༢་ཎྜན་དྷརྨཱ in Administrative Decision-Making based on a Study of Five Disability Programs" [Feb. 27, 1975]. The study contains the following disclaimer: "This report was prepared for the Committee on Grant and Benefit Programs of the Administrative Conference of the United States. It is one of three parts to be prepared for that Committee. It has not been reviewed or approved by the Committee or the Conference. It represents the views of the author only. It should not be used for quotation or attribution without this disclaimer.") Popkin's study supports the ABA's contention that the effective marshalling and presentation of evidence can markedly improve a claimant's chances of success. His study demonstrates that a claimant has a significantly better chance of prevailing at the BVA level when new evidence is submitted to the Board. In service-connection cases, for example, when no additional evidence is submitted, claimants representing themselves were more effective than service representatives in prosecuting claims. When new evidence is presented to the BVA, the chances of a claimant prevailing jump in service-connection cases from 44 percent to 52 percent, and in rating schedule cases from 32 percent to 48 percent. (Success rate with a service representative: 35 percent; Success rate without a representative: 57 percent. (Popkin, at pp. 33, 34.) These statistics suggest that new evidence has a significant effect on the outcome of cases at the BVA level. Moreover, it appears that service representatives have not availed themselves of the opportunity to present new evidence. In service-connection cases, for example, service representatives submitted new evidence in only 12 percent of the cases (Popkin, p. 35). Since attorneys are trained in the art of gathering and presenting evidence, it seems likely that their assistance would improve the veterans' chances of successfully prosecuting their claims, especially since service representatives often do not submit new evidence to the BVA. (In service-connection cases, service representatives submitted new evidence in only 12 percent of the cases. Popkin, p. 35.) In summary, the data indicates that many determinations made by the VA involve complex issues which lay service personnel are ill-suited for dealing with effectively either because of a lack of training or because of inadequate resources. Moreover, lay service personnel often do not present their cases to the VA in the most effective way, and this is highlighted by their failure to gather and present evidence to the BVA. Also, for whatever reason, it appears that a number of veterans have not been afforded a full and fair hearing with a just result by the VA and the service organizations have been quite ineffective in preventing such abuse. An attorney can be particularly effective, because of his training and expe rience, in protecting and promoting the rights of VA claimants. More fundamentally, a VA claimant certainly should not be denied the opportunity to avail himself of an attorney's services, yet he is effectively denied this opportunity by the existing unreasonable restriction on attorneys fees. The limitation on attorneys fees at issue here was established shortly after the Civil War when it appeared that certain attorneys were charging VA claimants exhorbitant fees for legal services. The problem of overreaching by attorneys has certainly been substantially mitigated since Civil War times. Bar associations have established strict rules prohibiting the charging of excessive fees for legal services. Moreover, S. 364 would preserve the VA Administrator's power to award fees, subject of course to judicial review, and this should eliminate any fears that attorneys would exact unreasonable fees from VA claimants. For the foregoing reasons, and with the changes which we have offered, the ABA fully supports S. 364. Chairman CRANSTON. The next witness is George Sears, representing the State Bar of California. George, we welcome you. TESTIMONY OF GEORGE A. SEARS, REPRESENTATIVE OF THE Mr. SEARS. The Board of Governors of the State Bar of California heretofore approved, upon the recommendation of the committee on the administration of justice of the State bar, the improvements in Veterans' Administration law embodied in S. 364. I was the chairman of the committee on the administration of justice at the time, and was asked for that reason to present the support of the State Bar of California for S. 364. S. 364 will make two important improvements in present law. First, the existing law (8 U.S.C. 211(a)) provides that decisions of the Administrator of the Veterans' Administration on disability or pension benefits for veterans and their dependents and survivors are "final and conclusive" and that no court has "power or jurisdiction to review any such decision." S. 364 will change that to make benefit decisions of the Administrator or his delegate subject to judicial review under provisions of the Administrative Procedure Act. The State Bar of California approves this check on arbitrary administrative power. Judicial review of administrative and executive action is deeply rooted in our Constitution. In Yick Wo v. Hopkins, 118 U.S. 356, 369-370, the Supreme Court stated: When we consider the nature and the theory of our institutions of government *** and review the history of their development, we are constrained to conclude that they do not mean to leave room for the plan and action of purely personal and arbitrary power. The Supreme Court similarly declared in Garfield v. Goldsby, 211 U.S. 249, 262, that "there is no place in our constitutional system for the exercise of arbitrary power." Decisions of virtually all Federal administrative agencies are subject to judicial review. Benefit decisions of the Social Security Administration are an example that is specially pertinent for present purposes. The State Bar of California not only believes on constitutional principle that Veterans' Administration benefit decisions should be subject to judicial review-and indeed that perhaps they must be under due process requirements-it believes that as a practical matter this will contribute to the fairness and uniformity of Veterans' Administration benefit decisions, without adding any undue burden to the heavy calendar of the Federal courts. We believe there is precedent for this expectation in experience with judicial review of Social Security Administration benefit decisions. Second, the existing law (8 U.S.C. 3404 (c)) limits the fee of an attorney representing a veteran on a benefit claim to $10. This obviously deprives veterans of legal assistance in processing their claims. S. 364 will remove that antique limitation enacted in 1878. Like judicial review, the right to counsel is deeply rooted in constitutional due process principles. And from the standpoint of practicality and fairness it is patent-without any criticism of the necessarily different type of assistance that is available to benefit claimants from veterans organization representatives and Veterans' Administration counselors that legal assistance may be of great importance to individual veterans, particularly in difficult and disputed cases. A comparable limitation on attorneys' fees was long ago discarded in Social Security Administration claim matters. Lastly, we observe that S. 364 will bring rulemaking by the Veterans' Administration, as well as its benefit decisions, under the procedural safeguards of the Administrative Procedure Act, and hence furnish that further appropriate protection against arbitrary and capricious administrative action. The State Bar of California thus supports S. 364 and respectfully urges its early enactment. We thank you for this opportunity to be heard. Chairman CRANSTON. Thank you very much. I would like to ask you a few questions. Concern has often been expressed that the changes proposed by S. 364 would formalize VA adjudication proceedings. Do you think that such formalization would result from passage of the bill? Mr. SEARS. I am inclined to think not, Mr. Chairman. As indicated in my testimony I would be hopeful that judicial review, as I feel has been the case in connection with review of Social Security Administration decisions, might make a contribution to perhaps some greater uniformity and fairness in the decisions. I do not feel that it is likely to impact the present nature of the proceedings or unduly formalize them. Chairman CRANSTON. Your statement indicates that judicial review would "contribute to the fairness and uniformity of VA benefit decisions without adding any undue burden to the heavy calendar of the Federal courts." Would you elaborate on that point. Mr. SEARS. I have two comments to make in that regard, Mr. Chairman. The first is that from a standpoint of what you might call such precedent as there is available--and that I think is most directly in the area of judicial review of Social Security Administration benefit determinations there has not been an indication that the provision of such review has resulted in any marked burden in the case load of Federal courts. I would add as a personal footnote to that, if I may, that in the course of the last 2 years I have attended numerous meetings and read literally thousands of pages that address the question of the very heavy case loads that do confront the Federal courts. I have yet to see in any of those, Mr. Chairman, reference to Social Security Administration benefit determination reviews as being a heavy contributor to the present problem. As I am sure you are well aware, Mr. Chairman, the principal comments are directed to class actions, to antitrust litigation, and to other kinds of burdens on the Federal courts. Second, it is certainly my anticipation that the nature of the review that will be provided in at least virtually all cases is not going to be a de novo proceeding in the U.S. district court. It is going to be instead a review by the Federal judge of the administrative record put together in the Veterans' Administration proceedings. This means in turn, in my mind, sir, that there is not going to be the same scope of discovery, nor the same length of trial in terms of witnesses and otherwise that may prevail in the many original Federal district court matters. Chairman CRANSTON. Do you believe that the judicial review of factual issues should be in the form of a new evidentiary hearing-this is the same question asked of Mr. Levin-or should it be limited to a determination of whether the VA decision was based on substantial evidence? Mr. SEARS. In my opinion, sir, the ordinary practice applicable to review of administrative determination under the Administrative Procedure Act should be applied here. That is, it should be a review essentially of the record made before the Veterans' Administration. That is, is there substantial evidence in the record-does it appear that there was an abuse of discretion, or abitrary or capricious conduct on the part of the deciding authority in the Veterans' Administration? Chairman CRANSTON. Finally, I would appreciate it if you would please forward us a copy for the record of the California State Bar's resolution on S. 364. Mr. SEARS. I would be pleased to do that, sir. Chairman CRANSTON. Thank you very much. You have been very helpful and, again, I appreciate your precision and brevity. [Subsequently, the California State Bar submitted the following documents for the record:] BALPH GAMPELL, President THE STATE BAR OF CALIFORNIA BOARD OF GOVERNORS MARGUERITE JACKSON ARCHI, leglewood JOSEPH H. CUMMINS, Los Angeles RICHARD C. DINKELSPIEL, San Francis JOYCE FADEM, Los Angeles RALPH J. GAMPELL, San Jose FULTON HAIGHT, Los Angeles PETER J. HUGHES, San Diego KURT W. MELCHIOR, San Francisco FRANK J QUEVEDO, Fullerted EDWARD RUBIN, Los Angeles GARVIN F. SHALLENBERGER, Santa Ana WILLIAM E. SHERWOOD, Resevilla JACK STUTMAN, Los Angeles EDWIN J. WILSON, Long Beach FROM THE MINUTES OF THE BOARD OF GOVERNORS MEETING OF RESOLVED, upon consideration of report of Committee on |