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General HINES. Section 1 of the bill amends section 5 of the act by providing that in making regulations pursuant to existing law with reference to home treatment for service-connected disabilities, the director shall not discriminate against any veteran solely on the ground that such veteran left a Government hospital against medical advice or without official leave. This amendment has for its purpose the changing of bureau procedure which has been in effect since June 28, 1922. Under this procedure, if a' claimant leaves the hospital against medical advice or goes absent without leave therefrom, he is not entitled to home treatment until such time as he may reenter a bureau hospital and clear his record of this character of discharge. This amendment in reality dictates the method of procedure in connection with this class of cases. The danger in its enactment lies in the possible effect of such an amendment on the existing general policy of the Government to hospitalize and treat veterans in Government institutions and with Government facilities. If veterans are to be permitted to leave hospitals against medical advice or without proper leave and after so doing are to be entitled to home treatment, it may have a decided effect upon the Government hospital program. It is known that when men are ill they do not exercise the same judgment as men not afflicted with disease. They become discouraged in many cases and desire to take on new forms of treatment, even though such new forms of treatment may not be advisable. In view of the fact that the director at the present time has authority to do that which the amendment dictates, it is not believed from a Government standpoint that the amendment is desirable.
Might I point out to the committee also that as an administrative proposition if these men are permitted either for disciplinary reasons or against medical advice to go out and locate themselves wherever they wish, and then the Government is called upon to furnish medical treatment by means of doctors visiting them every so often, and have follow-up nurses--and we do follow them up now with followup nurses, and when indicated doctors go there—I am afraid it will put a problem upon the bureau that we would be unable to meet. And it really takes on the situation that has been contended for some time, in one or two places, that it is better for these men to be out of hospitals than to be in them, and we make a definite allowance for that. The doctors do not believe that is the way for the men to get well; and this group usually involves men who have tuberculosis. We have a provision now which permits them to be sent home with a temporary total rating if the doctors determine that the feature of hospitalization would not be helpful. But this amendment makes so much of an administrative procedure a matter of law that we hope the committee will take it out, and I feel confident I can cure it by regulation, whatever would be proper to do.
Senator Walsh of Massachusetts. Who are the proponents of this provision?
General Hines. Congressman Swing of California. It was brought up by reason of some cases which he recited on the floor of the House, of some unfortunate men who had left the hospital against medical advice and had gone into a colony in California, where a number of them lived, and one man in particular was in bad shape I know. These men were all offered hospital treatment but declined it, and the man in question died while in that condition, although I had authorized a doctor and a nurse to go there, and yet it was of no avail, and he used that as an example.
Senator Walsh of Massachusetts. The veterans' organization have not urged it, have they?
General HINES. No, I think not. I think the veterans' organization feel as we do, that we should not penalize a man for life, and ought to take him back after a reasonable time.
Senator SHORTRIDGE. I do not wish to interrupt unduly, but as I understand it under the present law you may and do permit them to leave.
General Hines. We have no way of holding them. They come and go as they please.
Senator SHORTRIDGE. You may and you do in proper cases permit them to go, and thereafter furnish the aid of a nurse?
General HINES. Yes.
Senator Walsh of Massachusetts. By declaring them to be permanent?
Senator SHORTRIDGE. I say, under the other provisions of the law. This amendment permits a patient, we will say, to go against medical advice.
General HiNEs. That is right.
Senator SHORTRIDGE. Without leave of those who have his interests at heart?
General HINES. And gets the same treatment as other men who go on advice.
Senator WALSH of Massachusetts. It is an attempt to correct the administrative regulations by law.
The CHAIRMAN. You may proceed with your statement.
General HINES. Section 1 of the bill also amends section 5 of the act by directing that regulations relative to evidence provide that due regard be given to lay and other evidence not of a medical nature, in connection with the adjudication of claims. In view of the fact that the bureau is at present giving consideration to such evidence, the only effect of this amendment will be to require a more liberal evaluation of such evidence. It is impossible to estimate the cost of such a provision, but it undoubtedly will increase the expenditures.
I should like to introduce into the record at this point a letter all regional officers outlining the policy of resolving the doubt in favor of the claimant, so that the subcommittee may have before them the present policy. We feel of course that when we have medical opinion and lay opinion upon a medical question that we should be guided by the medical opinion.
(The letter to all regional officers of the Veterans' Bureau, is as follows:)
FEBRUARY 19, 1930. REGIONAL MANAGER, UNITED STATES VETERANS' BUREAU,
Charleston, W. Va. DEAR Sir: During the past year there has been before the bureau an unusual opportunity to study the quality of our service. We have utilized it to study and improve our internal procedure and organization, so that the service of the bureau might be expedited and its business with the public efficiently accomplished. In that direction I feel confident we have been successful. But efficient service is not effective service unless it is performed with a will to be helpful and accomplished in a spirit of mutual understanding and appreciation. These qualities of service are important and peculiarly essential to the work in which we, of the bureau, are engaged.
The bureau must give to the veteran maximum service in the performance of those duties assigned to it by law. This service begins when the veteran makes known his desire, and ends when the bureau has discharged the Government's obligation to him. The quality of this service depends, in a large measure, upon the veteran and the bureau employee, who is the veteran's and the Government's representative, and this quality will be of the highest when the veteran assists and the bureau employee discharges his duties to the veteran and to the Government.
The veteran is entitled to know what rights his Government has granted him and to receive a prompt answer to his application for benefits. When he files an application he must understand that before a decision can be reached the bureau is required to have in its possession all of the evidence necessary to bring out the material facts in his case and that it would be unfair to both the veteran and the Government to reach a decision on the case until the evidence is complete, at least to the full extent that it may be available. It is during this process that the veteran renders his maximum service by assisting in every way and giving all information requested by the bureau employee. Unless this is given freely and frankly, the answer to his application may be not only unsatisfactory to him but is unsatisfactory to the Government and eventually is the cause of misunderstanding.
Our inability to grant service connection in some cases may not be due to the lack of proof in existence to do so, but because such evidence has not been found and presented to the bureau's adjudicating agencies. It is, accordingly, an integral part of the bureau's policy and procedure to urge upon the veteran the presentation of all manner of evidence which can be procured from whatever source, and, recognizing the unfamiliarity of many veterans with the nature of the medical requirements upon which the bureau's determination must rest, to afford every cooperation on the part of the bureau agencies in assisting the veteran in obtaining and presenting complete evidence. It is thought well to here request that all personnel having to do with the adjudication of claims carefully review the provisions of General Order No. 320-B.
Aside from these efforts which must be made to fully realize the intent of the Congress, and while the law places the burden of proof upon the claimant to establish his claim, I have taken occasion to impress upon you the fact that World War veterans' legislation is liberal in its basic purpose and that the bureau's policy does not require that the proof must be such as to establish the claim to a mathematical or moral certainty.
There are quoted below pertinent extracts from the instructions which have been given to the personnel of the bureau charged with the adjudication of claims:
“When letters are written to the claimant or their duly authorized representatives in response to their requests for action, the bureau's reasons for the action taken shall be embodied therein. In other words, advice to claimants and beneficiaries of the action of the bureau shall be so worded that the average man can understand why such action was taken; what is lacking in the evidence in file, and what additional evidence is needed to substantiate the claim in the event the action is unfavorable.'
“When in the course of reviewing a case it is found that information which may substantiate the contentions of the claimant can be obtained from third parties or that information already furnished by third parties may be supplemented by such parties in favor of the claimant, the parties whom the file indicates may furnish such information shall be communicated with by the bureau and proper opportunity given them to submit the evidence which may permit action favorable to the claimant.
“Employees of the bureau should keep in mind that in border-line cases the policy will be to give a little more rather than a little less. The policy to be pursued should not be highly technical and rigid, but it should be kept in mind that the burden of proof rests upon the claimant to establish his case in accordance with law, and that doubtful points should be decided in his favor when such action does not contravene a positive statutory provision.”
You will thus observe that there is to be kept uppermost in the minds of the bureau personnel that the very definite policy of the bureau is
First, to assure as far as possible that the claimant will procure all evidence tending to support his claim, with intelligent knowledge of the nature of evidence which is necessary and the purpose which it is to serve;
Second, to render such help and assistance in procuring that evidence as may be proper; and
Third, that you shall give to the evidence which is procured through these efforts the most liberal consideration possible under the law.
It must be realized, however, that the law imposes a definite responsibility upon all charged with the adjudication of claims which can not be obviated or contravened. As long as the law makes the payment of compensation contingent upon service origin or aggravation of the cause of disability or death, it will be realized that the bureau can not legally award compensation without evidence meeting that requirement, although the bureau must endeavor, because of the basic intent of the World War veterans' legislation, to temper its consideration of the sufficiency or insufficiency of the evidence to meet that requirement with the utmost liberality consistent with a fair and sensible appreciation of its basic responsibility.
I desire that the foregoing statements of policy in the consideration of claims before the bureau be again disseminated to the personnel of your office having to do with the adjudication of claims, so that we may be assured that there is no misunderstanding as to the intent of the bureau in its consideration of claims before it. Adherence to these stated policies by the personnel of your office can not but give to the quality of service of your office that element of sympathetic understanding and helpfulness which, to the veteran and those interested in him, is the measure of our service. Very truly yours,
FRANK T. HINES, Director. Senator SHORTRIDGE. What do you mean by "lay” opinion?
Senator Walsh of Massachusetts. I might suggest that it might be an opinion by the wife, daughter, or child, for instance, saying that the father has been spitting blood.
General Hines. After having viewed a claimant, for instance, that I have known for a number of years, and who I have seen gradually go down in weight, from that and from his inability to carry on, I may assume that he has tuberculosis. That would be a lay opinion, that he had it. But the doctor who examines him may find that while he has certain lung pathology, yet he has been unable to diagnose the case as tubercular, and says he has not tuberculosis. Unless we have a preponderance of evidence that the doctor might be mistaken, we have generally acted on the doctor's opinion.
Senator SHORTRIDGE. But you take into consideration, I suppose, and weigh both the lay opinion and the medical opinion in arriving at your decision?
General Hines. Yes, we do, and they are able to do that by instructions. But there was a feeling, and quite a strong feeling in the House committee, by reason of certain cases that came before them, that it should be emphasized, that it was the desire of the Congress to give greater weight to it.
The CHAIRMAN. Would the bureau like this provision?
General Hines. We would not object to it, providing the reflection is not carried with it that we are not now giving the benefit of the doubt. I think rather that we have gone quite in the other direction. I am frank to say that with that expression on the part of Congress any border-line cases would come in.
The CHAIRMAN. What would be your recommendation?
Provided, That regulations relating to the nature and extend of the proofs and evidence shall provide that due regard shall be given to lay and other evidence not of a medical nature.
Well, there is no harm in having that there.
The CHAIRMAN. All right, General Hines, you may go ahead with your statement.
General HINES. Section 1 of the bill further amends section 5 of the act by providing that where service connection has been found by the bureau to exist in the case of any injury or disease or any aggravation or recurrence of a disability, and such finding has continued in effect for a period of five years, the finding shall be final except in cases of fraud participated in by the claimant, the period of limitation to run from the date of such finding irrespective of whether the period began prior to the passage of the amendatory act. This amendment is in reality a statute of limitations against the Government. Under existing bureau instructions every rating and other finding of fact made by a properly constituted authority and unappealed from within the time allowed by regulations shall be presumed to be correct for all purposes until the contrary is affirmatively shown, and such finding shall not be subject to reversal except where an error of law is shown on the face of the record, where there is evidence of fraud, or where the evidence affirmatively shows that the finding could not be correct upon any theory.
Senator SHORTRIDGE. That is a finding of fact.
General Hines. Yes. The instructions further provide that the fact the evidence in the file may seem insufficient to support the finding shall not be sufficient to bring the case under the last-mentioned exception, but the evidence must negative all reasonable possibility that the finding is correct It is further provided in the instructions that nothing in the order shall be interpreted to prevent increasing a rating or award previously considered as not due to service, where such action is warranted by the facts in the case, and fall within the provisions of the law. It would seem that under the existing bureau instructions a veteran's interests are amply protected. The adoption of the amendment would be to add a provision by mandate of Congress to the existing instructions that if a finding had been in effect for a period of five years it could not be disturbed except for fraud. The question would immediately arise upon passage of the amendment as to whether persons illegally granted service connection would continue to receive benefits after a 5-year period had run where no fraud could be shown. It is assumed that such is the intention of the author of this measure and under such assumption it would mean that because a mistake has occurred and continued for five years such mistake would be perpetuated. The bureau has estimated that this amendment will affect approximately 1,330 cases at an annual cost of approximately $702,000.
We feel that under the bureau's written instructions that amendment is not proper and should come out.
Senator SHORTRIDGE. And that is the amendment beginning with line 5 and running to line 16 on page 3 of the bill now before us.
General HINES. Yes.
General Hines. Section 2 of the bill amends section 10 of the act by authorizing the director to secure recreational facilities, supplies, and equipment for patients generally and for employees at isolated stations. At the present time the bureau is furnishing such facilities for the use of patients, although there is no specific provision in the act covering such items, but has never endeavored to furnish facili