Administration are being subjected to judicial review, that the courts would be inundated with judicial review proceedings dating back to, it is impossible to say when dating back to, as long as they are a valid or existing claim outstanding.

We think that would not be a sound practice to follow.

Chairman CRANSTON. What if Congress provided for judicial review similar to that which was done with respect to social security decisions and benefits?

Mr. GOLDBLOOм. I believe, I am not certain, but believe the Congress provided for judicial review simultaneously with the granting. Chairman CRANSTON. Only prospectively?

Mr. GOLDBLOOM. Yes; but may have also been simultaneously with the granting of the right which Congress was at that time creating.

Chairman CRANSTON. Are there any other precedences for that, making it de novo?

Mr. GOLDBLOOM. I don't know.

Chairman CRANSTON. Would you look that up?

Mr. GOLDBLOOM. We could try.

Chairman CRANSTON. What would be your views on the BVA proposal, well, I guess we went into that.

Would it be advisable to establish a program of administrativ e law judges in the BVA?

I don't know if you can comment on that one.

Mr. GOLDBLOOM. As I understand it, the use of administrative law judges would alter the existing procedures in the Veterans' Administration.

We are not, since we support the confirmation of existing procedures, I don't think that the use of administrative law judges at this point in time is warranted by the record.

Now, if the Congress, after making a study of the practices of the Veterans' Administration, thought that a more structured proceeding would be appropriate, then, certainly, the use of administrative law Judges would be a proper way to proceed.

But, as I understand it the existing procedures in a sense parallel that which many administrative law judges in other agencies provide, that is, a form of a structures proceeding which is at the same time informal and not adversary in nature.

Chairman CRANSTON. What has the Social Security Administration done about that?

Mr. GOLDBLOOм. The Social Security Administration uses administrative law judges, but at the same time they have a nonadversary proceeding for the gathering of evidence and for the making of findings of fact.

So, that in a sense, there are parallels between systems. At the Social Security Administration, they do have an appeals council which, I think, is somewhat parallel to the Board of Veterans' Appeals, which renders the final decision on behalf of the Secretary.

Chairman CRANSTON. On page 5 you suggest that social security benefits, because they are in part paid for by the claimant may be distinguished in certain respects from veterans' benefits.

I think that most people would agree that veterans too have paid for their benefits and, in some cases, in a way far more weighty than monetary contributions; would you agree with that?

Mr. GOLDBLOOM. I certainly would.

We were in no way attempting to downgrade the services performed for the country by veterans. It was simply a legal instruction given to veterans' benefits claims in the nature of the fact that at one time they had been construed as a gratuity rather than something paid for. Chairman CRANSTON. Suppose you take a look at S. 1307 and prepare an analysis with respect to the President's comments on the unconstitutionality aspects of that.

If you can give us also the opinion on S. 1307, we would appreciate your assistance.

We also appreciate your offer of assistance in drafting specific statutory provisions to carry out the goals sought by this legislation and will be in touch with both you and the VA in that regard. That concludes my questions.

Strom, do you have any further questions?

Senator THURMOND. That's all.

Chairman CRANSTON. Thank you both very much.

Our next witness is Donald H. Schwab, director of the National Legislative Service of the Veterans of Foreign Wars of the United States.

He is accompanied by William Sheehan, legal counsel.

We welcome you.

Mr. SCHWAB. Thank you, Mr. Chairman.

In accordance with your earlier request, we are happy to summarize our statement with the understanding that it will be printed in its entirety.

Chairman CRANSTON. Thank you very much.

TESTIMONY OF DONALD H. SCHWAB, DIRECTOR OF THE NATIONAL LEGISLATIVE SERVICE OF THE VETERANS OF FOREIGN WARS, ACCOMPANIED BY CAPTAIN WILLIAM SHEEHAN, U.S. NAVY, RETIRED, LEGAL COUNSEL FOR THE NATIONAL VETERANS SERVICE

Mr. SCHWAB. My name is Donald H. Schwab and my title is director, National Legislative Service of the Veterans of Foreign Wars of the United States; and the gentleman on my right and your left is Capt. William Sheehan, U.S. Navy, retired, and legal counsel for the national veterans service.

I pointed out in my prepared text and by resolution passed by the last national convention, representing our more than 1.8 million members, that we oppose the passage of any legislation to require a judicial review of decisions of the Board of Veterans' Appeals. Our rationale therefore is briefly as follows:

(1) We believe the veterans' organizations are performing in a most commendable and professional manner in representing claimants in both the VA regional office and before the Board of Veterans' Appeals.

The Veterans of Foreign Wars has been gratuitously furnishing such qualified representation for more than 50 years, regardless of the claimant's character of discharge, or whether he or she is eligible for membership in our organization.

93-774 O 78-40

(2) Judicial review existed back in 1793 when circuit courts were authorized to make determinations as to entitlement to veterans' pensions.

However, this provision was repealed within the year due to the unscrupulous practices of some attorneys and other profiteering

interests.

(3) There are no exclusionary rules of evidence applicable to the Board's proceedings. Because almost any document submitted by a claimant is filed in the folder and may be considered in reaching a decision, the claimant is afforded greater flexibility in presenting his appeal than is possible in the courts.

While the Board has formal rules of practice, the only requirements set forth are statutory time limits in which to file an appeal.

The rules of practice have been composed in a simple, direct manner to allow an appellant to pursue his appeal without the assistance of an attorney if he so desires.

(4) Claims with the Veterans' Administration may be reopened upon the submission of new, pertinent and material evidence.

(5) Once a court of law had ruled adversely on a particular claim, that claim could not again be considered by the Veterans' Administration.

(6) Judicial precedence could well restrict the future awarding of benefits to the disadvantage of veterans, their dependents and survivors.

An appeal to the courts on matters of fact would not, in our opinion, be desirable since it would constitute an appeal from a body expert in the particular subject to a relatively inexpert body and have a chilling effect on subsequent adjudication.

(7) A court review would require the claimant to hire a private attorney for representation at considerable personal expense.

I would add at this juncture, one of the priority legislative goals of our national commander-in-chief, John Wasylik, is to "oppose passage of any legislation to provide for a judicial review of administrative determinations made by the Board of Veterans' Appeals."

When similar hearings were held in San Francisco, California, on June 3, 1977, aspersions were cast by some upon the quality of representation furnished in Veterans' Administration regional offices and before the Board of Veterans' Appeals by veterans' organizations.

Also, that the service organizations may be unwilling to fully and fairly represent certain types of claimants such as those with less than honorable discharges.

I have enlarged on this in my prepared text, but this allegation is wholly unfounded.

We believe, Mr. Chairman, the VA by and large is doing a commendable job, both in the regional offices and the Board of Veterans' Appeals in Washington, D.C., in carrying out the mandates of the Congress of the United States.

The vast majority of cases disallowed, fall primarily into one of the three following categories and clearly do not require a legal determination but, rather, a factual one such as a jury would make.

One, World War II veterans who are retiring and, some 30 or 35 years after the fact, are attempting to prove service connection for their infirmities of aging, degenerative joint disease, hypertension,

et cetera.

Two, veterans in receipt of pension for their established non-service-connected disabilities who are, again, attempting to prove service connection since compensation payable for service-connected disabilities is not subject to a needs test as is pension payable for nonservice-connected disabilities.

Three, veterans with service-connected disabilities rated at 30 or 40 percent who have repeatedly sought to have their degree of disability increased the necessary 10 to 20 percent so that their rating would be 50 percent and additional moneys awarded for the dependents.

One very important facet of the functioning of the Board of Veterans' Appeals, overlooked by the proponents of judicial review, is the fact that the board, not infrequently obtains outside expert medical opinion when deemed appropriate.

These expert opinions are rendered with the clear understanding that the authors will not be subjected to court appearances and thus taken away from their practices for varying periods.

These opinions are obtained at no cost to the veteran. However, if judicial review should become a fact and an expert medical opinion required, the veteran would have to pay, not only the very high cost thereof but, also, the expenses of the witness, if required, to appear in

court.

Much has been said about the overloading of our court system and I think of the citations I have here the one most pertinent is that of Chief Justice Warren E. Burger, in an address at the Columbia University Law School in New York City on May 27, 1977, which opened with:

I do not know what Judge Hand would think about those who seem to regard litigation as one of the essences of life and who scorn any solutions short of the traditional, but the harsh truth is that unless we devise substitutes for the courtroom process and do so quickly-we are well on our way to a society overrun by hordes of lawyers, hungry as locusts and brigades of judges in numbers never before contemplated.

Mr. Chairman, we have no official position with respect to attorneys' fees and will be happy to respond to any questions you may have.

Chairman CRANSTON. Thank you very much, Don. It is very helpful to have the benefit of the research that went into your testimony.

Would judicial review of VA determinations or the allowance of reasonable attorney fees in VA proceedings have a substantial adverse impact on the VFW veterans service officers program and, if so, could you spell out what that would be?

Mr. SCHWAB. I don't think it would have any effect whatsoever. Chairman CRANSTON. You don't feel then that there is any need to fashion attorneys' fees in a way to reduce any detrimental efforts? Mr. SCHWAB. Sir, whatever is done will have no real impact in our work, representation, so far as attorneys' fees are concerned. No.

Chairman CRANSTON. The VFW, with Resolution No. 616: A, opposes legislation to provide for judicial review of BVA determinations, and, of course, your testimony was to the same point.

How do you believe the veterans turned down by the VA can be harmed by having the option of seeking judicial review when he believes the BVA has made a mistake?

Mr. SCHWAB. Bill, would you like to answer that?

Captain SHEEHAN. Yes.

Well, we believe that the veterans can be harmed, Mr. Chairman, by the presumed restrictions of a review by a court authority.

I might further comment that in my opinion judicial review as a philosophy has been considered and our resolution reached in the light of judicial review as generally set forth in S. 364.

Now, in Mr. McMichael's testimony today, he looked upon judicial review, and I believe was basically supported by the Department of Justice representative, judicial review in a most different light, at least as I interpreted his presentation.

The Veterans' Administration was in support of judicial review as a principal, but not as provided for by S. 364.

So, I could not predict what our membership might do, whether they might change if judicial review was presented to the membership again, along the lines of the presentation of Mr. McMichael.

Chairman CRANSTON. If you could give us an analysis of those points of the VA testimony that are relevant, you may pass those views over to us and that would be helpful.

Captain SHEEHAN. I wouldn't be prepared to go into detail at this time.

Chairman CRANSTON. No; for the record, I mean. Not now.
Captain SHEEHAN. Yes, of course.

In general, as I interpreted what was said, that the judicial review that might be a suggestion by the Veterans' Administration is a form of judicial review that would preserve everything that the veteran has now, in the way of rehearings, in spite of an unfavorable decision by a court.

Chairman CRANSTON. Well, we will look for your record comments on that. Counsel, do you have a question?

Mr. SCOTT. Yes. Would it be possible that legislation could, in fact, be drafted which would provide for judicial review but not be contrary to your organization's resolution on the subject?

Captain SHEEHAN. Well, we cannot speak for the membership. We are spokesmen for the organization as of now and the resolution that the chairman identified does represent the formal, official, position of the Veterans of Foreign Wars at the present time.

If there were a modified version of judicial review, then it is a new question in my opinion.

Chairman CRANSTON. Obviously, it might allow for relieving some

concerns.

Mr. SCHWAB. Let me clarify somewhat.

Our resolutions run from convention to convention. They are continuing and binding on us for the entire year and in addition to our resolution, as pointed out in my testimony, this opposition to any judicial review is one of prior legislative goals of our national commander in chief.

But, we are bound to this until next August, at least.
Chairman CRANSTON. Yes, I understand.

On pages 3 through 5 of your testimony you give seven reasons for the VFW's opposition to judicial review. In item No. 6 you state:

Judicial precedence could well restrict the future awarding of benefits to the disadvantage of veterans, their dependents and survivors. An appeal to the courts on matters of fact would not, in our opinion, be desirable since it would constitute an appeal from a body expert in the particular subject to a relatively inexpert body and have a chilling effect on subsequent adjudication.