Mr. MITCHELL. We have scheduled for appearance this morning on the pending bills, and on the general philosophy of the idea of the creation of a Court of Veterans' Appeals, the gentleman from Ohio, Mr. Devine, whom we will be privileged to hear first.

It is certainly our pleasure to have you with us this morning.

STATEMENT OF HON. SAMUEL L. DEVINE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO; ACCOMPANIED BY GEORGE R. WOLFE, LEGISLATIVE AID

Mr. DEVINE. Thank you, Mr. Chairman.

The gentleman at my right is Mr. George Wolfe, who is my legislative aid, office manager, and when I was prosecuting attorney, back in Columbus, Ohio, he was my grand jury man. He is an attorney and has done a great deal of work in the preparation of this legislation.

Mr. Chairman and Mr. Saylor, my name is Samuel L. Devine, and I represent approximately three-quarters of a million people in the 12th District of Ohio.

My office has received a number of cases involving veterans' benefits, which I assume is typical of most congressional offices. Almost without exception, I received these cases after the Board of Veterans' Appeals had rendered its opinion, and in deserving cases it has become the practice to request a rehearing.

The Veterans' Administration has been very cooperative, promptly supplied me with reports, and granted my requests for rehearings. The results of the rehearings emphasized the reliance by the Board on such phrases as "clear and convincingly" and "well recognized and generally accepted medical principles."

As a lawyer, I tried to analyze the basis for the findings and soon recognized the discrepancy between the rules of evidence with which I am familiar, as a lawyer, as opposed to the evidence used by the Veterans' Administration in arriving at its decisions.

As a result, I concluded that some independent judicial review may be desirable in certain cases, and, accordingly, introduced H.R. 9632, which is one of the bills before this honorable subcommittee today.

If my office is typical-and I think it is then the Veterans' Administration must receive a great many congressional inquiries and must reconsider many cases. I have been informed of some cases having had as many as six reviews by the Board of Appeals.

This led me to consider other problems, both of the Veterans' Administration and of our office. For example, the Administrator is the "court of last resort" in deciding these cases. This results in administrative processes being reconsidered by the same agency that rendered the initial decision.

A substantial volume of correspondence and detail can be removed from congressional offices by providing for an independent judicial review with the possibility of a reconsideration of the evidence.

During my discussions and correspondence with the Veterans' Administration, I was informed that over the last 10 years the Board of Appeals decided an average of 47,000 cases per year. This is an amazing caseload-even more so when you average the cases per day. The Board consists of 37 members, and if composed of 12 threemember Boards, 47,000 cases per year would require each Board to

decide over 16 cases per day. And assuming they worked on an 8-hour day, that is a case every half hour every working day of the year.

I recognize that we see only the worst of the many cases the Veterans' Administration handles; that this organization does a fine job in an overwhelming majority of the cases. I commend them for this. However, any organization composed of human beings is subject to mistakes in judgment. I also feel the number of appeals will increase in the coming years since the veterans of World War II are approaching ages when compensation and pensions will be claimed more often, and the recently passed pension bill with its administrative directive concerning net worth will cause some controversy and of course increase the caseload.

In drafting H.R. 9632, I used the U.S. Court of Military Appeals, the U.S. Court of Claims, and the U.S. district courts of appeals as guides in establishing this proposed court. A brief analysis of the bill, section by section may help in explaining my thoughts and conclusions.

The first section establishing the court provides for a three-judge court, appointment of judges, compensation, and location of the court. This section also provides for the court to make its own rules of procedure, inherent in any court.

I have suggested three judges and their compensation, using the Court of Military Appeals as a guide. I have suggested that the court be located in the Veterans' Administration as a matter of expediency. Since their jurisdiction would be confined to veterans' cases, the files, personnel, and information would be available more readily if the court were located there. The term of each judge, appointment and removal, and reports are standard provisions; but I am willing to rely on the wisdom of this committee in this regard. They appear to me to be the most logical.

Section 4052 of the bill was patterned after the jurisdiction section of the Court of Claims. Specific provisions in subparagraph (a) refer to the present law providing judicial remedies for cases involving insurance and loans. You will note the court has concurrent jurisdiction of these two subjects, as well as exclusive jurisdiction over other veterans' matters. I have purposely included this provision to give the court jurisdiction over all Board of Appeal cases.

Under paragraph (2), provision is made for a reopening of a case that has been denied by this court upon the production of new evidence in the nature of official reports from the proper service department. This is a clause granting rights to veterans whose appeals have been denied, but only in those cases involving material evidence from official files. This will make the court determination final, except in rare instances involving lost or misplaced records.

Section 4053 provides for the method of filing an appeal and the time limit for such action. I contemplate a normal notice of appeal, indicating the reason for appeal and the grounds upon which the appeal is based. This petition properly served will be sufficient for the Administrator to certify a copy of the record of the proceedings before the Board of Appeals. This section may present problems since in some cases there may not be a record taken. In these cases I would anticipate that the veteran's claim file be transmitted to the court as "the record."

The next several paragraphs are part of the crux of the bill. They will be discussed in connection with section 4062-Commissioners The best way to explain these sections is to describe how I think the court should operate.

When a notice of appeal is filed with the court and the record is received from the Veterans' Administration, the court should then decide whether it will entertain the appeal. This can be done by a court review or by assigning the case to a Commissioner to determine whether there are grounds for such appeal. This will enable the court to screen the cases as there may be some "crackpot" cases in the Veterans' Adminstration-and I think all of us in the Congress have received our share of those. These can usually be recognized early and without too much difficulty.

Assuming the court does decide to admit the appeal, then a decision must be reached as to the evidence in the case. It is apparent that it is difficult to make a judicial review of a nonjudicial proceeding. Bearing in mind the premise that the court generally does not substitute its discretion for the discretion of an administrative agency, a provision must be made to reconcile these problems. I have attempted to do this by providing for and describing the duties of Commissioners. It would be unwieldy and unworkable to provide for testimony before the court. However, since evidence considered by the Administrator may not be legally competent evidence or opinion evidence of experts subject to qualification, with no right of cross examination, some provision for accepting, screening, or qualifying this evidence should be made.

I have suggested a Commissioner do this screening. His report then to the court would present the facts and evidence in legal perspective for the court to hear and consider arguments. Attorneys naturally would argue the law before the court, but service officers and attorneys could request appearances and submit evidence to the Commissioner. It would be the duty of the Commissioner to secure the testimony and report it in the light of qualified, acceptable evidence under the general rules of evidence.

When this report is submitted and tthe court has heard the arguments, then it shall apply the test as described in subparagraph (c). Considerable thought was given to the test to be applied and I have suggested "a prepondance of the evidence."

My reasoning on this test is as follows: The present law makes a provision for certain presumptions to be given to veterans. These presumptions are overcome when "clear and unmistakable" evidence to the contrary is apparent. The nearest legal test to "clear and unmistakable" is, in my mind, a preponderance of the evidence. Similarly, when the phrase "well recognized and generally accepted medical principles" is used, the general test of preponderance seems like the most appropriate.

I recognize that this procedure has certain characteristics of a trial de novo, but it is the only manner in which a record having some evidence subject to a judicial review can be accumulated. There fore, the court, reviewing this evidence and hearing arguments of law, can then decide whether a preponderance of the evidence supports the Board of Appeals. This, then, is not a substitution of discretion

by the court for the Board of Appeals' judgment, but a review of the evidence based upon legal tests and interpretations.

The remaining sections of the bill dealing with the clerk, fees, stenographers, bailiffs, and compensation of Commissioners, are all suggested procedures for such officers and duties.

There are a number of bills dealing with the subject of judicial review, and many of them follow the theory of referring the appeals from the Board to the appropriate U.S. district court. I do not feel this is the best approach. Statistics on the caseload of various district courts show that many courts are overloaded at present. The dockets of the district courts vary from 6 to 41 months between the filing of the petition and to the date of trial. It is interesting to note that the 12 largest district courts, concentrated in metropolitan areas, aver age 20 months' lag on their dockets. The number of cases that would be involved in veterans' appeals would further add to the already overloaded dockets of district courts. Moreover, the basic problem still exists in having a judicial review of an administrative procedure. Either the district court would be required to have a trial de novo or attempt to apply a judicial test to the nonjudicial proceedings. The alternative, of course, would be for each district court to have special commissioners similar to those outlined in my bill to screen testimony, take the necessary depositions and evidence, and make a report to the court. I feel that a consolidation of all these efforts into one single specified court would be the most expeditious and, of course, of benefit to the veterans.

I have also considered the arguments made by the Veterans' Administration to similar proposals in the past. The position taken by the Veterans' Administration regarding these bills has merit. They have compared previous suggestions to the suits filed against the Government, and have alluded to the proposition that the Government cannot be sued without its consent. This proposition is true and if we accept this analogy, then it is easily corrected by legislation. The Veterans' Administration further discusses the nature of these cases and the fact that they are not adversary proceedings. In this regard, of course, they point to the many facilities and personnel they have for the purpose of assisting the veteran to perfect his claim. Whether they wish to acknowledge this procedure as an adversary proceeding or not, in effect this is what occurs. The decision as to whether a certain set of facts entitles a person to benefits or not produces a controversy. The Veterans' Administration acts as a party and as a judge. În some cases their decision is contested with all the vigor of an adversary proceeding and perhaps an independent reviewing authority can be of benefit.

The dissatisfaction with the administrative agency by a claimant is nothing new, and we are merely providing an independent review court to consider such cases. We, therefore, should provide for established rules for submission of proof and opinions. The generally accepted legal rules of evidence seem the best for this purpose.

One final remark about the Veterans' Administration's position. They have referred to all of the benefits as gratuities, subject to the will of Congress. They cite instances where these have been changed, reduced, and removed. They also suggest that the Congress gave the Veterans' Administration sole jurisdiction to administer and dis

burse these gratuities. This is all true. However, Congress may change the law when it is apparent a change is needed.

And that, Mr. Chairman, concludes my formal statement,

Mr. MITCHELL. Thank you, Mr. Devine.

Does your associate have anything that he would care to add at this point?

Mr. WOLFE. No, sir. Not right now, thank you.

Mr. MITCHELL. Mr. Saylor?

Mr. SAYLOR. Mr. Devine, let me commend you on this statement. think that the experiences which you have enumerated in regard to your dealings with the Veterans' Administration and its Board of Appeals are typical of those experienced by Members of the Congress. I can tell you very sincerely that, having had similar experiences, that is the reason I have taken such a great interest in this matter and the reason why in the last several sessions of Congress I have introduced bills to create a Court of Veterans' Appeals.

I would like to ask you whether or not, in preparing your bill, you have had an opportunity to examine the Pension Appeals Tribunal which the English have used in the handling of veterans' cases. Mr. DEVINE. No, Mr. Saylor, I have not had an opportunity to examine that.

Mr. SAYLOR. Then that makes your statement all the more convincing, because by separate legal analysis you have come to the same conclusion that our allies in England have come to, that the only way to properly handle veterans' cases dealing with veterans' benefits is to provide a court of appeals.

It is interesting to note that in the manual which has been published by the Pensions Appeal Tribunal of England, they went through the same proceedings which we now find ourselves in, having made it an administrative matter within their veterans' group or agency appointed of Government. And they found that while in the first instance it was satisfactory, after a period of time they became so interrelated with their various boards, with so many inconsistent decisions coming out of the various boards, that it was absolutely necessary to create a court to get a line of decision.

Mr. DEVINE. I would ask my colleague if they have been successful under the plan of setting up a court.

Mr. SAYLOR. Under the plan of setting up courts, they have been most successful, because the court has been able to establish certain criteria, and the court has been able to apply those criteria to the case before it, because it is always the same court.

Mr. DEVINE. That is most interesting and gratifying.

Mr. SAYLOR. I am delighted, Mr. Devine, to have your wholehearted support of this proposition, and I know that the other members of the committee join with me in thanking you for the work you have in this matter.

Mr. DEVINE. I thank you for your very complimentary remarks, Mr. Saylor.

Mr. MITCHELL. Mr. Devine, let me join with my good friend from Pennsylvania in commending you on your statement. I know personally of the time and effort and the interest that you have shown in this problem.