And it has functioned so splendidly over the years that the ABA has a bill in to convert it to a full-dress article III court. They deserve it. There is great satisfaction with it. And every time we hear about the problems that arise-one of the great problems is expertise, for example. Do the administrators have expertise? Maybe they do at the Veterans' Administration, but in the SEC veterans shift after 1 or 2 years of service, and in the Tax Court they stay 20 years. I ask you: Who is the more expert? So a court has a lot to commend it, with reasonable tenure. And the Tax Court, of course, is large. I think they have got 15 or 16 judges, and they do not employ commissioners. My own preference, because of your volume of cases here, would be to have a court of about 7 judges with about 50 commissioners. It will shrink. Mr. ADAIR. How many commissioners did you say? Fifty, or fifteen? Mr. BERGER. Fifty. Congressman Devine recommended 50. Mind you, Mr. Congressman, we are all shooting in the dark here, because there is a tremendous group of cases at the outset, and there is only one way to deal with the problem to break the back of it-put some men to work on it. And even when you add up the salaries, as against the whole problem, that really is not too important. But you may find that after a year you will not need that many. Mr. SAYLOR. Well, very frankly, again going back to our English background and precedent, the English went through just that experience. They appointed quite a number. And, as the caseload diminished, then they came to what they called the signpost cases. And, as they determined these signpost cases by the tribunal, the veterans cases began to fall into these various categories. And very shortly, the number of field examiners which they had were reduced, until now the number is quite small. Mr. BERGER. I may say, Mr. Congressman, out of my own experience in various fields of Government, I am confident that history will repeat itself in that respect here, too. Mr. SAYLOR. That is all. Mr. MITCHELL. Any questions by counsel? Mr. DOWNER. I know Mr. Berger is in a hurry. I think it might be helpful if he would bring out just one point. He has expressed his view as to the necessity of preserving the administrative procedures. And I wonder if you could comment just briefly on whether or not it would be advisable to require findings of fact and conclusions of law to be made and separately stated within the administrative adjudication process. Mr. BERGER. I would say no; because as soon as you do that, you are starting to formalize it. And we should recognize and I am not a student of veterans affairs, but I am impressed by the fact that, of several million claims, 94 percent of them were resolved to the satisfaction of the claimant. That is a magnificent achievement. And I would say that machinery that accomplishes that deserves to be conserved and may even get statutory sanction to the extent that it needs it. That would be my feeling, sir. Mr. SAYLOR. Mr. Berger, did I understand you correctly to say that if, as, and when this committee decides to write a piece of legislation, you would volunteer your services to assist the staff in drafting such legislation? Mr. BERGER. I am confident that I could not bring nearly the skill that your skilled counsel and Congressman Devine already have exhibited, but if I can be of any help as a sounding board or in bringing competent suggestion from other areas, I will be happy. Do not hestitate to call on me, gentlemen. Mr. MITCHELL. Thank you again, Mr. Berger. Anything further, gentlemen? Mr. SAYLOR. Mr. Chairman, when the representatives of the Veterans' Administration come up here on Wednesday, I would like to have them bring with them their records of the past 10 years, cases which have been before their Board of Veterans Appeals. Mr. MITCHELL. You are talking about the numerical figures? Mr. MITCHELL. The Veterans' Administration will be here on Thursday, rather than tomorrow. If there is no further business, the subcommittee will stand in recess until 10 in the morning. (Whereupon, at 11:50 a.m., the subcommittee recessed, to reconvene at 10 a.m., Wednesday, April 6, 1960.) JUDICIAL REVIEW OF VETERANS' CLAIMS WEDNESDAY, APRIL 6, 1960 HOUSE OF REPRESENTATIVES, SPECIAL SUBCOMMITTEE ON PENDING JUDICIAL REVIEW Washington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 356, Old House Office Building, Hon. James M. Quigley, acting chairman of the subcommittee, presiding. Mr. QUIGLEY. The subcommittee will please come to order. Unfortunately, Mr. Mitchell, the chairman of the subcommittee, has been detained with an injury this morning, and in his absence I will call the meeting to order, and our first witness will be the national commander of the Disabled American Veterans, and, Commander Fribley, if you will come forward and bring with you any of your aids or staff that you wish to accompany you. STATEMENTS OF BILL H. FRIBLEY, NATIONAL COMMANDER, DISABLED AMERICAN VETERANS; ELMER M. FREUDENBERGER, ACTING NATIONAL DIRECTOR OF LEGISLATION, DISABLED AMERICAN VETERANS; AND CHESTER A. CASH, ACTING NATIONAL DIRECTOR OF CLAIMS, DISABLED AMERICAN VETERANS Mr. FRIBLEY. Mr. Chairman. I am Bill H. Fribley, national commander, Disabled American Veterans, and with me are Elmer M. Freudenberger, acting national director of legislation, and Chester A. Cash, acting national director of claims. It is a pleasure to come before you today to discuss the pending bills, and especially the DAV proposal, H.R. 9591, that have as a common purpose the establishment of machinery that will permit veterans who are dissatisfied with final decisions rendered by the Veterans' Administration to obtain reviews and disposition of the issues involved by a higher tribunal. Section 211, title 38, United States Code, under subparagraph (a) reads as follows: (a) Except as provided in sections 784, 1661, 1761, and as to matters arising under the chapter 37 of this title, the decisions of the Administrator 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 any court of the United States shall have power or jurisdiction to review any such decision. The exceptions cited in section 211 (a) relate to section 784 suits on insurance; section 1661 and section 1761-right of the General Accounting Office to review and audit certain payments of the Veterans' Administration; and, matters under chapter 37, title 38, United States Code, on the subjects of home, farm, and business loans. Insofar as VA decisions on compensation and pension claims, among others, are concerned, the disposition made of an appellate issue by the VA Board of Veterans Appeals is the final and absolute word in the case under the authority delegated to that Board by the Administrator of Veterans' Affairs. The members of the VA Board of Veterans Appeals, including the Chairman and Vice Chairman, are appointed by the Administrator with the approval of the President. Sections 4001-4008 of title 38, United States Code, relate to the composition, operations, and finality of decisions of the Board of Veterans Appeals. In Resolution 220, adopted by the 1959 National Convention of the Disabled American Veterans, the protest was made that the VA too frequently adhered strictly to the letter of existing rules and regulations in the adjudication of claims rather than basing the decisions upon the merits or the justice of the case. Resolution 220 then proposed that there be established a court of justice, composed of impartial civilians not affiliated with the VA, the military, or General Accounting Office, and that the President appoint by and with the consent of the Senate, a chief judge and four associate judges who shall constitute a court of record and be known as the U.S. Court of Veterans Appeals. Our bill, H.R. 9591, is based upon that national convention resolution. The VA has issued rating instructions from time to time which, if followed closely in all instances by its hundreds of rating specialists throughout the Nation, would have gone far in dispelling doubt and uncertainty in the minds of many veterans and their representatives. For example, the long-existing definition of resolving reasonable doubt in favor of claimants is probably about as good a directive as could be evolved on such a general subject. This VA definition, found on page 1 of the schedule for rating disabilities, reads as follows: By reasonable doubt is meant one which exists by reason of the fact that the evidence does not satisfactorily prove or disprove the claim, yet a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind, that his claim is wellgrounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not a justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions and is consistent with the probable results of such known hardships. With a total of approximately 800 rating specialists in the service of the VA comprising medical and nonmedical personnel with diversified backgrounds and varying degrees of abilities and attitudes, with authority to exercise independent judgment toward claims within the framework of the controlling veterans laws and governing VA instructions and regulations, and with traveling supervision of these 67 farflung regional offices and other installations having adjudication activities largely concentrating on time studies and work measurement instead of upon the technical aspects of the work, is it any wonder |