6. Dependability Almost always can be relied upon to have reviewed cases in detail, to have considered all disabilities claimed and all significant disabilities shown in the record, and to have made no statement of fact in a rating not substantiated by evidence. Consistently requests leave only when workload permits, except in emergencies, and habitually observes regulations pertaining to lunch periods and tardi ness. Invariably shows discretion in furnishing information relative to claims. Without exception treats confidential information in accordance with regulations and does not disclose official information to unauthorized persons. Is always loyal to his organization, devoted to duty and invariably regulates his personal conduct so as not to reflect discredit upon the Veterans' Administration. Dr. Pellerin always reviews claims in detail, considers all disabilities claimed and all significant disabilities shown in the record and never permits a statement of fact to be made in a rating which he signs which is not substantiated by evidence. He has requested only one day's annual leave in the six month's period that he has been employed as a Rating Specialist (Medical) and has taken no sick leave. His request for the one day's annual leave was made well in advance and this leave did not interfere with the workload. He has never been late for work and has never been late returning from the lunch period. He invariably shows discretion in furnishing information relative to claims. Without exception he treats confidential information in accordance with regulations and does not disclose official information to unauthorized persons. He is always loyal to his organization, devoted to duty and invariably regulates his personal conduct so as not to reflect discredit upon the Veterans' Administration. His actual performance exceeds the performance requirements for dependability. Chairman CRANSTON. We will now hear from the final panel this morning. John Bolt Culbertson, private practitioner, Greenville, S.C. George Lively, assistant project director, military law project, Memphis and Shelby County Medical Services Association, Memphis, Tenn. Carlos Soler-Calderon, representing the National Congress of Puerto Rican Veterans, Puerto Rico. We are running out of time, so I would be very grateful if each of you would abbreviate your prepared statements. Would you please identify yourselves? Your full statements will go in the record. Please identify yourselves, from my left to right, so that we know who you are. Who is going first? Senator THURMOND. I would like to say this to save time, because time is running short now. Your entire statement will be printed in the record. Now, could you just summarize and give us in a few words a summary of all of the views that you express? TESTIMONY OF A PANEL CONSISTING OF: JOHN BOLT CULBERTSON, PRIVATE PRACTITIONER, GREENVILLE, S.C.; FREDRICK GROSS, PRIVATE PRACTITIONER, UNION, N.J.; GEORGE LIVELY, ASSISTANT PROJECT DIRECTOR, MILITARY LAW PROJECT, ACCOMPANIED BY JOHN DALEY, MEMPHIS, TENN.; AND CARLOS M. SOLER-CALDERON, ESQ., REPRESENTING THE NATIONAL CONGRESS OF PUERTO RICAN VETERANS, PUERTO RICO Mr. SOLER-CALDERON. I would like to make it brief. But I will be brief for the record. So I hope you will let me present the picture. My name is Carlos M. Soler-Calderon, I am a Puerto Rican attorney representing the National Congress of Puerto Rican Veterans, a young and growing organization with affiliated chapters throughout all of Puerto Rico and in 12 of the States of the Union. In Puerto Rico we have about 165,000 veterans. I have been sent here by said organization to appear on its behalf in favor of S. 364. Specifically, this presentation constitutes a wholehearted endorsement of the provisions of the bill which would authorize the judicial review of administrative decisions rendered by the Veterans' Administration, and would allow adequate compensation for attorneys representing veterans in their claims before said agency. My appearance before this Committee is based on my past experience of 27 years as an officer in the Veterans' Administration and on my present private legal practice. As such, I am fully informed and convinced of the need for the proposals included in the bill, which are strongly supported by legal, administrative and practical considera tions. We beg the committee to give full and careful consideration to the following arguments in favor of the bill: (1) From the legal standpoint, the present restrictions of the law preventing judicial review of Veterans' Administrative decisions, might very well be unconstitutional. Disbursements of public funds is always constitutionally subject to the requirement that they be made within the purview, the manner and the purpose of the laws which authorized them. If such evident premise is constitutionally correct, no legal provision is valid which prevents the judicial review of an arbitrary or unwarranted administration of such funds by a governmental agency, in granting or denying benefits provided by law as veterans' benefits. (2) From an administrative viewpoint, the present situation, allowing the Veterans' Administration the untrammeled exercise of its discretion in determining which veterans are entitled or not entitled to the benefits provided by law, is incompatible with a democratic government, in which even the President is ruled by law and subject to judicial review of his actions. The Congress has set up no mechanisms to review and oversee whether the Veterans' Administration has been complying with the laws providing benefits to veterans in the manner in which they were intended There being no independent review of Veterans' Administration's decisions, the agency has become in effect an independent government, accountable to no one of its decisions. This, by itself, regardless of the manner in which such absolute power may be exercised, is abhorrent to the concept of a demo cratic government; and tends to subject veterans, as stated by Senator Hart, to the "tyranny of unrestrained and capricious bureaucratic action." As a matter of principle, this situation should not be allowed to continue. (3) In actual practice, there is clear evidence and I have documentation to prove it-that the Veterans' Administration has in the recent past, grieviously and inconsiderately failed to provide adequate consideration, in the manner provided by law, to specific claims for veterans benefits. Lulled by its administrative insulation from judicial review, the Veterans' Administration has shown a consistent attitude of upholding fiscal considerations over the legal entitlement to veterans' benefits provided by law. This it has done by rejecting the grant of the reasonable doubt in favor of veterans, and rather applying said doubt against such veterans; and in giving no weight or credit to evidence submitted by veterans in support of their claims. It has also tended to accept unreasonable and erroneous medical concepts and opinions of its own medical officers; has failed to follow its own regulations which require that consideration be given to all the evidence as a whole in the evaluation of disability and that the higher of two evaluations be assigned where the circumstances warrant it. As a result, it managed to produce a "massacre" in which hundreds of Puerto Rican veterans were deprived of service connection for psychiatric disabilities previously granted by the Veterans' Administration itself-on the basis that such grants of service connection were "clearly and unmistakably erroneous." Such action was motivated by the fact that statistics revealed that more claims for service connected psychiatric disabilities were granted in Puerto Rico than in the continental United States; failing to take into account the established fact that the incidence of psychiatric disabilities in Puerto Rico is much higher than in the continental United States. Veterans whose psychiatric disabilities were not recognized during military service by untrained medical personnel, or were not recorded in service, or whose medical records were lost or destroyed, have been denied benefits routinely when such disabilities became evident a short time after service; and no credence has been given to statements by fellow servicemen in support of the claims; even in cases where veteran was on combat duty for as much as 10 months. A service-connected psychiatric disability evaluated as 30-percent disabling by the Veterans' Administration has been confirmed after such disability required five hospitalizations by the Veterans' Administration in a 4-year period. The Board of Veterans' Appeals decision confirming said action, on the final recourse allowed by the present law, did not even mention said hospitalizations. A veteran with a service-connected schizophrenia died due to intoxication by morphine while hospitalized by the Veterans' Administration in a contract hospital. The veteran had been under previous treatment for drug addiction, and had attempted to commit suicide on previous occasions. Based on history of drug addiction, and regardless of the fact that there was no evidence as to whether veteran had injected on himself the fatal dose of morphine, the Veterans' Administration determined that said death was not related to the service-connected schizophrenia and did not arise out of any accident or negligence connected with hospitalization or treatment. 93-774 078 - 31 There is at present no guarantee in effect that the Veterans' Administration is going to follow the laws on veterans' benefits, or even its own regulations, and no recourse to compel it to do so. This is a dangerous situation in a delicate area involving the Government's attention to veterans. Even the thousands of aliens who enter the United States illegally are entitled to judicial attention. Veterans should not be deprived of it. The situation is further aggravated by the fact that the law in effect deprives veterans of the opportunity of being adequately represented by counsel in their claims before the Veterans' Administration, through a provision which limits to $10 the maximum fee that may be received by such counsel. This is obviously a case of flagrant discrimination against those veterans. Thank you, Mr. Chairman. I want to thank you for the opportunity of appearing before you and permitting me to be here on such short notice. And I want to say that this is a momentous occasion. You are going to make a momentous decision for the veteran population in the United States, and I hope that you will go for approval of this bill for the veterans of the United States. Thank you. Chairman CRANSTON. Thank you. I believe that your appearance is the first by a representative of the National Congress of Puerto Rican Veterans and we welcome you. Who is going to be next? Would you please abbreviate as much as you can? We are behind schedule. Mr. LIVELY. Since my written testimony is fairly complete I will just say a few words. I am a Vietnam veteran and I have received extensive treatment in the military and the VA and I have appreciated all of their assistance. However, in the last year and a half, by working with the legal services in Shelby County, I have assisted indigent veterans that have been deprived of all benefits or partial benefits and many of them I believe would have meritorious cases in a court of law and obtain VA benefits. In my written testimony I pointed out several real cases and purposely, I selected several older veterans. A much larger number of veterans will be in the same status in 10 to 20 years due to the similar denial of benefits to them. A similar record of lack of employment and rehabilitation will create a large mass of humiliated, indigent, disabled and elderly veterans. Veterans denied by the VA. I think that S. 364 is extremely important and by means of my written testimony I think it is well supported. Thank you. Chairman CRANSTON. Thank you very much for your testimony and thank you for your brevity. Your full statement will go in the record. Mr. DALEY. Good afternoon. I am with Mr. Lively and also with the military law project and I will speak very briefly on just the equitable aspects of Senate bill 364. There are just three main points. I will go over them very briefly. They are with our testimony. The first is the fact that the idea of having judicial review of veterans claims is not a new idea. It is an original idea. In 1792 and 1793 Congress legislated that goal and it was the first time they vested the circuit courts to review the claims. The judges turned around and said this isn't the correct procedure and then it was denied. Congress responded by changing the procedures and again establishing a channel through the judiciary to handle the claims. Second, from a proper perspective this can be seen not as a radical change to the system but rather a step toward the normalization of the system. The Veterans' Administration is the only agency that does not operate under the Administrative Procedures Act or similar legislation. That's why I say that it would bring about a normalization of the system. The third is the fact that judicial review to the veterans guarantees fundamental fairness under the Constitution. It is important to remember that these veterans put their lives on the line to preserve our system. Everyone else receives from supplementary social security income, our largest corporations, but not our veterans. For these reasons I think S. 364 is extremely important. I hope you will give it your most careful consideration. I think it's a change that will be beneficial to all veterans and I believe it is a change that the system needs. Thank you for the opportunity of appearing and speaking. Mr. GROSS. I will not repeat anything in my written presentation, except to point out that as a private practitioner, I find that the Privacy Act does provide for a mode of judicial review with respect to claims files in which the VA has refused to incorporate necessary evidence or has refused to excise irrelevant and untrue material. It bothers me that my colleagues at the bar seem to be totally oblivious. to the salutary judicial review provisions of the Privacy Act. Senator THURMOND. Please speak into the microphone. Mr. GROSS. Yes, sir. For example, my brothers of the ABA this morning, when asked did they know of alternative routes to judicial review and to resolving the problem of the inaccurate or incomplete record, did not have that answer on the tips of their tongues. The Privacy Act is new. There is literally no case law construing it, but I think the plain language of the act does provide judicial review as to files with which the agency has gone forward and decided without respect to the facts needed for fair adjudication. I would also add that to my mind a mandamus review, which would not involve judges in ascertaining the merits of a claim for benefits, but rather mandamus review requires ascertaining that the VA had followed its own regulations, is obviously and sorely needed. Dr. Pellerin this morning talked of Frank X's case, and two of the cases that I reviewed in my written presentation are very much on a par. The second of those cases-we'll call him Paul X-was a gentleman who was placed in a body cast back in 1946 because he had fractured a cervical vertebra, upper back. The body cast resulted in harm to his lower back. He went to the VA almost immediately after he was discharged. The VA insisted they would only examine him for the upper back. He wrote a letter to the VA saying you looked at the wrong thing. You didn't take the X-ray that you really need. It is not the cervical spine that bothers me but the lower spine. He got no answer to that letter, which was written and received within days after that examination. The VA did not examine his lower back until 25 years later. When he comes to me 25 years later-more than that, almost 30 years later-trying to present his claim, reopen his claim at the VA |