It must be recognized that promulgation of an equitable fee structure is a basic consideration in determining the total extent and quality of private attorney participation in judicial review. Allowable fees must be sufficient to motivate attorneys to perform the necessary detailed research and study of the multiple and complex VA statutory and regulatory criteria, without which study the veteran cannot be adequately counseled and represented. Yet these fees must alsobe kept within equitable bounds for the protection of the veterans and other claimants. We believe the development of an equitable fee structure is an extremely important part of any system of judicial review. The effectiveness of that system will depend in a large part on the fee structure. We are not, at this point, prepared to make any recommendations for an equitable attorney fee system. We have briefly reviewed the payment system used by the Social Security Administration. Under that system the Secretary allows an amount equal to the smaller of: (a) twenty-five percent of the total amount of past due benefits, (b) attorney's fees fixed by the Secretary or, (c) the amount agreed upon between the claimants and the attorney as the fee. In conclusion and summary, PVA has indicated we do feel some type of judicial review of Veterans Administration eligibility decisions is necessary and desirable. We do not, however, support S. 364. We feel the most prudent step for this Committee is to direct a comprehensive study of the issue. The study must assess the current VA appeals procedures. The study should also examine different types of limited judicial review and different structures for attorneys fees. We suggest that the study be done as quickly as possible. It is evident that the trend in several court decisions is to open Title 38 to limited judicial review regardless of congressional action. We would like to take this opportunity to thank the Chairman for holding these hearings over this extremely important issue. Chairman CRANSTON. We will now hear from the next panel. Arthur Guerrero, Denver, Colo.; Dr. Pellerin, Salem, Va.; Robert White, special assistant to the president of National University, San Diego, Calif. TESTIMONY OF A PANEL CONSISTING OF: ARTHUR L. GUERRERO, Mr. GUERRERO. Arthur Guerrero, advertising salesman. Mr. WHITE. Robert White, special assistant to the president, National University. Mr. GUERRERO. My name is Art Guerrero and I am from Denver, Colo., I work as an advertising salesman. I have a wife and two daughters, whom I am very proud of. A decade ago I was an infantryman in Vietnam where I was awarded the Silver Star and a Purple Heart, and of this I am also very proud. I am here to express my support for S. 364. After my experience with the VA, I am convinced that veterans should have the freedom of choice to have an attorney represent them in court if final VA decisions prove unsatisfactory. It is difficult for me to understand why veterans are denied access to the same courts, which have held that welfare recipients have a vested property right to benefit payments. These rights include all access to the courts and the right to an attorney and an administrative hearing, if a welfare recipient desires legal representation. I fell into the VA bureaucratic treadmill for nearly 9 years before I was able to attain the disability rating and compensation that was due me. Upon my honorable discharge from the Army in 1968, I was rated at 20 percent disabled from the multiple gunshot wounds I received in Vietnam. For some reason it took the VA nearly 6 months to determine that the malaria that I suffered from while on active duty was indeed service connected. Accordingly, the VA granted me another 10 percent disability which they rescinded a year later. Five years later I purchased a home under a VA program. The VA approved our home after they claimed they had inspected it. However, the City Building Department found 14 or 15 code violations upon inspecting our home. Finally, five other homeowners and I had to retain an attorney, and it took 2 years to force the builder to honor our homeowner's warranty. My wife and I first went to the VA but were told they would do nothing even though our reliance on the VA inspection had led to our problem. In 1974 I continued my education under the GI Bill at a local community college. My first two quarters went well and I passed all my courses with no problems. During my third quarter, I began having serious problems with my wounded right leg. In trying to get around between work and school, I sprained my ankle as a result of favoring my bad leg. During the month that it took my ankle to fully heal, I had to miss 'some of my classes; during that period I felt depressed and withdrawn. I then received a letter from the VA stating that I owed them $995 for an overpayment of GI Bill moneys. I wrote back explaining my problems and received a form letter from the VA stating that I purposely defrauded the Government. I was further warned that if I did not pay back the $995 by a certain date, I would be subject to legal action from the Government. I had been going to the Denver VA Hospital as an outpatient for my leg trouble, but now I was dragging my right leg badly. Finally, I was hospitalized for 3 weeks but the tests I underwent were inconclusive. I was released and attempted to lead a normal life as possible under the circumstances. I heard nothing more from the VA on my leg problem, but my family and I kept receiving form letters from the VA demanding the $995 they insisted I owed them. I had signed a power of attorney release form turning my case over to the National Service Officer of the Disabled American Veterans (DAV) at the Denver Federal Center. However, I never got a response from the DAV when I called and ultimately brought in my attorney. Had he not been a personal friend, I might have had a very difficult time obtaining an attorney who could afford to take my case. The present $10 fee limitation kills veterans' freedom of choice to obtain legal representation in those particular cases where an attorney is necessary. Despite the lack of assistance I received from the Denver DAV, the editor of the magazine section of one of our daily newspapers took interest in my situation and the resulting article was published in July 1976. It is enclosed. As a result of the publicity subsequent to the article, the VA waived my school liability debt and flew me to Wadsworth, VA Hospital in Los Angeles where after extensive examination it was finally determined that I have multiple sclerosis that is service connected. Then I was rated 50 percent disabled retroactive to July 1975. It disturbs me that the VA did not give my medical problems the attention they deserved until after the press took an interest in my case. I am afraid that thousands of fellow veterans are out there with similar problems who are not receiving the treatment and disability compensation they deserve because the VA has not correctly developed their cases. I was amazed to learn that VA determinations in cases like mine are final and not reviewable in any court in this country. It is little wonder why many veterans refuse to appeal a VA decision through the VA administrative network. The VA is its own minilegislature since it writes its own regulations with virtually no outside review. Then, it is a minijudiciary since it applies its own rules to individual cases with the final decision by the Board of Veterans' Appeals, all VA employees. I don't feel that most VA cases could require that veterans retain attorneys. But, if the $10 fee limit were changed to a reasonable one, veterans could hire legal counsel when it is necessary. This and the subjection of the VA to court review would tighten the VA procedures up so that fewer cases would be handled in the manner mine was. People who laid their lives on the line for this country should not be treated like second class citizens. I feel the present situation whereby the VA is free from court review relegates veterans to the status of second class citizens. As you are aware, this country spent $150 billion on the Vietnam war, a war that saw millions of affluent young men hide on college campuses while working class Americans, particularly minorities like me, often wound up in Vietnam. I read testimony given before your committee last month by an individual named Grover C. Robinson III, who identified himself as a Vietnam veteran and Florida State representative. I found Mr. Robinson's testimony disappointing and negative. I wonder if he was wounded in combat like me and if he had to hassle with the VA for years to receive disability compensation. From the tone of his testimony it appears not. I can assure you in any event that he does not speak for me. I resent his implication that S. 364 is "the first step in dismantling the Veterans' Administration." Judicial review of the VA would probably restore waning public confidence in that agency. I am not a politician like Mr. Robinson, or an attorney and I must leave it to this committee to iron out the details on this proposed legislation. However, the bill could be shaped so that it would not be unmanageable. Your committee certainly has the expertise to set up the provisions of S. 364 so that the courts are not "flooded" as opponents of the bill have claimed. I leave this in your hands. Recently, I also had the opportunity to read testimony given 25 years ago in support of the subjection of the VA to court review of compensation and pension cases. This testimony in the name of a veterans group was given by a young disabled veteran of World War II, who has since risen to his present position of Deputy Administrator of the VA. I have taken the liberty of quoting from his testimony. We believe that such benefits, compensation and pension, are rights and not gratuities. Administrative processes and decisions deserve to be received by the courts to determine their validity and uniformity. Veterans monetary claims are a cost of war and, as such, we contend that they are rights guaranteed to every veteran citizen. In closing I want to thank you for your kind attention to this important issue. In addition, I wish to thank the American Legion, Department of Colorado and Denver Post No. 1 of the American Legion for their assistance so that I may tell my story to this committee. Chairman CRANSTON. Thank you, very much. Dr. Pellerin, are you going next? Dr. PELLERIN. Mr. Chairman, honorable members of the committee. Thank you for giving me the opportunity to testify in this worthy cause. Please bear with me if I appear stage frightened, because I am. This is understandable in view of the fact that I have been waiting 31 years for this moment. I am Alcide D. Pellerin, doctor of medicine, Boston University of Medicine, class of 1939. The pertinent aspect of my curriculum vitae consists in VA employ as a disability evaluation specialist for 4 years at the regional office level, and for approximately 4 years as associate member of the Board of Veterans' Appeals here in Washington. In cases where veterans have succeeded in breaking the VA legal barrier, the illegal barrier would be more appropriate and had their cases docketed in Federal court, the BVA decisions were reversed in every instance. There must be more to it than mere coincidence. Since time does not permit presenting an exposé of all that is wrong with the VA, which would require several hours if not several days, I shall limit myself to presenting one outstanding case of injustice and abuse of power on the part of the BVA. The case is that of Frank X, who in 1948 sustained a crushing injury to his lower extremities necessitating amputation. The surgical intern reported that the amputation was at the junction of the middle and upper third of the femur. The VA promptly rated the disability 30 percent, some 20-odd years later an X-ray of the hip showed the amputation to have been 3 inches below the hip, which rated a 60-percent disability. The VA gave him his due 60-percent disability from the date of the X-ray. Frank appealed, claiming 60 percent from the date of discharge. The Board of Veterans' Appeals upheld the denial. He asked for reconsideration, and a panel of two sections again denied. Frank again was able to get a second reconsideration, this time by a panel of three sections of which one was my section. During deliberations the BVA contended that it was not guilty of an error in the assignment of 30 percent after discharge, and therefore the veteran was not entitled to a retroactive 60 percent. I argued that Frank was not guilty either, and that he should not be penalized for an error by the VA physician. I further argued that the issue was not one of guilt and that guilt should not be a basis for adjudication. I pointed out that the statutes do not say that only when the BVA is guilty of making an erroneous decision, are the benefits to be made retroactive, but they state that that is, any time a decision is clearly an unmistakably erroneous, retroactive benefits are in order. I dissented, but eventually gave in under duress as in many other cases. Frank, wherever you are, please forgive me for having taken part in robbing you of $40,000 or $50,000 in due benefits. Two wrong things stand out like sore thumbs in this case. One, the arbitrary and capricious interpretation of the law; two the abuse of power by the chairman of the BVA in dictating and imposing his will on board members. Since the BVA is the last word, the veteran has to grin and bear, and regret that he hadn't defected or deserted. During the next few minutes I would like to give you examples of some of the dirty tricks used by some VA personnel to achieve the VA objective of denying claims. One is a case, a diagnosis of "athlete's foot" was made during an official exam. That was not to the liking of the reviewing chief who, I assume, wanted to serve his master well and at the same time feather his bed. So he eradicated the diagnosis and created his very own diagnosis, "athlete's foot not found." The denial of the claim was sustained by the BVA. This, I can assure you, would never be allowed to happen in a court of law. Two, in getting an independent medical expert opinion, the BVA typically utilizes a medical school staff member who is also on the staff of the VA hospital associated with the medical school, who is on some sort of a salary by the VA, and who according to my research had been a regular VA employee for several years at some time or other in the past. This "setup" inevitably constitutes conflict of interest, yet the medical expert's word is on "a par" with the divine word of God. In contrast, should the veteran submit an opinion from a board certified specialist, say from some institution like the Mayo or Lahey Clinic, the Arthritis Foundation or the Georgetown Medical Center, that opinion only serves to reopen his case, and is considered as trash by the VA. Not only does a court of law ban conflict of interest, it encourages the challenging and questioning of the expertise of an expert, which is the lifeblood of the legal system. One last case: When the so-called VA independent medical expert was confronted with a finding, in the service medical record, that was favorable to the veteran, he defied the rule of evidence and ruled that the military doctors had made an erroneous finding. Based on that medical expert's opinion, the BVA issued a denial; again in a court of law the BVA decision would surely be reversed. In summary, the basic problem is one of uncontrolled, unchecked, incorrectable injustice to the veteran because of the dictatorial power of the BVA. This runs counter to our great American ideal of democracy, which abhors and denounces dictatorship, and to the Constitution, which guarantees justice in a court of law for every citizen. Please, gentlemen, I beg you, make it possible for the veteran to get justice, and the only possible way to accomplish this is not in the VA kangaroo courts but in the Federal courts, which should be open to the veteran, as to the nonveteran. It is my understanding that even aliens now have access to the courts. If the veteran is not more deserving then he is at least as deserving as the nonveteran citizen or the noncitizen. Senate bill 364 would take the VA out of its lofty ivory tower and bring it down into the realm of justice and fair play for the veteran. I wish to thank you gentlemen for your patience and attention and hopefully for your understanding of the plight of the veteran. Chairman CRANSTON. Thank you very much, Doctor. Mr. White, I welcome you. We would like to hear from you. |