The Veterans' Administration is organized and its procedures are designed with the view of providing a system of adjudication which insures the assembling of all available evidence pertaining to each claim and a most careful consideration of the entire file. The system is designed to accomplish this with as little inconvenience to the claimant as is consistent with the interests of the Government and himself. Adjudications of claims of veterans and their dependents are not considered as adversary proceedings with the claimant on one side and the Government on the other. On the contrary, in the adjudication of claims the Veterans' Administration is as much concerned to see that every claimant receives the benefits to which he is entitled as to exclude those not entitled. To this end, the Veterans' Administration employs facilities and personnel for the sole purpose of aiding claimants by counsel as to their rights and in securing and assembling evidence in their behalf and presenting it to those charged with adjudication. The procedures for reconsideration by the rating boards and for review by the Board of Veterans' Appeals are liberal-more liberal than would be those of courts generally..

There is for consideration the added expense to the Government not only with respect to the added burden upon the courts, but the administrative expense of defending the suits. The Veterans' Administration could not spare personnel for such purpose. The Veterans' Administration is not informed as to the adequacy of appropriations to enable the Department of Justice to make the necessary investigations, to prepare the cases for trial, and to defend the interests of the United States. No worthwhile estimate of such cost is possible. It is not certain there would be any additional cost as to benefits granted unless it may be presumed courts and juries would be more liberal than the Veterans' Administration. Principal recourse to the courts doubtless would be sought for the purpose of attempting to set aside decisions of the Administrator on questions of law, thus removing such matters from the executive to the judicial department of the Government.

Under the circumstances, I recommend that the proposed legislation be not favorably considered by your committee.

Advice has been received from the Bureau of the Budget that there would be no objection to the submission of this report to the committee.

Sincerely yours,

A BILL To provide for determination through judicial proceedings of claims for compensation on account of disability or death resulting from disease or injury incurred or aggravated in line of duty while serving in the active military or naval service, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, except as provided in this Act, section 19 of the World War Veterans' Act, 1924, as amended (38 U. S. C., sec. 445), section 617 of the National Service Life Insurance Act of 1940, as amended (38 U. S. C., sec. 817), and subsection (a) of section 261 of the Veterans' Readjustment Assistance Act of 1952 (38 U. S. C., sec. 971), the decisions of the Administrator of Veterans' Affairs on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans' Administration shall be final and conclusive and no other official or court of the United States shall have power or jurisdiction to review by mandamus or otherwise any such decision.

SEC. 2. In the event of a disagreement with respect to any claim for compensation under any law administered by the Veterans' Administration on account of disability or death of an individual resulting from disease or injury incurred or aggravated in line of duty while serving in the active military or naval service, an action on the claim may be brought against the United States either in the United States District Court for the District of Columbia or in the United States district court for the district in which the claimant or any one of several claimants resides, and jurisdiction is hereby conferred upon such courts to hear and determine all such controversies. The procedure in such actions shall be the same as in actions brought pursuant to section 19 of the World War Veterans' Act, 1924, as amended (38 U. S. C., sec. 445). All persons having or claiming to have an interest in such claim may be made parties to such action, and such as are not

residents of or found within the district in which such action is brought may be made parties pursuant to order of the court by personal service of process or by publication or in such other reasonable manner as the court may direct.

SEC. 3. The courts of appeal and the United States Court of Appeals for the District of Columbia shall, respectively, exercise appellate jurisdiction with respect to actions brought under this Act and, except as provided in section 1254 of title 28 of the United States Code, the judgments of the courts of appeal and the United States Court of Appeals for the District of Columbia shall be final.

SEC. 4. No action on any claim may be brought under this Act unless it shall have been instituted within two years from the date of the mailing of notice by the Administrator of Veterans' Affairs of his determination with respect to such claim or within two years after the date of enactment of this Act, whichever date is the later. Infants, insane persons, or persons under other legal disability, or persons rated as incompetent or insane by the Veterans' Administration shall have two years in which to bring action after the removal of their disabilities. If an action is seasonably begun and fails for defect in process, or for other reasons not affecting the merits, a new action, if one lies, may be brought within one year though the period of limitations has elapsed.

SEC. 5. The provisions of section 19 of the World War Veterans' Act, 1924, as amended (38 U. S. C., sec. 445), which relate to the subpenaing of witnesses, the expenses of attorneys of the Veterans' Administration, and the fees, expenses, and leaves of absence of other employees of the Administration subpenaed as witnesses in connection with actions under such section 19, shall be applicable to actions brought under this Act.

SEC. 6. Notwithstanding the provisions of the Act entitled "An Act to provide that the unexplained absence of any individual for seven years shall be deemed sufficient evidence of death for the purpose of laws administered by the Veterans' Administration", approved June 5, 1942 (38 U. S. C., sec. 445), a finding of death made by the Administrator of Veterans' Affairs shall not be final and conclusive in an action brought under this Act.

SEC. 7. (a) Section 5 of the Act entitled "An Act to maintain the credit of the United States Government", approved March 20, 1933, as amended (38 U. S. C., sec. 705), is hereby repealed.

sec.

(b) Section 5 of the World War Veterans' Act, 1924, as amended (38 U. S. C., 428), is amended by striking out "; and all decisions of questions of fact and law affecting any claimant to the benefits of titles II, III, or IV of this Act shall be conclusive except as otherwise provided herein".

(c) Section 11 of the Act entitled "An Act to amend section 202 (3), World War Veterans' Act, 1924, as amended to provide more adequate and uniform administrative provisions in veterans' laws, and for other purposes", approved October 17, 1940 (38 U. S. C., sec. 11a-2), is hereby repealed.

SEC. 8. Wherever a judgment or decree shall be rendered in an action brought pursuant to this Act, the court, as part of its judgment or decree, shall determine and allow reasonable fees for the attorneys of the successful claimant or claimants and apportion same, if proper, said fees to be paid by the Administrator of Veterans' Affairs out of the payments to be made under the judgment or decree. Any person who shall, directly or indirectly, solicit, contract for, charge, or receive, or who shall attempt to solicit, contract for, charge, or receive any fee or compensation, except as provided in this section, shall be punished by a fine of not more than $500 or by imprisonment at hard labor for not more than two years, or both.

[H. R. 2029, 84th Cong., 1st sess.]

A BILL To amend the Act of July 2, 1948 (Public Law 877, Eightieth Congress), to include persons whose service-connected disability is rated not less than 10 per centum

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the compensation now payable under the Act of July 2, 1948 (Public Law 877, Eightieth Congress), for certain veterans with service-connected disabilities who have dependents, as amended, be further amended to include persons whose service-connected disability is rated not less than 10 per centum.

This Act shall take effect on the first day of the second calendar month next succeeding its enactment.

75181-56--2

VETERANS' ADMINISTRATION,

OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
Washington 25, D. C., February 10, 1955.

Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,

House of Representatives, Washington 25, D. C.

DEAR MR. TEAGUE: Reference is made to your letter of January 28, 1955, requesting a report by the Veterans' Administration on H. R. 2634, 84th Congress, a bill to provide equal pension or compensation benefits to all veterans disabled in the military service, and for other purposes.

The purpose of the bill is to eliminate distinction between the rates of compensation payable for wartime and peacetime service; to entitle nurses and civilian employees in the Army, Navy, or Air Force, and their dependents, to veterans' benefits; to provide a presumption of soundness for all persons in active service for 6 or more months except for defects noted or where there is clear and unmistakable evidences to show an unsound condition prior to enlistment; to prescribe rules of evidence binding on administrative officials, judges, and juries; to prescribe a new rule on the weight of evidence which would require proof of the negative by an abundance of clear and unmistakable evidence; to make the statements of a private physician or two lay witnesses sufficient proof of service connection except where such evidence is refuted by clear and unmistakable evidence; to authorize retroactive payments of compensation and pension from the date of discharge or from the date when the testimony of two or more witnesses shows that disability existed to such a noticeable degree that it should have been a matter of record; to authorize upon application the reopening of any claim previously filed and rejected for reconsideration in harmony with the provisions of the bill; to authorize a claimant and his attorney to inspect the file and records and to copy the evidence in the file; to authorize suit in the district court of the United States wherein the claimant or his attorney resides, or in an adjoining district, if dissatified with the final decision of the Board of Veterans' Appeals; to provide such suit may be tried by a jury; to make the judgment of the court final and binding on both the claimant and the defendant except where obvious error is shown or new and material evidence is secured; to provide that the Veterans' Administration shall pay the attorney's fee in such amount as the court deems reasonable, if the plaintiff is successful, and also to pay an attorney's fee to plaintiff's attorney in cases in which the plaintiff is unsuccessful if, in the court's opinion, there was reasonable and probable cause for bringing suit and the claimant's attorney had good cause to believe in the merits of the claim: and to provide that where the provisions of the bill and any prior act are in conflict, the provisions of the bill shall be the rule of law and procedure.

H. R. 2634 is identical with H. R. 7783, 83d Congress, on which a report was furnished to your Committee by the Veterans' Administration on March 29, 1954 (Committee Print No. 224), a copy of which is enclosed. The report on H. R. 7783 is equally applicable to the present bill.

Advice has been received from the Bureau of the Budget that there would be no objection to the submission of this report to your committee. Sincerely yours,

JOHN S. PATTERSON,
For H. V. HIGLEY,

Administrator. trator.

VETERANS' ADMINISTRATION,

OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
Washington 25, D. C., March 29, 1954.

Hon. EDITH NOURSE ROGERS,

Chairman, Committee on Veterans' Affairs,

House of Representatives, Washington 25, D. C.

DEAR MRS. ROGERS: This is in reply to your request for a report on H. R. 7783, 83d Congress, a bill to provide equal pension or compensation benefits to all veterans disabled in the military service, and for other purposes.

The purpose of the bill is to eliminate distinction between the rates of compensation payable for wartime and peacetime service; to entitle nurses and civilian employees in the Army, Navy, or Air Force, and their dependents, to veterans' benefits; to provide a presumption of soundness for all persons in active service for 6 or more months except for defects noted or where there is clear and unmistakable evidence to show an unsound condition prior to enlistment; to prescribe

rules of evidence binding on administrative officials, judges, and juries; to prescribe a new rule on the weight of evidence which would require proof of the negative by an abundance of clear and unmistakable evidence; to make the statements of a private physician or two lay witnesses sufficient proof of service connection except where such evidence is refuted by clear and unmistakable evidence; to authorize retroactive payments of compensation and pension from the date of discharge or from the date when the testimony of two or more witnesses shows that disability existed to such a noticeable degree that it should have been a matter of record; to authorize upon application the reopening of any claim previously filed and rejected for reconsideration in harmony with the provisions of the bill; to authorize a claimant and his attorney to inspect the file and records and to copy the evidence in the file; to authorize suit in the district court of the United States wherein the claimant or his attorney resides, or in an adjoining district, if dissatisfied with the final decision of the Board of Veterans' Appeals; to provide such suit may be tried by a jury; to make the judgment of the court final and binding on both the claimant and the defendant except where obvious error is shown or new and material evidence is secured; to provide that the Veterans' Administration shall pay the attorney's fee in such amount as the court deems reasonable, if the plaintiff is successful, and also to pay an attorney's fee to plaintiff's attorney in cases in which the plaintiff is unsuccessful if, in the court's opinion, there was reasonable and probable cause for bringing suit and the claimant's attorney had good cause to believe in the merits of the claim; and to provide that where the provisions of the bill and any prior act are in conflict, the provisions of the bill shall be the rule of law and procedure. Comments on the mentioned purposes are contained in the sections of the bill under which such purposes are proposed.

Section 2 of the bill provides that any person who served in the military forces of the United States in the Army, Navy, or Air Force (or as a nurse or civilian employee), who is suffering from any disability which is attributable to such service, shall be eligible to receive the same and equal monetary benefits as pension or compensation as are now provided for veterans of the world wars and with the same and equal benefits to their dependents. Under this section all veterans and their dependents would be entitled to compensation at wartime rates even though the veteran served in time of peace only. This would be a departure from the long-established policy of the Congress to provide compensation at a greater rate for disability or death incurred in active service during a period of war than is provided for similar disability or death incurred during service in time of peace. It would establish a new policy by granting peacetime veterans and nurses and civilian employees in the Army, Navy, or Air Force the same compensation and pension benefits as are provided for veterans who served in the world wars. Civilservice employees of the Army, Navy, or Air Force are presently eligible to benefits for disabilities incurred in Federal civilian employment under laws administered by the Bureau of Employees' Compensation. The bill makes no provision for nonpayment of concurrent benefits to civilian employees by the Bureau of Employees' Compensation and the Veterans' Administration.

Section 3 of the bill provides that all persons in service for 6 months or more shall be presumed to have been in a sound condition at enlistment, except for defects noted or where there is clear and unmistakable evidence to show an unsound condition existed prior to enlistment; that two or more medical statements designating the diagnosis and medical opinion as to causative origin and stating whether the disability is reasonably attributable to military service shall be deemed sufficient evidence to establish the eligibility of the claim except where such proof is refuted by an abundance of clear and unmistakable evidence showing the facts to be otherwise; that the lay evidence of two or more witnesses shall be sufficient to show service connection of any disability except where such evidence is refuted by clear and unmistakable evidence; and that any issue or point of evidence in controversy that is in doubt shall be resolved in favor of the claimant. This section would require the Veterans' Administration to prove the negative of any fact based on medical or lay testimony offered in behalf of a claimant. Such proof could rarely, if ever, be obtained. This would require a finding of service connection which in many instances would be contrary to medical experiences and contrary to matters of common knowledge.

Section 4 of the bill would provide that when a claim is allowed, the claimant shall be entitled to an award retroactive to the date of discharge if the record shows a line-of-duty status for the injury or sickness claimed as the causative factor and that any disability of any kind existed at the date of discharge or the testimony of two or more witnesses shows that the disability existed to such a

noticeable degree that it should have been made a matter of record. This section would require payment of disability compensation or pension from the date of the veteran's discharge from service, regardless of the length of time that may have intervened between the date of discharge and the filing of the claim. Although many years may have elapsed between the date of discharge and the date of filing claim, the Veterans' Administration would be required to pay benefits based solely upon the testimony of a private physician or two lay witnesses in the absence of clear and convincing evidence showing the facts to be otherwise.

Section 5 provides that any claim previously filed and rejected shall upon the filing of an application be renewed and reopened for new consideration in harmony with the provisions of the bill; that reopened claims shall first be reconsidered in the regional facilities of the Veterans' Administration; and that the claimant and his attorney shall have reasonable opportunity to inspect the file and records. In some instances the information in file might have deleterious effect on the veteran's health or mental condition and in other instances would require disclosure of information given to field examiners or otherwise with an assurance that such information would be considered confidential or privileged.

Section 6 provides that a claimant dissatisfied with the final decision of the Board of Veterans' Appeals may file an application for judicial review in the district court of the United States in the district wherein the claimant or his attorney resides, or in an adjoining district, and that the claimant shall have the right of jury trial; that the court shall determine any issue in controversy and give the claimant the benefit of any reasonable doubt; that the judgment of the court shall be final and binding on both parties and may not be reopened or reconsidered except where obvious error is shown or upon new and material evidence; that if the claimant is successful his attorney shall be entitled to a reasonable attorney's fee to be fixed by the court and paid by the Veterans' Administration in addition to the amount provided in the judgment for the claimant; that if the claimant is unsuccessful, but in the court's opinion there was reasonable and probable cause for bringing suit and the plaintiff's attorney had good cause to believe in the merits of the claim, the court may allow an attorney's fee in the same amount as if the judgment had been favorable to the claimant, such attorney's fee to be paid by the Veterans' Administration. The bill does not specify whether the proposed suit shall be brought against the Veterans' Administration or the United States, but presumably such suit would be brought against the United States. The authorization of suit against the United States on claims for pension, compensation, or other gratuity would be a departure from the long-established policy of the Congress. Such suits would impose upon the courts and juries the duty of determining many medical and technical questions concerning which they would have no personal knowledge or experience. As to the unsuitability of courts to adjudicate claims for compensation, see Armstrong v. United States (16 Fed. 2d 387, 389). This section would make the Government liable for payment of an attorney's fee to the claimant's attorney whether the claimant won or lost his suit. The justification for such proposal is not apparent.

It should be noted that the provisions of lines 20 and 21, page 4 of the bill, would lead to endless litigation. Court review is generally before the court without a jury in accordance with the provisions of section 10 of the Administrative Procedure Act. The bill, however, states that a claimant shall have a right to jury trial, which appears to contemplate the same procedure as in any suit which is brought de novo.

Section 7 provides that when the provisions of the bill and any prior act conflict, the provisions of the bill shall be the rule of law and procedure. The provisions of this section would make inapplicable all statutes of limitation and most, if not all, of the laws of evidence.

The provisions of the bill are so sweeping and novel as to make any worthwhile estimate of its cost impracticable. The proposal to authorize payment of benefits retroactive to the date of discharge without reference to the period when service was rendered or the date when claim was filed would involve retroactive payments over long periods of time and would require, in many instances, payments of exceedingly large amounts of money which in the aggregate would total many millions of dollars. The investigations involved in such cases and the administrative costs of adjudicating such claims would be enormous.

The Veterans' Administration strongly recommends against favorable consideration of the bill by your committee.

Advice has been received from the Bureau of the Budget that there would be no objection by that office to the submission of this report to your committee.

Sincerely yours,

H. V. Higley, Administrator.