The second chart here shows the specialization possible and exemplifies some of the kinds of problems that the Board of Veterans Appeals in its appellate work faces. That is, by the way, included in the material which has been made available to you, Mr. Chairman, under the notation "chart 2." But some of the items are aid and attendance, burial, cardiac disease, conveyances, dental, gynecological work, insurance matters, even getting down to ulcers down here at the bottom. So they have a great variety of matters which they do consider. At this time, with the permission of the chairman, I would like to present for the record a memorandum showing the organization, the workload and other matters pertaining to the operation of the Board, which may be helpful to the subcommittee in its deliberations. Mr. MITCHELL. If there is no objection, it will be filed and made a part of the record. Mr. MORSE. This document has been printed as Committee Print 212, Mr. Downer. (The document referred to follows:) BOARD OF VETERANS APPEALS ORGANIZATION AND OPERATION The present Board of Veterans Appeals was established by Veterans Regulation No. 2(a), promulgated by Executive Order No. 6230, dated July 28, 1933. This enabling legislation has been reenacted as chapter 71, title 38, United States Code. The Board is composed of a Chairman, Vice Chairman, and associate members who are appointed by the Administrator of Veterans' Affairs with the approval of the President. At the present time, there are 34 associate members (24 legal and 10 medical). In addition, the Board's staff consists of 84 consultants (70 legal and 14 medical) and 145 administrative and clerical personnel. A chart on the organization of the Board is appended. The legal and medical staff are selected from the best men available, chiefly from other branches of the Veterans' Administration. The legal and medical consultants relieve the associate members of the majority of research and prepa ration of written decisions which leaves them free to devote full time to the most important phases of their work, the conduct of hearings, evaluation of the evidence, and the promulgation of decisions for which they have full responsibility. While the consultant prepares a tentative draft of a decision or opinion for presentation to the section, each associate member must review the entire file before approving the draft submitted. Associate members reject or modify the tentative decisions in over 30 percent of the cases. All questions on claims involving benefits under the laws administred by the Veterans' Administration are subject to review on appeal. Appeals must be filed within 1 year from the notice of action appealed except in simultaneously contested claims (one claim allowed and one rejected) where the period allowed is 60 days. Appeals are docketed and considered in regular order, but an appeal may be advanced on the docket for sufficient cause. Provision is made for right of hearings and representation. Represention is in most instances by accredited national service organizations chartered by the Congress. However, a number of appellants are represented by attorneys, and frequently representation is by Members of Congress. Hearings may be before a section of the Board of Veterans Appeals in Washington (which then makes the final determination) or before qualified personnel of the field offices acting as a hearing agency for the Board to create a hearing record. In addition, to the extent funds permit, sections of the Board travel to field offices to conduct on-the-spot hearings. The claimant or his authorized representative is privileged to submit argument or testimony either orally or in writing, and witnesses may be heard. While a hearing on appeal is primarily for the purpose of receiving contentions and argument relative to the evidence upon which the decision of the originating agency was predicated, new and material evidence presented at a hearing is accepted for appropriate disposition. Argument and testimony are recorded and transcripts are made for incorporation in the record. Strict judicial rules are not followed and considerable latitude in argumentation is permitted. Opinions, comments, and assertions not related to or material to the question at issue may be excluded. Authority to render final decisions on appeal is vested by statute in the Board of Veterans Appeals, except in claims involving insurance contracts. The unanimous decision of the section constitutes final determination, except that there is authority for the Board on its own motion to correct an obvious error or to reach a contrary conclusion based upon additional official information from the Service Department. In addition, the claim may be reopened upon the submission of new and material evidence. In this instance, the matter is considered a new claim rather than revival of the old. The consideration of the Board of Veterans Appeals is entirely de novo. During fiscal year 1959, the Board decided appeals in 36,302 cases. During the same period, the Board conducted 1,058 formal hearings. There were 3,656 remand decisions for further development of the evidence by agencies of original jurisdiction, subject to return for final determination by the Board in the event of continued denial of benefits appealed for. (An analysis of the decisions of the Board during fiscal year 1959 and a chart showing the workload and personnel of the Board from 1947 through 1959 are appended.) The Board is liberal in granting reconsideration of its decisions, and will generally accept jurisdiction for reconsideration of one of its decisions if there is shown a substantial and sincere belief that the correct conclusion has not been reached. During fiscal year 1959, the Board reconsidered 423 cases of which 41, or 10 percent, were allowed, and 63, or 15 percent, were remanded for further development. The Board operates under published Rules of Practice. A copy is appended. RULES OF PRACTICE-BOARD OF VETERANS APPEALS Approved by the Administrator of Veterans' Affairs, 1950 This pamphlet supersedes the 1946 edition of "Rules of Practice-Board of Veterans Appeals" and is published for the information of claimants, guardians, service organization representatives, attorneys, agents, and other persons engaged in the prosecution of appeals. MEMBERS OF THE BOARD OF VETERANS APPEALS Lawrence R. Pierce, Jr., Vice Chairman Edward L. Arpin Thomas C. Dyar Walter R. Gladding, M.D. Charles K. Holmes, M.D. Donald W. Ingham, M.D. William A. Kehoe Richard J. Lang, M.D. ASSOCIATE MEMBERS Joseph T. Lloyd Herbert F. Lowe Martin L. Minthorn, M.D. Powhatan Moncure William H. Morell Walter T. Neville James R. Nichols Donald T. Powell Peter B. Pulman, M.D. Wilbert F. Thompson James O. Threadgold, M.D. RULES OF PRACTICE-BOARD OF VETERANS APPEALS The Board of Veterans Appeals is established by authority of, and functions under, Executive Order 6230 dated July 28, 1933, and Public Law 425, Seventyninth Congress (38 U.S. Code, c. 12).1 Its membership comprises a chairman, vice chairman, and associate members. The Board of Veterans Appeals decides appeals on all questions in claims involving benefits under the laws administered by the Veterans Administration. The law provides that appeals shall be made to the Administrator of Veterans Affairs, decisions to be made by the Board of Veterans Appeals. The Board is divided into sections of three members, one of whom is designated chief. Each section has authority to make decisions on the questions that come before it, being governed by the regulations of the Veterans Administration, instructions of the Administrator of Veterans Affairs, and precedent opinions of the Solicitor. A unanimous decision by a section is final on the question involved, except that it may reconsider its action and reach a contrary conclusion upon a showing of obvious error in the record at the time the decision was entered or upon the basis of additional official information from the service department. A claimant or his duly authorized representative may have a hearing in connection with an appeal. The hearing may be requested to be held before a section of the Board or before a rating board or other appropriate personnel of the office of the Veterans Administration having original jurisdiction over the claim or of the regional or district office in which the hearing is desired. When a hearing on an appeal is held before a rating board or other personnel of an originating agency or other office, such personnel act as a hearing agency for the Board of Veterans Appeals. Argument and testimony introduced at the hearing are recorded and a complete transcript thereof transmitted with the entire record to the Board of Veterans Appeals for decision. Hearings are held primarily for the purpose of receiving the contentions and oral argument of the claimant or his representative rather than to hear testimony because, under the procedure of the Board of Veterans Appeals, it is contemplated that new and material evidence first shall be considered by the agency of original jurisdiction. However, this is not an ironclad rule, and not infrequently witnesses testify at hearings. It is required that oral argument and testimony be relevant and material to the question at issue. The rules of practice of the Board of Veterans Appeals are, more specifically, as follows: Rule 1.-Claimants, accredited representatives of recognized service organizations, attorneys, and agents duly admitted to practice before the Veterans Administration are authorized to file and prosecute appeals. 1 Current citation, 38 U.S.C. 4001-4008. Rule 2.-A specific power of attorney authorizing the service organization, attorney, or agent to represent the claimant is required. Rule 3.-An attorney or agent who has not been admitted to practice or any other person who may be recognized for the purpose of a particular claim upon filing a proper power of attorney and a statement signed by such person and the claimant that no fee or compensation of whatsoever nature shall be charged or paid for the services rendered. Rule 4.-Not more than one attorney, agent, or service organization will be recognized at any one time in the prosecution of a claim. Rule 5.-A claimant is permitted to change his representative at will, if he is represented by a service organization. If he is represented by an attorney or agent authorized by power of attorney, he may revoke the power of attorney and discharge his attorney or agent upon a showing of cause deemed good and sufficient by the Administrator. Rule 6.-An agent or attorney shall be required to exercise due diligence in all claims in which he is recognized. Neglect to prosecute a claim for 6 months or failure to furnish evidence called for by the Veterans Administration within 90 days shall be held, in default of cause shown, presumptive evidence of the abandonment of all attorneyship rights in the claim. Rule 7.-Applications for review on appeal must be made in writing and must be signed either by the claimant; his guardian, or his duly authorized representative. Rule 8.-Certain designated officials of the Veterans Administration are authorized to enter administrative appeals. A claimant will be considered to have joined in an administrative appeal in case either he or his representative elects to present additional evidence or argument while such administrative appeal is pending. Rule 9.-It is required by the law, paragraph III of part II of Veterans Regulation No. 2(a), as amended by Veterans Regulation No. 2(c), that applications for review on appeal shall be filed within 1 year from the date of mailing of notice of the result of initial review or determination. It is the practice to include in notices of action information with respect to the right of appeal and the time limit within which appeal may be entered, but a notice will not be deemed to be legally defective if it fails to include this information. Rule 10.-In simultaneously contested claims, where one claim is allowed and another is rejected, the time for filing an appeal is limited to 60 days from the date of the mailing of the notice of the adverse action. Rule 11.-The appeal must be filed with the Veterans Administration office having custody of the case file and not with the Board of Veterans Appeals. Rule 12.-In each application for review on appeal, the name and service of the veteran on account of whose service the claim is based must be stated, together with the number of the claim and the date of the action from which the appeal is taken. The appeal must state the issue clearly and point out the alleged mistake or error in the decision from which the appeal is taken; for example, if the appeal is for service-connection, the disabilities which are believed to be of service origin should be named and the reasons supporting the claimant's contentions should be set forth. Appeals which are defective because specific assignments of mistake of fact or error of law have not been submitted may be dismissed. Rule 13.-Additional evidence in support of an appeal should be submitted to the office having custody of the case file. The filing of additional evidence after receipt of notice of an adverse decision does not extend the time limit for filing an appeal. Appellants, accredited representatives of recognized service organizations, attorneys, and agents are expected to submit requsted evidence, leads, or certifications promptly. Rule 14-After all available evidence in support of an appeal has been submitted to the VA office of original jurisdiction and the case is otherwise ready for certification to the Board of Veterans Appeals, a hearing will be allowed if desired by the claimant or his duly authorized representative. Such hearing may be held before a section of the Board of Veterans Appeals; or a rating board (or other appropriate personnel) either of the VA office having original jurisdiction over the claim or of the VA regional or district office in which the hearing is desired, acting as a hearing agency for the Board of Veterans Appeals. A complete typewritten transcript will be made of every hearing conducted. 2 Current citation, 38 U.S.C. 4005 (a). Rule 15.-Whether a hearing is held in a field office of the Veterans Administration or before the Board of Veterans Appeals, it is to be understood that such hearing must be held without any expense to the Government. Rule 16.-The claimant, or his authorized representaive, is privileged to submit argument at the hearing, either orally or in writing. Witnesses may be heard and present testimony. Although considerable latitude in argumentation is permitted, it must be relevant and directed to the question at issue; opinions, comments, and assertions not related thereto should not be included in the hearing record. Rule 17.-In appellate consideration, the Board of Veterans Appeals will not take jurisdiction over questions which have not been decided by an agency or original jurisdiction. Rule 18.-Appeals are docketed by the Board of Veterans Appeals in the order in which they are received. In an emergency or for other good cause shown, the Board may advance a case on the appeal docket. Request for advancement on the docket must be accompanied by a statement of the facts which form the basis for the request. Rule 19.-Appellate decisions entered by the Board of Veterans Appeals constitute final adjudicative actions. The Board is authorized to reconsider its decisions upon a showing of obvious error or where subsequent to the Board's adverse action new and material evidence is discovered in the records of the service department. Any application to the Board of Veterans Appeals for reconsideration should set forth clearly and specifically the alleged error in the decision of the Board. In determining whether an obvious error exists which would warrant a reversal of the Board's decision, additional evidence submitted after the decision may not be considered. The determination must be based on the evidence of record at the time the decision in question was entered. Rule 20.-Requests for hearings for the purpose of showing error in a decision of the Board of Veterans Appeals must be made within the period of 1 year from the date of mailing of notice of such decision. Briefs for the purpose of showing error in a decision of the Board of Veterans Appeals may be filed with the Board at any time. Contentions advanced either by hearing or by brief should be directed to alleged errors and not to mere difference of opinion in the evaluation of evidence. Rule 21.-In the absence of a showing of error, disallowance of a claim on appellate consideration by the Board of Veterans Appeals, although final as to that particular claim, does not preclude the claimant from filing a new application on the same factual basis, provided new and material evidence is submitted in support thereof. Where a new claim is filed, accompanied by new and material evidence, it may proceed through the regular adjudicative processes, with institution of appeal, if desired, in the event of adverse action by the agency of original jurisdiction. Rule 22.-In the event of disagreement concerning fees, attorneys and agents may appeal from decisions of adjudicating agencies of original jurisdiction, and such appeals will be considered by the Board of Veteran Appeals, subject to the general rules governing appellate procedure. Rule 23.-The files of the Veterans Administration are confidential records, and all representatives of claimants must treat material therein as such. Information which may be considered detrimental to the physical or mental wellbeing of claimants may not be released to them. Distribution: CO (1CAB)-500 (AA)-5 (7)−10 (8)−10 (9)-10 (DS)-2 CN (DO & RO) (M)-1 (AM)−2 (2)−5 (3A)−3 (3B)−5 (7)−5 (8)−5 (9)-5 (DC)-5 RO & CNR (M)-1 (AM)−2 (2)−5 (3A)−3 (3B)−5 (7)-5 (8)-5 (9)-5 (DC)-5 CND & HP (M)-2 (3)-2 FD (M)-2 OR 1 copy each CR 1 copy each Figures outside parentheses indicate quantity. |