Mr.

(representative). Yes, sir. In summing up this case we would again like to cover two pertinent facts. First of all, the veteran had been subjected to numerous antibiotics over a number of years, during which time he did develop a resistance and medical evidence of record clearly points out that any organism resulting from such a skin condition would be largely resistant to normal antibiotics. Secondly, the hospital report covering treatment for the lacerated leg shows the basic wounds were correctly treated, with no indication or implication as to any infection resulting therefrom. We contend that the localized skin infection did spread to the subsequent wounds of the left leg and that the resistance to antibiotics did not accomplish the intended results which ultimately led to serious infection and amputation.

We further request that all reasonable doubt be resolved in favor of the veteran. Thank you.

CHAIRMAN. Thank you, Mr.

(claimant) and Mr.

(representative). Well, Mr. (representative), the

Board will consider the evidence of record together with the testimony that has been presented today, and when we reach a conclusion we will advise all interested parties. If we find it necessary to secure additional hospital records before we reach a conclusion, that will be done immediately. Thank you very much for coming in.

(Hearing adjourned).

I hereby certify that the foregoing

pages are to the best of my knowl

edge and belief a true and correct hearing transcript.

Hearing Reporter.

Mr. MORSE. At the present time it takes about 48 working days from the receipt of the case in the Board of Veterans Appeals to the rendering of and dispatch of a decision. Of course, this includes time for study of the case and of the file by an accredited representative of the veteran, time for hearings, time involved in correspondence about a case, and other related matters.

Now, we have established for ourselves a goal of 35 days, or less than 35 days, hopefully, and we are extremely hopeful that we can attain it.

I understand that Mr. Devine discussed with you earlier in the week the matter of the time element required in the Federal courts. So it was for that reason that I thought this might be germane.

We think it is important-and I am sure the committee agrees— that any system for the review of veterans' claims be flexible, and that it not be bound by rigid precedents. And to insure this, we have insisted, within the Veterans' Administration, that the decisions of the Board of Veterans Appeals are factual determinations that do not serve as precedents.

Hope was expressed here before the subcommittee earlier that perhaps an initial flood of appeals to the court, which might be set up under legislation proposed by the committee, would abate when adequate precedents are established. And I think it may be pertinent to note here that our experience has been that the appeals that come before us involve mainly issues of fact rather than issues of law, and hence the precedential value of cases is not as great as one might hope.

I am sure that each one of us would place the consideration of cost in a secondary position. The primary consideration must be that the system be fair and that it produec just and equitable decisions, and that it produce these decisions promptly.

The Board of Veterans Appeals at the present time operates on a budget of approximately $2 million a year, and in 1958, fiscal 1958, the cost per case was slightly over $52.

I of course recognize that it is extremely difficult to compare the performance of an administrative agency, such as the Board, with the performance of judicial organizations, such as the Court of Claims and the Court of Military Appeals, but I think perhaps it might be of some interest to the committee to note the cost of opinions of these

courts.

In the same period of time, fiscal year 1958, the cost per case for the Court of Claims was $688, and the cost per opinion for the Court of Military Appeals, was $1,171. I think it is only fair to point out here that the Court of Military Appeals, in addition to writing opinions, does not write opinions in every case.

in

Total actions for the Court of Military Appeals in that year, cluding petitions which were denied and petitions which were withdrawn or dismissed without opinion, totaled 1,786. And if this were to be the proper basis for evaluating the court, the costs, of course, that I just cited would be altered downward proportionately.

Now, perhaps it might be helpful to the committee, too, if I could review the adjudication procedures that are observed in the Veterans' Administration.

I will do this very superficially. Mr. Stratton, of the Compensation and Pension Service of the Department of Veterans Benefits, is with us, if there are any detailed questions the committee would like to ask. But the adjudication system operates as demonstrated here (chart 3).

VA ADJUDICATION SYSTEM

Claim for Service Connection

ADJUDICATOR_DEVELOPS EVIDENCE

RATING BOARD....

The claim, let us say for service connection, is first presented to one of our regional offices and an adjudicator in the regional office will develop the evidence and get the file together for presentation to a rating board. The rating boards we have in each one of our 67 regional offices. The rating board considers the file which has been developed by the adjudicater and then decides the claim.

If the rating board decides it favorably-and they do in about 44 percent of the cases-the matter is ended there. If on the other hand they do not have unanimous opinion, and there is a dissent, let us assume, the case will then go to the adjudication officer. The adjudication officer can affirm the majority opinion, if he sees fit to do so, or he can order what we call an administrative appeal, which is decided by the Board of Veterans Appeals.

Now, in the case of a denied claim and the claimant appeals, the case again goes before the same rating board to consider whatever new evidence there might be, to consider whatever arguments there might be, and in some cases, about 10 percent, the rating board on reconsideration will agree upon a favorable decision allowing the benefit appealed for. If not, it would be certified to the Board of Veterans Appeals, which would then resolve the question; would either allow the appeal or remand and send it back for further development, or deny it, as the case may be.

Now, in the event that there is a unanimous opinion, let us assume, by the rating board, of rejecting the claim, the veteran has 1 year from the date of notification of that adverse action in which to file his appeal with the Board of Veterans Appeals. The Board, here in Washington, will obtain the full file. The veteran is entitled, if he sees fit, to appear before the section of the Board in person, or in some cases the Chairman of the Board will designate, will arrange that members of the rating board in the regional office serve to take the evidence or take whatever additional matters might be presented by the veteran.

Mr. MITCHELL. Let me interrupt, please.

The number of cases that are remanded by the Board of Veterans Appeals-do you have that figure?

Mr. MORSE. It is about 3,500 or 3,600 that are remanded.

Mr. MITCHELL. Out of a total of how many?

Mr. MORSE. 36,000; about 10 percent.

Mr. MITCHELL. And that is principally to obtain additional evidence?

Mr. MORSE. To obtain additional evidence; yes.

In the event that there is this unanimous opinion by the rating board, as I said, the Board of Veterans Appeals can consider the case, and the veteran has a year from the date of notification of the adverse action to take his appeal.

The Board, also, even after it has heard a case, has authority, which it frequently exercises, to reconsider cases which it, the Board, has already decided.

According to the established rules, reconsideration will be granted, where there is obvious error in fact or law, or where there is new evidence available from the military departments.

As a practical matter, the Board does entertain reconsiderations when there is any substantial allegation of error which the Board deems worthy of its consideration.

Of course, at any time, even after an appeal has been denied, let us assume, the veteran may open the case up again by the production of new evidence which would support his claim.

In fiscal year 1959, we received about 328,000 new claims for compensation and pension payments from veterans and their dependents.

At the VA regional office level-as you know, we have 67 of thesewe were able to allow about 44.6 percent of the new claims. During this same period of time, 42,500 appeals were filed.

Upon the consideration of new evidence, further development of this, almost 12 percent of these appeals were allowed in the regional office. That is, when the rating board itself reconsidered the case before certifying it to the Board of Veterans Appeals, about 11.8 percent of those cases were allowed in the regional office.

In the same year, fiscal year 1959, the Board of Veterans Appeals disposed of 36,300 cases.

Despite the fact that each one of these cases had been reviewed at least twice by experts in the field office, by the initial rating board action, and by the reconsideration of the rating board prior to certification of the case to the Board of Veterans Appeals, despite the fact that each of these cases had been reviewed at least twice, the Board remanded, as I said, about 10 percent, 3,600, of these, for further development, and allowed an additional 10.3 percent.

I think certainly each of us will agree that any system of deciding cases must satisfy the public as to the inherent fairness of its approach. And in order to achieve this objective, although the Board of Veterans Appeals is not subject to the Federal Administrative Procedure Act, we have incorporated into our procedures the concepts of the act relating to hearing and representation rights inherent in providing the due process of law requirements in quasi-judicial adjudication.

For example, our regulations provide for full access to the record by the veterans' accredited representatives. Hearings are granted on request. We insist upon the complete and full development of all the facts. And we have many procedures which are designed to assist the claimants.

Every claimant who so desires may appear and may present his case in person to the very officials who will decide the claim or decide the appeal.

The Board of Veterans Appeals within the Veterans' Administration is entirely separate, entirely apart, from the departments, the three line departments, that we have, which initially pass on the claims.

And appellate decisions incorporate contentions on appeal, material facts, reasoned discussion, and the conclusion of the Board. The Board's rules of practice provide for reconsideration, as I said, when there is substantial allegation of error.

Back in the days of the Veterans Bureau, when the number of the World War I veterans (those served by the Bureau) was about onefifth of the current veteran population, which, as you know, is about 22 million, the. Veterans Bureau at that time experimented considerably with what ought to be done for the veteran who felt himself aggrieved.

A Board of Appeals was established in each one of the 14 district offices which then were operating and which had responsibility for the adjudication of claims in the first place. But to be on the safe side, a superboard, if you will, was installed in Washington. And the then Director of the Veterans Bureau himself undertook personally to review cases which were appealed further to him.

In 1925, this superboard, which was in Washington, handled 48,000 cases-mind you, with a veterans' population of about one-fifth of what the present is-and the Director himself was deluged with about a thousand appeals a month; notwithstanding the fact that each one of the cases that came before the Director had previously had two reviews on appeal.

Drastic reorganizational steps were taken to reduce this load, but in spite of these steps ultimately 80 percent of all the appeals which were decided found their way to a group which the Director finally had to establish in his own office to permit the disposition of cases which were appealed to him personally.

This highlights, I think, one of the problems with which I know the committee is concerned, the matter of the volume of activity which any separate appellate body would have. And it certainly is a big problem, relating to the volume of cases that another appellate structure would entertain.

We, of course, could ask ourselves as to whether the volume of appeals to the court could be contained by making them costly. Well, I am sure that it probably could, but I am equally sure that this is something that the committee would not want to do, because it might very well exclude the very claimant who is most deserving of help.

It perhaps could be suggested that appeals could be limited by subject matter; that is, by limiting the court's jurisdiction to claims for service connection or for basic eligibility. But something of this order, too, could conceivably be unfair to a combat disabled veteran who might be denied review of his claim for an increase because, perhaps, a court was filled with litigants seeking to establish service connection for relatively minor disorders.

I am told that Congressman Devine referred in his testimony Tuesday to the caseload in the Board of Veterans Appeals. And we certainly have a caseload, a considerable one, as I pointed out. We have someplace between 37,000 and 38,000 at the present time per year. But we also can visualize, as I am sure the committee can, the caseload which would develop in a court, which legislation might create.

Let us assume that only 10 percent of the 36,000 appellants whose claims were decided by a Board of Veterans Appeals in fiscal year 1959 should go on to court. That load in itself, that 10 percent load, would be just about equivalent to the total caseload of all the circuit courts of appeals for fiscal year 1959.

In other words, it would approximate the total circuit courts of appeals load.

Mr. MITCHELL. Mr. Morse, at that point: You used the figure 36,000. Now, does that refer to the number of cases? Or the number of claimants?

Mr. MORSE. That refers to the number of cases, Mr. Chairman. Mr. MITCHELL. I think the number of claimants is considerably above that. Is that not correct? Do you have that figure? Mr. MORSE. May I direct the question to Mr. Stancil?

Mr. STANCIL. There would be more claimants. Some cases involve more than one claimant. I think perhaps the chairman is referring to issues. There could also be multiple issues involved in the single appeal of a single individual. There can also be more than one claimant in a case.