INDEPENDENT OFFICES APPROPRIATION BILL, 1935

FRIDAY, JANUARY 26, 1934

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS,

Washington, D.C.

The subcommittee was called to order by Hon. Carter Glass, chairman, at 10 o'clock a.m.

Present: Senators Glass (chairman), Russell, Coolidge, Adams, McCarran, Hale, Steiwer, Townsend, and Cutting.

The CHAIRMAN. We have a quorum present. Mr. Hayes finished his main testimony yesterday, but if there are any members of the committee who desire to ask him any questions, he will be glad to answer them.

Senator MCCARRAN. I would like to have Mr. Hayes go a little further into one subject, and that is with reference to the cases that have been passed on by the board.

VETERANS' ADMINISTRATION

STATEMENT OF EDWARD A. HAYES, NATIONAL COMMANDER, AMERICAN LEGION, INDIANAPLIOS, IND.-Resumed

Mr. HAYES. The experiences caused us to reach the conclusion that there had not been what every one would have insisted upon, namely, adequate opportunity for proper presentation of their cases on the part of these claimants for the consideration of the special boards before they were decided.

Senator MCCARRAN. In that respect, Mr. Hayes, have you in mind anything in the nature of the classes of cases that concretely illustrate that statement?

Mr. HAYES. Yes, sir; those cases particularly who are in the insane category, and those cases who are in the active pulmonary tuberculosis category in which they are, by reason of their physical condition, confined to their beds and unable to personally appear and answer questions asked on the part of the board.

The CHAIRMAN. Mr. Hayes, is there not a board of appeal here in Washington to which cases of those classes can be referred?

Mr. HAYES. Yes, sir; there is such a board. Certainly, without any intention to record any venom, but because I know it is the fact, I will say that that special board of appeals is now engaged in considering those cases which have been appealed by the Government. In other words, the Government is appealing cases which were adjudicated in favor of the man, and now those cases are being given first consideration, while the cases appealed by the men are being deferred until all the cases in which the Government is interested primarily are taken off the rolls wherever it is possible to take them off the rolls.

The CHAIRMAN. What reason is given for that preference?

Mr. HAYES. I have no answer to that, sir. I know of no reason that has been given. Of course some of the results are rather palpable right now. They are taking in a large percentage, at least in one State. The adjutant of the department told me day before yesterday of 42 cases considered in the Kansas City office. The special board in Washington had taken off over 50 percent of them.

Our real basic objection to the results of the Board, and I believe I said to this committee yesterday that I had so informed the President when he asked me, was that there was no real chance in our honest judgment for proper judicial determination of these cases.

Senator ADAMS. In some cases, at least, the men were represented before the Board when their cases were presented. Is it possible to draw a line in cases where there was a personal presentation of the case and in cases where there was not, as in the insane cases that you have mentioned?

Mr. HAYES. It is possible to draw a line along the line I am sure you have in mind, but to draw a distinction between the types of those cases it would be impossible for me to do. However, I think this will illustrate. In several of our States where our Legion representatives-men schooled in these technicalities-had acted as the advocate, so to speak, for the claimants, the record of their successful handling of claims is a revealing picture. In other words, where they represented the claimant, they were interested in the man and brought out for the man facts which would tend to prove his particular case. For instance, in Kentucky 80 percent of the cases represented by our representatives there were won. So that in such cases the percentage of allowance was much greater than in other cases wherein those circumstances were not existent. I think that would illustrate to you that we feel that if there were special appearances for the man or personal appearance of the man in more of the cases, a better determination from the justice standpoint would have been reached. The CHAIRMAN. How could that be corrected, Mr. Hayes, upon review? Might not the same thing happen as has happened?

Mr. HAYES. The theory of our legislation, Senator, is that all of those cases who have been receiving presumptive service connection over the years should be, by the operation of this law, placed back in the status which they occupied prior to March 20, and that immediately the boards in the regional offices, by the authority now for the first time, if this law of ours is passed, is given to them, could adduce evidence to establish that these cases were not due to their service, and they could immediately take them off out there in the field. Then if there was a complaint on the part of the man that action had been taken without just reason, he could follow the same appellate procedure that has been existent in the Veterans' Administration for a number of years. It would not be, as it is now, the reverse order, with the insane man or the tubercular man feeling that he never had a chance to go into court and produce his evidence, which evidence, I stress, he was not required to produce over the course of 12 years in many instances.

Senator HALE. Then it would not abolish the work that has been done by the Board. It would simply provide that the court should

look into it, and if it should be affirmatively proved that the man was not connected, then he would go off?

Mr. HAYES. When you say the Board, Senator-it would abolish not the work but the results of the Board. The work of those boards

would be performed for us by the Veterans' Administration. Senator HALE. And the Board would have to assemble the facts again and go over the case?

Mr. HAYES. No. Our theory is that the Board would be unnecessary; that the existing facilities of the Veterans' Administration, as they existed prior to the Economy Act would be, and we thought last summer they would have beem thoroughly adequate to take care of this matter, if the theory which we then advanced and which we now reiterate had been accepted, namely, that that affirmative action on the part of the Government should be the thing to be taken, particularly as to these insane and tubercular cases who had been given the benefit of this presumption over the course of 12 years.

We feel and there are many lawyers here, I am sure that while the doctrine of estoppel cannot be applied as against the Government, the element of fairness which is involved in the doctrine should be made applicable as applied to those cases. The insane man and the tubercular man have been told for 12 years that they did not need to adduce and offer a set of evidentiary circumstances, and now after 12 years, lulled into that position by the Government, they are told that now even though 12 years have intervened they must produce that evidence.

We could cite to you numerous cases, and every one will admit they exist, where doctors have died in the interim who could have adduced the testimony and evidence necessary to even comply with the technical requirements of the Administration as to direct service connection.

Now the man is placed in a position where the Government tells him they have reversed their attitude; that he has now, 12 years afterward, to produce that evidence; and many a case of unfairness is bound to result in those circumstances.

Senator HALE. I think the board in my State did pretty good work. There are certain men that were put on whom I recommended and the Legion recommended.

Mr. HAYES. We cast no aspersion upon any of the individual members of the board.

Senator HALE. The Bureau would have the benefit of the records of the board?

Mr. HAYES. Oh, yes, sir. Those hearings, I understand, have been recorded. I am not positive of that. But certainly the record in any individual case which has been considered by a special board should be available, which record could be used to determine whether or not the Government could show that a man's condition was not due to his service; and it ought to be a simple administrative problem in ridding the rolls of those cases which I conceive are the only ones that anyone ever wanted taken off the presumptive roll. I may be in error about that, but I am honest in my conclusion that no one wanted any man taken off if there was any doubt of any kind that his condition was attributable to his service.

Senator REED. Is not that substantially what the President said in his speech to the Legion last year?

Mr. HAYES. Of course, the technical expression was not made applicable to this subject that we are discussing here. As I recall it, the President said that there was plenty of money to take care of the men who were actually disabled by reason of their service and that to do that would not place the figures of the country in the red. I believe those were his words.

The CHAIRMAN. What effect would it have if we were to require by statute that the appeal board here in Washington is to consider the cases of men appealing rather than appeals by the Government?

Senator STEIWER. It would be a most wholesome thing, Senator. The CHAIRMAN. What I had in mind, Senator, was to avoid a practical abrogation of all the work that has been done and a negation of all the decisions reached.

Senator STEIWER. I think, independently of this legislation that Mr. Hayes is supporting, it might be entirely in order for Congress to direct the Veterans' Administration to continue first the appeals of those denied service connection, because I understand the law is not retroactive. This system of first considering those to whom direct connection is allowed and removing them from the rolls and ultimately at some future time considering those to whom direct connection is denied is going to result in injustice to all those whose rightsThe CHAIRMAN. I would reverse the process.

Senator STEIWER. As a matter of fairness?

The CHAIRMAN. Yes.

Senator STEIWER. It ought not to be necessary for Congress to legislate for a thing of that kind. I should think the Veterans' Administration would do it out of a decent regard for the rights of crippled men.

Senator MCCARRAN. As regards the reviewing board here in Washington, they probably act as a supreme court and have before them only the record as made by the board below?

Mr. HAYES. Yes, sir; and those of us who are lawyers will quite understand that when the instructions are as they are, that the man must set down the specific basis upon which he presents his appeal and that that basis, and that only, is the one to be given consideration-we who are lawyers will immediately infer that it will necessitate the utilization of some technical mind in each of those instances in order to help the men prepare that sort of presentation, other than the voluntary assistance of the American Legion and the other service organizations; and being in a rather high official position I can say that too many of our own men do not know those things.

The CHAIRMAN. Is not that true, Mr. Hayes, of the primary action before the board of review?

Mr. HAYES. Yes, sir; it is true in each of the proceedings.
The CHAIRMAN. That cannot be avoided.

Mr. HAYES. It applies to these presumptive cases, and they have been on the rolls for so many years, and there is nothing in many of the instances for the special board to do except to take out a musty file which has been there in the records of the Veterans' Administration during those years, in so many instances, and look back to see whether that man did something back there 12 years ago which the Government at that time had told him he did not need to do.

It seems to us that they were asked to do an impossible task, and I have stated that and have found acquiescence on the part of well

intentioned members of the special board when I made that statement to them. They frankly admitted to me, in various regions which I have visited in the last few weeks, that they were, in their own opinion, assigned an impossible task. They certainly wanted to do what you men want to do and what every one wants to do—the fair thing toward those people.

The diversity of results and I do not want to take up too much of your time is rather graphic. For instance, in Pennsylvania 44.03 was the percentage of allowances in the regional office. In Richmond, Va., the percentage of allowances was 29.49. The average percentage of allowances over the country was 42.50. In North Carolina, which is right next door, the percentage of allowances was 74.68.

Senator REED. Twenty-nine in Virginia and seventy-four in North Carolina?

Mr. HAYES. Yes, sir.

Senator CUTTING. How many in your own State, Mr. Hayes?

Mr. HAYES. 23.70. We had such a tremendous volume of cases that we could not get them in. Personal appearances were lacking. There were thousands in the short 2 or 3 months which they had in which to adduce any testimony.

Senator REED. What State is that?

Mr. HAYES. Illinois. There are the same results relatively in each of the large cities. In New York the percentage was 36.12 of allowances out of a total of 4,039 cases. Pittsburgh was 24.83, and Philadelphia was 44.03.

Senator REED. And the conditions were identical?

Mr. HAYES. Twenty percent difference in the percentage of allowances; that is, a total of 20 percent. The President asked me about that, and I told him my reasons for feeling that the results, were terrible, in my judgment, and he was concerned and I am sure he is concerned about it. I told him that in Alabama in the early days they were throwing off all but about 17 percent-this was early in the consideration-and in New Hampshire they were retaining 97 percent of all the cases.

At that time instructions from Washington to the boards were sent out and some men were sent from here into the regional offices; and we of the Legion have, without intending to be venomous at all, criticized some of the instructions that were sent out to those supposed to be jurors who were to consider these cases.

Senator STEIWER. Were those instructions published or delivered verbally by the agents of the Veterans Administration?

Mr. HAYES. Some of them were published, Senator, and some were delivered verbally. Of course those are hearsay; I do not mean those. I saw a copy of one letter which emanated from the Washington office. I do not have any desire to criticize any individual at all, but that letter directed that they should cut down on the number of personal appearances before those boards.

Senator STEIWER. Did it assign a reason why the appearances should be reduced?

Mr. HAYES. No. That, to my mind, was defeating the very purpose of the constitution of these boards, and we of the Legion naturally resented it. We did not like that sort of action.

Senator CUTTING. May I ask the witness a question?