Although I am loath to suggest an alteration in the text of a bill that is elegant in its clarity and conciseness, I would favor amending S. 364 to provide a reasonable fee limit, analogous either to the Federal Tort Claims Act or the Social Security limitations. Lawyers do not bargain at arms' length with the general population. There is no need for an attorneys' feast at the V.A. after the decades of famine. II. JUDICIAL REVIEW I do not oppose the judicial review provisions of S. 364, although I am not convinced that they represent the best approach. My reservations are best described by separately discussing three distinctive bases for challenging a B.V.A. decision, and reviewing the available and potential remedies. A Board of Veterans' Appeals decision might be attacked because (1) the underlying record is inaccurate or incomplete; (2) the Veterans' Administration has not conformed to the requirements of the law; or (3) the B.V.A. application of the law to the facts is so strained as to yield an unfair result. Parenthetically, it should be noted that the law requires V.A. decisions to summarize the evidence, discuss its legal significance, state the applicable law, and apply the law to the facts, thereby yielding a result. See 38 U.S.C. § 4005(d). Because these decisions are so detailed, errors (if any) are easily identifiable-a factor that would greatly diminish the time needed for judicial review of the agency record. (1) Inaccurate or Incomplete Underlying Records If the V.A., or any other agency, adjudicates a file that contains false information, or that does not contain available material evidence, the resulting decision is inherently unfair. Unfortunately, in any massive bureaucracy, some files are bound to be incomplete or inaccurate. The V.A.'s files contain not only V.A. errors, but also errors incorporated from the veteran's military records. Most of my clients' case files are prejudicially inaccurate or incomplete. In the first case, an Army psychiatrist accepted as true certain statements which were the fantasized product, rather than accounts of the precursors, of a mental disturbance. In the second case, the V.A. forgot to process a claim. In the third case, the V.A. forgot that there were two periods of service, and treated a pre-morbid history as pertaining to childhood, rather than to the interval between enlistments. In a fourth case, a disqualification from benefits was foisted upon the veteran months after a federal court ordered the Army to cease exercising custody and control. In a fifth case, the Army lost some medical records, and the V.A. refused to conduct the physical examinations that must precede any finding of disability. In a sixth case, the veteran inverted the order of two digits in his claim number, thereby generating some bureaucratic slapstick. I am prepared to identify the veterans involved, but consideration of their privacy interests precludes doing so in public session. Especially because many V.A. adjudication personnel believe that military records must be given face value, and that nothing can be expunged from V.A. files, there is a very real need for judicial review of the contents of a claimant's file. S. 364, which provides for such review under the Administrative Procedure Act, reaches most but not all of the errors I have just related. I submit, however, that the wise attorney would look to the Privacy Act of 1974, 5 U.S.C. § 552a, rather than S. 364, to remedy these errors. The Privacy Act's access and amendment sections are clearly designed to prevent decisionmaking on the basis of incomplete or inaccurate records. The Privacy Act provides for de novo judicial review. The Privacy Act provides for money damages in certain instances. The Privacy Act provides for the award of costs and reasonable attorneys' fees in appropriate cases. Any award of costs and attorneys' fees is not deducted from the damages; it is borne by the government. Although my initial efforts to invoke the Privacy Act provisions for amending the records of veterans were rejected out of hand, since the advent of the Carter administration the V.A. has treated my Privacy Act demands with due care and consideration. From my perspective as an attorney in private practice, the Privacy Act is much the better alternative to the Administrative Procedure Act for litigating the accuracy and completeness of V.A. claims files. Consequently, S. 364 is at best superfluous-and at worst, might be construed as superseding the Privacy Act-with respect to the contents of the underlying files. (2) Violations of the Requirements of the Law In more than one of my clients' cases, the V.A. has ignored the law. The presumption of sound condition (38 U.S.C. § 311), is all too lightly disregarded, notwithstanding the salutary provisions of 38 C.F.R. § 3.304(b). The “reasonable doubt" doctrine (38 C.F.R. § 3.102) is occasionally turned on its head, a heavy burden of persuasion being cast upon the claimant. In a seventh case, a Koreanera veteran is deemed psychotic by V.A. treating personnel, and has been found by Social Security to be permanently disabled by psychosis. The V.A. adjudicators, however, insist that beyond all reasonable doubt this veteran is not psychotic for purposes of compensation. More than occasionally, the V.A. fails to undertake adequate "development" of a case (i.e., fails to solicit the pertinent evidence). Such happened in at least three of the cases to which I have alluded above. The classical remedy when an agency ignores its own rules is mandamus. See 28 U.S.C. § 1361. 38 U.S.C. § 211 in haec verba precludes mandamus review of V.A. claims for benefits. Even so, the courts might adopt the view that where mandamus would ordinarily lie, the agency necessarily has violated the constitutional requirement for due process of law. If that were clearly the law, under Johnson v. Robison, 415 U.S. 361 (1974) (constitutional violations by the V.A. can be judicially remedied), mandamus relief against the V.A. is, in theory, already available. There has been no rush to test that theory in the courts." I submit that where an agency in fact acts lawlessly, public policy as well as private claimants' interests command that Article III judicial power be brought to bear. The mandamus remedy is clearly appropriate, and should explicitly be made available for review of V.A. proceedings. S. 364 would accomplish that salutary purpose. So would new statutory language that did not preclude judicial review "by mandamus or otherwise." (3) Unfair Application of the Law to the Facts V.A. personnel have the same frailties as the rest of humanity. They, like judges, senators and private citizens, make errors in judgment. Their sometimes gross errors in judgment-whether made in good faith, or as I have more than once seen, out of bias or orneriness-can have substantial adverse financial impact upon disabled veterans. As the law now stands, the victimized veteran has no recourse. S. 364 would permit judicial review for gross errors in judgment, but under the difficult to administer A.P.A. standards. I strongly favor judicial review of final decisions, but for reasons perhaps different from the usual. My social science training has convinced me of the need for imposing upon every agency extra-agency feedback and accountability. I am not the only independent claims representative who has been reminded many times by V.A. adjudicators that their decisions cannot be tested in court. There exists a well-developed institutional arrogance, pursuant to which V.A. attorneys often refuse to entertain arguments based on judicial opinions in analogous cases. Their law, these V.A. personnel tell me, is separate and a part from the principleseven the constitutional principles-that apply to the rest of our government. That unfortunate attitude, which is tantamount to anti-veteran bias, would quickly vanish were Sec. 2 of S. 364, or similar legislation, to be enacted." I believe that the psychological impact upon V.A. personnel of judicial reviewability would be salutary. But the practical consequences for the aggrieved veteran would be de minimis. Assuming for the moment that the Privacy Act and mandamus remedies were freely available, there would only be a slight increment in substantive justice to be gained through a "substantial evidence" testing of final V.A. decisions. Arguably, the Johnson v. Robison discussion of due process already provides judicial review in those rare cases when there is simply no rational basis for a V.A. determination. The remaining cases which might yield a reversal in the courts require drawing the fine line as between "slight" and "substantial" evi In my limited experience, most B.V.A. remands reflect either a failure to adequately develop, or a failure to resolve secondary claims that have been placed in issue. Some remands, however, reflect new claims or new evidence first presented during the course of a B.V.A. appeal, and not previously considered by a regional office. In Plato v. Roudebush, 397 F. Supp. 1295 (D. Md. 1975), the court adopted a similar view. I understand that the V.A. unsuccessfully pressed the Solicitor General to authorize an appeal of that decision. Few lawyers want to argue jurisdictional theory in order to reach the merits of their claim, especially when a favorable ruling on the merits may yield no monetary award, only a reprocessing of the claim. Whatever might be the impact of these close cases on judicial dockets. I wholeheartedly endorse Senator Hart's view (Cong. Record. S1062-1063, Jan. 17, 1977) that veterans should not be denied judicial review in the view that "justice is too expensive." It may well be that the appearance of justice, and hence faith in our government's integrity, would be fostered by enactment of S. 364, even if few veterans thereafter won reversals of adverse B.V.A. decisions. dence. I fear a judicial propensity to deem any supporting evidence "substantial." Those extraordinary judges who can divine the fine line between slight and substantial evidence will probably uphold the V.A. determination in a large majority of cases. I suspect that most judges will in practice search the V.A. record for a rational basis in fact to support the decision. They will almost invariably find one, and thereupon rule against the claimant. A few judges may construe the "substantial" evidence test as tantamount to a de novo review. Their relatively frequent decisions for claimants, although promoting justice in fact, would be candidates for reversal on appeal. In practice, then, the A.P.A. scope of review might result in a judicial decision favoring the veteran in relatively few cases. In many of these cases, access to the courts under the Privacy Act or the Johnson v. Robison gloss is already possible. If the mandamus remedy were also made available, few meritorious V.A. claims that have been wrongly rejected would be exempt from judicial review. I am of the considered opinion that S. 364, by authorizing judicial review under the A.P.A., would do more to generate false hopes than to right bureaucratic wrongs. The vast preponderance of adverse V.A. decisions is supported by arguably substantial evidence. Unfair decisions are almost always premised upon a file tainted by inaccurate or incomplete information, or a failure to observe the controlling law and regulations. I believe that Congressional endorsement of the Johnson v. Robison due process holding, combined with a grant of mandamus jurisdiction (and the Privacy Act remedy already available), would dramatically ameliorate the lawlessness that all too often infects V.A. adjudications. This package of remedies would have the needed psychological and practical impact upon V.A. decisions. This package of remedies would have a much smaller judicial impact than would review under the A.P.A. This package of remedies might well, on balance, be preferable to the judicial review provision of S. 364. CONCLUSION I favor substantial liberalization of the statutory limitation on attorney fees. This would enable the veteran to obtain the services of counsel of his choice. In the absence of amendment or repeal, the $10 limit precludes the best legal talent from representing veterans who present difficult cases involving large potential awards.9 Although I do not oppose the judicial review provisions of S. 364, I believe that adding mandamus jurisdiction, and review of constitutional errors, to the jurisdiction already provided by the Privacy Act, would serve the same ends as S. 364. This would generate less judicial impact (and especially time-consuming review of factual disputes), and fewer false hopes, than S. 364 might generate. CHAIRMAN CRANSTON. I want to say we are not quite done. We have an unscheduled witness this morning who has traveled here from Jersey City, Kenneth McCarthy. Mr. McCarthy had requested the opportunity to appear this morning, as had other individual veterans. It is generally impossible to afford each veteran who wishes it, such an opportunity. Our time constraints are just too great and I regret that. But, what we do is to try to have representative witnesses; that is, witnesses whose views, backgrounds, and organizational affiliations, or nonaffiliations are reflective of those affected by the legislation and request them to appear. And we print in full, in the hearing records, all appropriate testimony submitted. We have followed that procedure with respect to today's hearing. However, because Mr. McCarthy has traveled here today, we will hear from him. Mr. McCarthy, please come forward. The full written statement you have given us will appear in full in the record. My own experiences do not cast doubt upon this assertion. My private practice, which includes a number of complex no-fee and low-fee cases over and above my veteran clientele, does not permit me to accept new V.A. clients. TESTIMONY OF KENNETH G. McCARTHY, JERSEY CITY, N.J. Mr. MCCARTHY. Senator, I will try my best to give a history. I was pleased to hear some of the speakers you had here today, specifically the doctor who spoke about how disabled veterans in other issues were improperly handled by the Board of Appeals. I gave a copy of my statement to Mr. Wickes, one of your assistants and I will start by saying my name is Kenneth C. McCarthy. I am a totally disabled veteran, militarily retired. I consider this an honor to present the real concern of all totally disabled veterans and regular veterans. We are seeking rights, a court review, instead of repeated denials caused by the outdated injustice in the Veterans' Administration. Let me take this opportunity to convey to you certain aspects of the unjust ways in which American veterans, wounded and otherwise, are treated. First, and of crucial significance, is the fact that veterans constitute the only group as such in American society who do not enjoy the fundamental right to judicial review, that is to say, when the Veterans' Administration decides the fate of a veteran, wounded or otherwise, if the veteran feels that the decision of the VA is in some manner unjust, he is not permitted to seek the aid of the courts to review the decision. Such a state of affairs would seem to deny the veteran, in no uncertain terms, the right to due process under the U.S. Constitution, which every other citizen of the United States enjoys. It is to be further noted that judicial review is permitted from every other Federal agency. There is, of course, a bitter irony to all of this. It is after all, the veteran who has risked his or her life that other American citizens might live in freedom. It is the veteran who has lost his life that others might live in freedom. Now, when this same veteran who has risked his or her life comes home wounded, it is nothing short of an outrage that he is deprived of his fundamental rights to bring his grievance before a court of law. The veteran is thus deprived of the very rights for which he fought. Yet, others continue to enjoy those fundamental rights embodied in the U.S. Constitution. Not only is the veteran deprived of judicial review of a decision. by the VA under title 38 of the Code of Federal Regulations, section 3:1820. An attorney is allowed only $10 to represent a veterans' case. This provision was enacted in 1933, almost a half century ago. Thus, unless a veteran is fortunate enough to find an altruistic attorney, his right to counsel, also guaranteed by the U.S. Constitution, his right is in effect denied. The net result is that the VA has unbridled discretion to decide the fate of a veteran, discretion that will not be reviewed by a court. Now, let us consider some of the arbitrary classifications of the VA, which are rigidly applied again and again not subject to judicial review. A veteran who is blinded but retains his or her eyes is entitled to 100 percent compensation $8,484. Also an extra compassion award from Congress, $2,516, a total of $11,000 per year from the VA. The veteran who is blinded and has lost both eyes is entitled to $12,000 per year, which is $1,000 more than the blinded veteran who retains his eyes. The veteran who is permanently confined to a wheelchair because of paralysis or amputation of his or her legs is entitled to $21,000 per year, including a $25,000 house grant to purchase a home. The blinded veteran, on the other hand, receives no such $25,000 house grant. Mr. Richard C. Roudebush, former Director of the VA 1974-76 addressing himself to Senator Daniel K. Inouye, of Hawaii, a disabled veteran, because of my inquiry, stated that there was no entitlement to service-connected disability of blindness in both eyes since such veterans may live in conventional homes without the aforementioned special fixtures or devices. All of these provisions are covered by section 801 of title 38, United States Code. Mr. Roudebush never stated when these discriminatory rules and regulations were enacted by the VA, not even to Congress. This is an issue that clearly shows that there should be a judicial review. Whoever made these arbitrary decisions surely did not live his life in a wheelchair as blinded veterans are forced to do. I have checked and reviewed this matter, and I'm certain that this underrated disability was created in 1930, and revised, if at all, in 1946, 31 years ago. The veteran who has received brain damage, like the blinded wheelchair veterans, they all are deemed 100-percent service-connected disabled. However, the veteran with brain defects and impairment, mental illness, inability to work, difficulty to mingle in society, this veteran only receives $8,484 per year, and does not receive that extra congressional compassion award or any grants. Thus it would appear that the greater the physical manifestations of disablement, the greater the award, giving no concern to the brain damaged veteran, both physical and mental injuries. This procedure shows some advantage taken against the disadvantaged by the VA. The brain damaged veteran is faced with a hopeless life, not able to know his real benefits. Now, I submit that the qualitative differences between the suffering of a blind veteran versus a veteran confined to a wheelchair versus a brain damaged veteran are not so clear cut as the VA would have you believe. The injustice is not so much that different values are assigned to each of the above injuries, but that an individual veteran cannot appeal to a court to consider his particular, individual circumstances. Rather, the VA rigidly decides what the veteran is entitled to according to its arbitrary standards and guidelines. Herewith, another example of the types of discriminatory categories practiced by the VA. A male veteran who loses 50 percent or more of his penis is entitled to a 30 percent compensation award, whereas a female veteran who loses both breasts is entitled to 80 percent compensation award and 50 percent if only one breast is lost. For instance, a veteran subject to the loss of the use of a creative organ, penis graded as such. (This particular one was from July 3, 1930. A $25 war risk insurance in 1946, increased $5 to $30. In 1952, increased $17 to $47. In 1972, increased $5 to $52.) These are awarded under subsection (k) in the schedule of disability rates of the Veterans' Administration. The value of a male veteran by all means, certainly is worth more than this ridiculous rate. Again, this is not subject to judicial review. |