kinship relationship which is not conducive to the optimal operation of the adversary system. Furthermore, and by far most important, eliminating the ten dollar restriction will in no way cause the veterans' organizations to discontinue their services. To the extent that they provide a laudable and much needed service by representing veterans without charge, they could and should continue to do so. All that eliminating the ten dollar ceiling would do is to give the veteran the choice of whether to be represented by a compensated lawyer or by someone willing to provide free representation.

Finally, the absence of lawyers in VA proceedings has been defended on the grounds that it is not an adversary proceeding and therefore lawyers are not necessary. This position is inconsistent with the fact that the VA does not oppose participation by the veterans organizations representatives. More important, the more than 20,000 persons who had their appeals denied in FY 1972 might find little consolation from the fact that VA has chosen to label the proceedings as "non-adversary." Denying a veteran a lawyer because the VA has determined that the proceedings are "non-adversarial" is akin to denying a criminal defendant a lawyer because the judge says he will be fair. It would seem that if the VA is in fact acting in the best interests of the veteran and his dependents, then it should have no objection to opening up the procedure to the scrutiny and skills which a lawyer would bring to the process.

The issue is whether a veteran is to be denied the right to be represented by a lawyer if he so chooses. I respectfully submit that the traditional reasons offered-viz., abuses, availability of veterans organizations representatives and the alleged non-adversarial nature of the proceedings-do not justify the denial of such a basic and fundamental right. Additionally, there are positive reasons why lawyers should be encouraged to participate. Not only might it result in more veterans' receiving benefits, but more veterans would be made

aware of their right to receive benefits and especially of their right to appeal in the event the VA initially denies benefits.

Many veterans, especially those with less-than-honorable discharges, are not even aware of their rights to receive benefits from the VA, and even fewer veterans or dependents ever exercise their right to appeal after being denied benefits. According to the chairman of the Board of Veterans' Appeals, less than 2% of the denials are ever appealed. More specifically, during a fivemonth period in early 1972, out of 1,305 applications for educational benefits from individuals with less-than-honorable discharges, only 91 were granted. Yet, for the entire fiscal year 1972, only 100 individuals with "bad" discharges appealed to the Board of Veterans' Appeals for review of the VA's decision to deny them benefits.

Since the appeals process is internal-i.e., within the VA and not to the courts-it is not surprising that more veterans do not appeal. If benefits are denied upon initial application, the veteran must file a "notice of disagreement," which initiates review by the same office which issued the initial denial; if this "second-look" results in denial again, the veteran may appeal to the Board of Veterans' Appeals. In other words, in order to appeal, the veteran must somehow believe that although the VA has once told him "no," if he asks again the answer might be "yes." This is contrary to his military training and experience, and the statistics support the common sense realization that the same agency which said no is not likely to say yes. For example, in FY 1972 only 13.9% of the appeals were successful upon initial review, and the Board of Veterans' Appeals granted benefits in only 13.4% of the cases which it reviewed. A lawyer, however, would appreciate the value of an appeal within the agency, and his assistance might result in these statistics being more favorable to the veteran.

Two other laws need to be amended in order to assure that veterans are afforded their full rights within the VA system. The first is a statute which prohibits judicial review of any decision by the Veterans Administration. 38 U.S.C. §211. I submit that it is indefensible that an agency of the United States Government which is dealing with such vital rights of its constituency should operate free of the scrutiny of judicial review. The CIA may have a need to operate in secret, but not the VA. Again, if the VA is truly protective of the interests of veterans, it should not fear judicial review. The law prohibiting judicial review of a VA determination should be repealed immediately.

Second, a VA regulation prevents anyone representing a veteran from contacting any member of Congress for assistance in the processing of the veteran's claim. 30 C.F.R. §14.648. The regulation further states that any attorney seeking such aid shall be subject to an inquiry respecting his competency to represent the veteran and shall forfeit his right to a ten dollar fee. While the threat of this forfeiture may not be an effective deterrent, I think it is clear that this regulation is not only ridiculous but probably unconstitutional because it prevents constituents from petitioning Congress, a right guaranteed under the First Amendment.

In conclusion, if any monetary limitation is to be set on the amount which an attorney may receive for representing a veteran, it must be a realistic sum so that the effect is not to force veterans to "go it alone" without the benefit of legal assistance. A bill introduced in the House-H.R. 8846-would raise the ceiling to $100, with the provision that if the veteran is successful upon appeal to the Board of Veterans' Appeals or the courts (H.R. 8846 also contains a provision allowing judicial review of VA decisions), the VA must pay the attorney a reasonable fee as well as reimburse the veteran for the $100 first advanced by him. If $100 also seems low or arbitrary, a second possibility would be to limit the hourly rate which a lawyer could charge.

Perhaps the best solution would be a system similar to that used by the Social Security Administration. An attorney representing a claimant seeking benefits administered by the Social Security Administration must submit his claim for fees to the Administration. In filing his claim, the attorney states the specific amount requested and includes the number of hours spent on the case and an itemization of expenses. In evaluating the request for a fee, the Administration considers the complexity of the case, level of skill and competence required, amount of time spent on the case and results achieved. These are also the criteria adopted by many federal courts in setting attorney's fees

in pro bono cases. I refer this Committee to 42 U.S.C. §406 and 20 C.F.R. $404.975-977 for more details about the system used by the Social Security Administration which I respectfully submit is far more equitable than the present VA system-which really is not a system, but a blanket denial of legal representation.

I thank you again for the opportunity to have appeared here today and hope that your efforts will result in legislation which will provide veterans with the legal representation which they deserve and need.

[Reprinted from TROUBLED PEACE: An Epilogue to Vietnam-The Nader Report on Vietnam Veterans and the Veterans Administration]

(By Paul Starr with Jim Henry and Ray Bonner (Prelim. Draft))

THE IMPASSIVE VA

Contrary to widespread belief, federal law does not bar the Veterans Administration from dispensing benefits to most less than honorably discharged veterans. Were the agency to change its own procedures, new legislation would, in fact, not be necessary to permit VA hospitals to offer drug treatment to men with less than honorable discharges. The VA is also in a position to extend educational assistance to veterans who are perpetual unemployment statistics. But because of the way the VA has applied the law and the way it interprets its social functions, the agency has not made such assistance available.

According to the law, benefits are available to all veterans who received discharges "under conditions other than dishonorable." Anyone who received an Honorable or General Discharge is unambiguously entitled to benefits. Anyone who received a Dishonorable Discharge is unambiguously excluded from benefits, as is someone issued a Bad Conduct Discharge by general court-martial. Undesirable Discharges and Bad Conduct Discharges issued by special courtmartial constitute the "gray area." If a veteran has one of these and more than six out of every seven Vietnam veterans with bad discharges do-the VA makes an independent determination whether or not it was issued under dishonorable conditions.

The agency has adopted its own rules on this question. A discharge issued for mutiny, spying or homosexual acts is automatically considered to be under dishonorable conditions. Mutiny and spying charges appear primarily in war movies, but rarely in real life. Homosexual acts, on the other hand, never occur in war movies but do occur in real life. The categorical position the VA has taken on cases of homosexuality reflects a highly traditional view of moral behavior. Whether it is also constitutionally correct to deny benefits on grounds of extra-legal moral attitudes is another question.

In addition to these specific categories of discharges which the VA has determined to be under dishonorable conditions, the agency has adopted two rather broad and subjective criteria in its eligibility decisions. A discharge is considered to have been issued under dishonorable conditions if it stemmed from an offense involving "moral turpitude" or was the result of "persistent and willful misconduct." What constitutes "moral turpitude" or "persistent and willful misconduct"? Whatever the person ruling on the request for benefits decides. No one that we interviewed in the VA, either in the national or regional offices, could offer any definition. The determination is made on a case-by-case basis without the assistance of any guidelines. An older VA employee in Montgomery, Alabama, may consider smoking marijuana an offense involving moral turpitude, while his younger counterpart in San Francisco would merely be amused. Indeed, the criteria may be applied differently within the same office. The only guidelines would appear to be an unwritten presumption that the services only impose bad discharges for acts of moral turpitude or persistent and willful misconduct, because the VA hardly ever comes to any other conclusion. A recent study by the agency indicated that 93 percent of the veterans with bad discharges who apply for educational benefits are denied them.

A veteran who seeks benefits from the VA applies to his local office where he will be asked for his discharge papers. If the applicant has a Bad Conduct or Undesirable Discharge, the VA employee will advise him that his application must be sent to the regional office for an eligibility determination. At the regional level an "adjudicator" will examine the applicant's entire file supplied by the military service involved and then rule whether the veteran engaged in moral turpitude or persistent and willful misconduct. The adjudicator will base his decree not only on information the military has provided, but also upon any statements submitted by the veteran. Rarely, however, will statements be submitted since the applicant is not necessarily notified that he can do so. The veteran will probably also be unaware of all the military reports the adjudicator has before him. Although the applicant technically has a right to see his file, he is never advised that he has that right, nor are copies of his file made available to him if he wishes to see it. He must go to the regional office during a weekday and look at the file there.

If the adjudicator determines that the individual is not entitled to benefits, that determination must be approved by an "authorizer." The applicant may then file a "notice of disagreement," in which event the case will be reviewed again, this time by a senior claims examiner and an authorizer. If they agree with the decision of their colleagues, the applicant will again be notified that his request for benefits has been denied; this time, however, he will receive a statement explaining why they have been denied. He will also be advised of his right to appeal, and finally-after two determinations have been made to deny him benefits-he will be advised that he may submit evidence on his own behalf.

His appeal will be heard by the board of veterans' appeals, which has never had any Vietnam veterans among its members. The board is not limited to reviewing the adjudicator's decision, but can completely reexamine the entire record. However, it also has no guidelines for deciding what is moral turpitude or persistent and willful misconduct.

The veteran has a right to be represented before the board by a lawyer, but it is doubtful that he will be unless a beneficent friend or someone in his family went to law school. Lawyers are limited by statute to receiving ten dollars for all services they render to a veteran applying for VA benefits. The agency argues that the lawyer's feels would come from the benefits awarded and consequently limit what the veteran receives. When it is suggested that some benefits may be better than none at all, they note that the various veterans' organizations provide representation. This is true, but the American Legion and VFW have not exactly been in the vanguard of organizations defending such causes as the rights of homosexuals, political dissenters and drug users. Yet if veterans with bad discharges cannot get help from one of the associations, they are pretty much out of luck altogether. Furthermore, the long participation of the associations in the appeal board procedures has made them part of the VA inner family and made it unlikely they will seize upon unpopular cases. VA officials note with pride that 25 representatives of veterans' organizations have rent-free offices in VA headquarters on Vermont Avenue in Washington, D.C. Their role can probably be better understood in terms of the kinship networks of traditional societies than in terms of the adversary tradition of Anglo-American law.

To ensure that the VA family remains free of outside scrutiny or interference, statutes prohibit appeal to the courts of any decision by the VA granting or denying benefits. Benefits have the legal status of gratuities. The VA can no more be legally compelled to bestow gifts on veterans than children can be compelled to give presents on Mother's Day.

All this contributes to a degree of institutional privacy that one normally only finds in expensive private men's clubs. Both the adjudicator and the board of appeals may issue their decisions without having their notions of morality examined in a public inquiry. The veterans' rights may be unprotected, but the prejudices of agency officials are perfectly secure.

Ordinarily the VA keeps no statistical records on benefit applications from veterans with Undesirable and Bad Conduct Discharges. A study of a fivemonth period in 1972, however, noted that only 1,305 applications for educational benefits were received from men with bad discharges. Of these, 91 were approved. During this same period more than 4,000 veterans with bad dis