Senator THURMOND. Thank you very much, Mr. Bowen. We appreciate your presence here and wish to thank you for your testimony. Mr. BowEN. Thank you, Senator, for allowing me to appear.

[The prepared statement of C. Ben Bowen, representing the American Legion of South Carolina follows:]

PREPARED STATEMENT OF C. BEN BOWEN, ATTORNEY AT LAW, REPRESENTING THE AMERICAN LEGION OF SOUTH CAROLINA

Mr. Chairman and members of the committee, we are pleased that you have given The American Legion this opportunity to present our views on the legislation under consideration by the Subcommittee, S. 364, which would amend 38 USC 211(a) to provide for judicial review of decisions rendered by the Administrator of Veterans Affairs.

Section 211(a) presently states, "On and after October 17, 1940, except as provided in sections 775, 784 and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise."

The American Legion's position on judicial review of decisions of the Administrator of Veterans Affairs, historically, has been not to support, or given more strongly, to oppose enactment of any measure that would amend 38 USC 211(a) so as to authorize judicial review of the decisions of the Administrator except as presently authorized in 38 USC 775 and 784, and chapter 37 of such title. This position is most recently reflected in Resolution 11, adopted by the National Executive Committee at its Spring meeting, May 4–5, 1977. With the Chairman's permission, I would like to submit for the record a copy of this resolution.

The American Legion adheres to the single agency concept in the field of veterans affairs. This is not meant to imply that we always agree with or support the Veterans Administration itself. However, we are convinced of the soundness of the philosophy that the Veterans Administration should be the only agency of our Government given the responsibility to dispense the benefits granted by the Congress. The proposed legislation to subject decisions of the Administrator of Veterans Affairs to judicial review is, in our opinion, an encroachment upon that principle.

The author of S. 364 has stated in previous testimony that the Veterans Administration is not required to follow the Notice and Comment provisions of Chapter 5 of the Federal Administrative Procedures Act, which requires certain Federal agencies to publish proposed rules and regulations in the Federal Register for public comment and to hold public hearings on the proposed regulations before they may be implemented. However, it was not mentioned that the Veterans Administration has been voluntarily submitting these rules and regulations to the Federal Register since as early as April 4, 1972. The regulations relating to these procedures may be found in 38 C.F.R. 1.551 and 1.552.

Judicial review is only part of the problem. The next step, if not a concurrent one, may well be to provide for administrative review by the General Accounting Office or one of several other agencies. This we oppose. 38 USC 211(a) was enacted by Congress not to limit the rights of veterans but to protect them. The Administrator has been given this authority not to deprive veterans of benefits but to assure that the agency would be unhampered in its mission.

Historically, The American Legion recommendation has been and is that efforts be continued to improve the operation of the Board of Veterans Appeals, the instrument through which the final decisions of the Administrator are rendered. We have been pleased to observe that over the past several years many improvements have been, and continue to be made in this area. For example, Section 4005 of title 38, United States Code, was developed as a result of Public Law 87-666. This resulted in the notification of the claimant of an adverse determination by the regional office and the right to appeal. The veteran or surviving dependent is also advised that if they wish to appeal, a Notice of Disagreement must be filed within one year, after which a Statement of the Case will be furnished. The Statement of the Case must contain, by law, a summary of the evidence, citations of pertinent laws and regulations and the rating schedule

criteria, the decision and a summary of the reasons for the decision. In essence, a full disclosure must be made to the claimant showing why the determination was unfavorable. The right to a hearing before the Rating Board or the Board of Veterans Appeals is also explained. This along with other regulatory procedures ensures that the claimant is afforded due process of law.

It is the opinion of The American Legion that not many cases would benefit from judicial review. Most controversial decisions rendered by the Board of Veterans Appeals involve factual questions and evaluation of evidence. Under the ordinary standard for judicial review of Federal administrative agency action, a court will not reverse if the agency action is supported by "substantial evidence." In the vast majority of decisions with which we disagree there is substantial evidence on both sides of the issue. But, in those cases in which we believe that the Board of Veterans Appeals has incorrectly evaluated the evidence, rarely could we successfully contend that there was no substantial evidence to support the Board's decision. Thus, few, if any, decisions by the Board of Veterans Appeals involving questions of fact could be reversed by the court. An alternative would be to authorize review de novo by the court. The American Legion does not find this acceptable, as it does nothing more than substitute the judgment of the court for that of the Board of Veterans Appeals. Such a proposal would not be feasible because it would impose an impossible burden upon the courts. If judicial review were imposed, we estimate that over 10,000 cases per year would be filed by veterans and their dependents. This would not only cause a further burden on the already crowded court dockets, but also would be a greater drain on the presently hard pressed tax dollar. Furthermore, in our opinion, a proposal such as this would not be sound because it is not consistent with sound administrative law.

The number of decisions rendered by the Board of Veterans Appeals involving question of law is small. Therefore, not many cases of this type would benefit from judicial review. Further, to subject such decisions to judicial review would not be desirable, we feel, because of the resulting inflexibility. Presently, the Administrator has broad authority to interpret the law and therefore to modify his interpretation when he is convinced of the necessity to do so. An interpretation of the law by a court, however, would be final. We feel that such a rigid method of operation would be less desirable than the existing one.

Judicial consideration of Veterans Administration claims would necessitate the duplication of expertise in both legal and medical areas. We wish to point out that the Board of Veterans Appeals has both legal and medical staff members to assist in the adjudication of appealed claims. Also, we invite your attention to 38 USC 211(b) which provides that, "the Administrator may require the opinion of the Attorney General on any question of law arising in the administration of the Veterans Administration." The Board may obtain an expert medical opinion from the Chief Medical Director of the VA Department of Medicine and Surgery when such medical expertise is needed for equitable disposition of the appeal, Also, 38 USC 4009(a) provides that, "when, in the judgment of the Board, expert medical opinion, in addition to that available within the Veterans Administration, is warranted by the medical complexity or controversy involved in an appeal case, the Board is authorized to secure an advisory medical opinion from one or more independent medical experts who are not employees of the Veterans Administration." These are all tools which are used by the Board of Veterans Appeals in assisting claimants in supporting their claims. However, if the concept of judicial review is enacted, the Board would be forced into an adversary role and would have to use these same tools against the veteran in order to defend their position in a court of law.

The inevitability also exists that employees of the VA, physicians in particular, would be required to testify in court. This would necessitate additional funds for travel and per diem as well as interfering with the treatment services of the Department of Medicine and Surgery.

The American Legion believes that with judicial review the informality of the VA adjudication process would be lost. The Veterans Administration does not follow rules of evidence in its adjudicatory process. This informality is generally of great benefit to the veteran or dependent. If decisions of the Administrator were made subject to judicial review, it would be necessary to formalize the VA proceedings, and to follow strict rules of evidence. This would surely limit the agency's latitude in receiving and evaluating "evidence" of any nature. It is felt that this would be less desirable than the present process.

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Veterans Administration claims can be reopened at any time, upon the submission of new and material evidence. Additionally, even in the absence of such evidence, we can secure reconsideration of decisions that are adverse to the claimant. Experience has established that a substantial number of cases are allowed even after they have been denied several times. The Board is authorized to reconsider its decision on an allegation that such decision involves clear and unmistakable error. Such a reconsideration is usually accomplished by a panel expanded beyond the original three members. However, if decisions of the Administrator were subjected to judicial review, the doctrine of res adjudicata would obtain, and we would be deprived of the ability to secure reconsideration. If the veterans lost this advantage, they would be deprived of a valuable privilege they now enjoy.

Presently, under 38 C.F.R. 19.2(b), the Chairman and Vice Chairman of the Board of Veterans Appeals have the authority to authorize administrative action on an adjudicative determination which has become final by appellate decision or failure to timely appeal. In effect, the Board may allow cases, which were denied in previous years, by applying more recent medical knowledge. This happens in many instances when the Board is reviewing the case on another appellate issue, or when it is brought to their attention by an accredited representative. This is another effective tool which would most probably be negated by judicial review. The American Legion also feels that the problem of legal fees is important. Frequently, there is no monetary benefit gained by a favorable decision of the Administrator (where the question of service connection only is involved, etc.). Often the monetary recovery is small. Thus, veterans and their dependents or survivors are usually not in a position to pay substantial fees. As a matter of fact, attorneys who represent claimants before the Veterans Administration itself are limited by act of Congress to a maximum fee of $10. 38 USC 3404(c) states that, "the Administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by the Veterans Administration. Such fees—

(1) shall be determined and paid as prescribed by the Administrator; (2) shall not exceed $10 with respect to any one claim; and

(3) shall be deducted from monetary benefits claimed and allowed."

If a reasonable attorney's fee were permitted, a hardship would be worked upon the claimants. On the other hand, if attorney's fees were severely limited, as they are now, in claims with the Veterans Administration, it would be difficult, if not impossible, to engage an attorney.

The American Legion, other national veterans organizations and state and county offices accredited thereto, presently offer cost-free paralegal assistance to veterans and surviving dependents with their VA claims. This network reaches every state, county and community throughout the nation, and is invaluable in securing and submitting evidence, as well as locating medical records, birth cer tificates, marriage certificates, witnesses to events, and many other types of evidence necessary in the completion of claims.

Statistics on representation in cases before the Board of Veterans Appeals do not, in our opinion, prove that it is more advantageous for a claimant to be represented by an attorney or agent rather than a representative of a national service organization. In fiscal year 1976, a total of 28,482 cases were before the Board. Of that number, there were 4,753 who appeared without representation, 666 who appeared with attorneys or agents, and 23,063 who were represented by national service organizations. Of the cases where the claimant went unrepresented, 9.9 percent were allowed. Attorneys or agents, who of course are selective in their cases, showed a 13.5 percent allowance rate. Of the claims presented by national service organizations, who cannot pick or choose the cases they wish to present, 13.3 percent were allowed.

The American Legion has in its employ two medical consultants to whom the Legion appeals staff may refer complex medical and psychiatric cases. Of the total cases presented by these specialists in fiscal year 1976, the allowance rate was in excess of 80 percent.

Certain proponents of judicial review have stated that national service organizations are extremely reluctant to represent veterans before the VA where the issues involved are a less than honorable discharge, drug abuse, psychiatric conditions, etc. This is not so. The American Legion does not refuse to represent any claimant based on the nature of the claim; nor, to the best of our knowledge, do any of the other major accredited organizations. As a matter of fact, almost every national

service organization also represents applicants before the Department of Defense Boards for Correction of Military Records. Between July 1, 1976 and June 30, 1977, The American Legion Staff represented 2,937 claimants before the Armed Services Review and Correction Boards.

For these reasons, as well as other aspects of judicial review, The American Legion strongly opposes S. 364, and any other legislation which would subject the decisions of the Administrator of Veterans Affairs to review by the judiciary.

Mr. Chairman, that concludes my statement. I will be pleased to respond to any questions that you may have at this time.

NATIONAL EXECUTIVE COMMITTEE MEETING OF THE AMERICAN LEGION, MAY 4-5, 1977-RESOLUTION No. 11

Commission: National Veterans Affairs and Rehabilitation.

Subject: Judicial review of the decisions of the Administrator of Veterans Affairs (Origin: Reg. Res. 1824 (IA)).

Whereas legislation has been introduced in the United States Congress to amend 38 USC 211(a), so as to authorize judicial review of the decisions of the Administrator of Veterans Affairs; and

Whereas the Congress has consistently barred all judicial review of the decisions of the Administrator in other than contractual matters since 1924; and

Whereas as recently as Public Law 91-376, approved August 12, 1970, the Congress firmly and unequivocally reaffirmed its intent that the Administrator's decisions be final, when it added to section 211(a) the concluding words “by an action in the nature of mandamus or otherwise”; and

Whereas the Congress enacted this finality statute not to limit the rights of veterans and their dependents or survivors, but to protect them from interference by outside agencies; and

Whereas the National Veterans Affairs and Rehabilitation Commission is convinced that judicial review is not desirable because it would involve procedures and processes that would ultimately work to the detriment of the veteran, his dependents, and survivors, such as, formalizing the adjudication process, institution of adversary proceedings, et cetera: Now, therefore, be it

Resolved by the National Executive Committee of The American Legion in regular meeting assembled in Indianapolis, Indiana, May 4-5, 1977, That the American Legion shall continue to oppose enactment of any measure that would amend 38 USC 211(a) so as to authorize judicial review of the decisions of the Administrator of Veterans Affairs except as presently authorized in 38 USC 775 and 784, and chapter 37 of such title.

Senator THURMOND. Our next witness is Dr. Richard L. Waldroup, president, Trident Technical College. Is Dr. Waldroup here? Please come right around here and proceed.

TESTIMONY OF DR. RICHARD L. WALDROUP, PRESIDENT, TRIDENT TECHNICAL COLLEGE, CHARLESTON, S.C.

Dr. WALDROUP. Senator Thurmond, ladies and gentlemen, I wish to thank you for this opportunity to present our views regarding Senate bill 364, the Veterans' Administration Administrative Procedure and Judicial Review Act. We appreciate the fact that you have come to South Carolina to hear firsthand the remarks that we might have. And I might add as I move into this part, we are approaching this a little bit differently than some of these attorneys and so forth because I think we all look at it a little bit differently. So we want to approach it from the standpoint of how we in the community college and technical college system in South Carolina see it.

Trident Technical College is a 2-year comprehensive technical education center serving Berkeley, Charleston, and Dorchester Counties. Our institution is a part of a statewide technical education system. We are supported by the State and the three local county

governments and operate under policies set by a local governing board. We offer some 50 associate degree and diploma programs designed to prepare youth and adults for jobs in the local area. We have an open door policy and our geographical accessibility make it possible for us to serve some 15,000 students, full-time and part-time students, each year. This is equivalent to approximately 7,000 fulltime students.

Trident Technical College enrolled a large number of veterans over the past 4 years when those who served during the Vietnam era began to take advantage of their educational opportunities administered by the Veterans' Administration.

The number of veteran enrollees was 750 in 1973; 1,150 in 1974; 2,054 in 1975, and since that year it has remained relatively stable even though many higher education institutions have experienced severe losses in enrollment. During the spring quarter which ended in June of this year, we had a total of 2,004 veterans at TTC. These 2,000 veterans enrolled in almost all of the programs we offered and they were pursuing diploma or associate degree programs that will give them viable opportunities for employment in the tricounty area. A look at the veteran enrollment at TTC shows that they are dispersed throughout the various programs offered at our two campuses and in our extension programs.

In general, Mr. Chairman, we are very proud of the veterans who enroll at Trident Technical College. They represent a significant portion of our student body, and we believe that we are offering them the kinds of valid educational programs that will greatly assist them in their future careers, and in their jobs.

For that reason, I am here today to support the provisions of S. 364. It appears to us that this bill will provide educational institutions, like Trident Technical College, some recourse from administrative rules made by the Veterans' Administration which deeply affect the operation of our college. Oftentimes the regulations established by the VA with respect to educational institutions and programs seem capricious, and without question some of them have created administrative burdens.

While I recognize that abuses have existed with respect to educational programs for veterans, but in the case where legitimate educational programs are offered, these rules and regulations are unnecessary. In order to assure that educational institutions can have recourse, or some avenue for appeal, as provided for in S. 364, I support the bill and urge its enactment. Under the system as it now operates, the Veterans' Administration is both the judge and the jury. The provision of S. 364 which requires the VA to comply with the Federal Administrative Procedures Act is also highly desirable. Presumably this will subject VA rulings and regulations to a process of public notification and request for comment. This seems consistent with our well-established democratic traditions that affected parties have a right to challenge.

Our support for S. 364 stems from an experience we have had with the Veterans' Administration with respect to liability for overpayment of benefits to certain veteran students. The instances in which our college was assessed liability for overpayment to individual veterans occurred in the time period April through July 1976. During those