statement-not always is the veteran going to benefit by the liberal rules of construction. This veteran did not benefit, did he? Because here you use hearsay evidence as the primary basis under the facts that I gave you, for denying this claim.

Mr. STANCIL. That is right, sir.

Mr. MITCHELL. And the hearsay evidence of the clinical record and that of medical evidence that this is an ailment normally or usually of congenital origin, in the decision of the Board, overrode the presumption of soundness under section 311, together with the clinical record at induction, plus another specific clinical record of a specific finding of no heart involvement 8 months after he had been in service.

Mr. MORSE. Mr. Chairman, may I ask a question on this? Do I infer that the claimant did not admit to the hospitalization at age 14? He did not admit to that?

Mr. MITCHELL. Under the statement of facts, he had no knowledge that it was in existence.

Mr. MORSE. He had no knowledge that he was hospitalized at age 14?

Mr. MITCHELL. That there was any heart involvement. He continued a normal activity, including participation in sports, and was inducted into service.

Mr. MORSE. And he had never been informed of any diagnosis? Mr. MITCHELL. No.

Mr. MORSE. Thank you, sir.

On this hypothetical case we have been discussing, Mr. Chairman, it would seem to me that I would certainly seek reconsideration if I were the claimant.

Mr. MITCHELL. I might say that under this hypothetical case, there was, after the third decision affirming the severance, a fourth decision, in which finally the claim was allowed.

Mr. MORSE. Justice prevailed.

Mr. MITCHELL. Finally.

Mr. Stancil, do you think the decision I have been quoting from is representative of the decisions that are forthcoming from the Board of Veterans Appeals?

Mr. STANCIL. It would be difficult to say, without reading it. Mr. MITCHELL. Are you not familiar with this particular case? Mr. STANCIL. Yes; but not in the detail that permits me to talk to you about the specific language there, now.

Yes; I know which case you mean. There are so many cases there that I have a general knowledge of what is involved, and not the specific facts, that would permit me to discuss it in fine detail.

Of the 36,000-some cases a year, I would suspect that there would be language in some of the decisions that could certainly be improved. Perhaps this is one of those instances. You can be assured I will read it again as soon as I get back to the office.

Mr. MITCHELL. I think that you will very likely be reading it the rest of the week, because the record is quite voluminous.

Mr. Teague?

Mr. TEAGUE. I think I would like to say this, Mr. Chairman, for the record.

I am sorry I was not able to be here most of last week, because my other committee has been in executive session trying to solve the farm problems of the country.

I have an entirely open mind on this problem. As a lawyer, I am inclined, very much inclined, to agree with the principle of judicial review. I must say, however, that in my own experience of only 52 years here in Congress I have had many, many cases before the Board. Sometimes it seems to me that all of the disabled veterans in the country have moved to California and into my district.

I have personally not had any cases where I felt the Board made any serious errors in judgment or any flagrant violations of the right of the veterans.

As I think back over the years, I am not entirely sure, again as a lawyer, were I practicing law and were I representing these veterans, and had they lost, as they sometimes do, before the Board-I am not sure whether I would advise any of these people to appeal their cases. In other words, personally, I have not had the experience that apparently some other Members of Congress have. And I have tried to follow this carefully.

I say that, because I do not think it is fair, and no one, I am sure, intends to leave the impression that the Board of Veterans Appeals always comes to the wrong decision.

Mr. MITCHELL. I think that you are speaking for the entire membership of not only this subcommittee but the entire committee. Certainly no thought such as that should be conveyed or felt by any member of the Board or the Veterans' Administration.

But we are concerned as to whether or not there should be an additional review and whether it should be by not an administrative body, but one much more independent from the Veterans' Administration than is the Board of Veterans Appeals.

Mr. TEAGUE. It certainly is a very big and important issue.

Mr. FLYNN. I have an open mind and have been listening. Most of these regulatory bodies do a good job. Back in my home state, when we originated the Workmen's Compensation Act, we had it administered by a board similar to that which you have here. And as these acts are passed by the legislature, the thought in mind of those passing them is to do something that will benefit the group involved. And they have in mind that the board or the court will have a sympathetic approach to problems that come before it.

But as time goes on, the Board frequently becomes composed of people who are more interested in saving the dollar than they are in the human values that are involved. And with the passage of time, we get away from the thought of the humanitative problem that was involved and that originally caused the people to demand their legis lature to pass this act.

In other words, it is human values as against property values. And that goes on for a period with decisions that are not accomplishing the original intent until there is change in the personnel of the Board and we get back on the road as it was originally thought of.

Certainly I think there should be both subjective evidence received and considered, as well as objective evidence. Whevere you are dealing with illness, including the nervous system and so forth, subjective evidence must of necessity be considered. And I would dislike to see

any rule whereby it would be either made difficult or impossible to submit subjective evidence.

There is no rule put forth in the Veterans Appeals Board, I do not believe, to the effect that if there is any evidence to sustain the original finding, the appellate board must act accordingly. In some bodies you have that, and it has been my observation that in most cases it has worked an injustice.

Mr. MORSE. If I may interrupt and comment on your question, Mr. Flynn, fortunately the Board is not bound by the substantial evidence rule which you have just alluded to; although most judicial review that is provided in the administrative process is bound, as the Congressman knows, by the substantial evidence rule.

In our case, fortunately, the Board can substitute its judgment, if it determines that a preponderance of the evidence supports a different finding from that which the adjudicative processes have reached.

Mr. FLYNN. It would be my further observation that your people would be much more difficult without the appellate court which we are speaking of than it would be with it; because as Administrator you would constantly have to bring to the attention of the various hearing chiefs the humanitative view and constantly work to see that justice prevailed. When they developed a set of rules and exceptions which made it difficult for cases to be presented, for evidence to be received, hard for the veteran to get a hearing and get justice, then the only resort can be what this committee is suggesting by this bill, which is to lay down rigid rules; an appellate board, precedent.

And, of course, when you analyze it, the purpose of such a court being created is to secure the original intent of the framers, to make sure that the veteran in this case can get an easy hearing, that proper evidence can and will be received, that he will get justice; and unless the head constantly, every week, is reviewing this with the people in charge, there is going to be a tendency to grow away from the original intent. And then Congress or the State legislature could only protect it by creating a rigid board which would guarantee the humanitative viewpoint that the people first through their Congress had in mind when they created the very board which your Department is administering.

Mr. MORSE. Fortunately, sir, on that, we do have a good bit of turnover on the Board, and this coming year we will have a change of 13 out of 37 members.

Mr. Stancil would like to comment on that.

Mr. STANCIL. I merely wanted to assure you that certainly the Chairman and the Vice Chairman and the members of the Board are imbued with this concept that you mentioned, that we exist there for one thing. We have a dual responsibility. We have as much responsibility to the veteran and the veterans dependents as we do to the Government.

As to whatever danger there might be, as you alluded to, to developing some concept that gets away from this original intent, I would like to sunggest that there are considerable deterrents to developing such a concept; because I know of no Government agency that operates so much in the goldfish bowl as does the Board of Veterans Appeals.

Mr. FLYNN. I might say that this is extremely comparable to what your veterans' organizations are fearful of in the act we passed last year, where we established the element of need. They have no fear of the Board as presently constituted, because it is so close to the passage of the act that they know for the immediate future the need will be considered in its proper perspective; but they fear 5 or 10 years from now, when new personnel are on the Board and they are away from us, that they will not get the fair treatment that they are getting.

I think we all recognize that unless the Administrator is extremely careful, not now, but 10 years from now, this could be abused, and we will all live to be sorry for the way it was put in.

It certainly was the humanitative view of this committee in passing it not to make it difficult for the veteran; but you can see that there is doubt and fear around the country as to what will happen in a few years in the construction of this clause.

Mr. MORSE. Any quasi-judicial body or any judicial body that has the responsibility for construing the laws of Congress has the responsibility to keep ever alert to the intent of the Congress, of course.

Mr. FLYNN. I know that our chairman is extremely serious and conscientious, and I know that the feeling is that there may have been a growth away from the original purpose, and the only way he could secure justice for the veteran was to resort to precedent and rigidity; so that there cannot be denials of justice because of the whim or caprice of a particular examiner depending on how he might feel that morning.

I know that you are trying to get a better break for the veteran, insuring him justice.

Mr. MORSE. And I want to assure the committee that the only reason that we advised caution toward the development of a new course is because of our conviction that perhaps the very fine and proper aims that Congressman Flynn has just described, and that I am sure the chairman has, might not be attained by the process of another review structure.

Mr. MITCHELL. Of course, we are going into that further.

We will place in the record at this point a letter, addressed to me as chairman of this subcommittee, from Lawrence E. Walsh, Deputy Attorney General, dated April 8, 1960.

(The letter from Mr. Lawrence E. Walsh follows:)

Hon. ERWIN MITCHELL,

Chairman, Subcommittee of the Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.

APRIL 8, 1960.

DEAR MR. CHAIRMAN: Your letter to the Attorney General dated April 4 concerning special subcommittee hearings on proposals to establish an independent appeals court with appellate jurisdiction over administrative decisions of the Veterans' Administration, has been referred to me for reply.

I note that this Department's report on the nine measures involved, dated April 4, crossed your letter in the mails. This being so, you did not have the benefit of our report at the time you wrote.

Please be assured of this Department's desire to cooperate with your committee in every way possible. As Mr. Downer of your office staff probably told you, the subcommittee hearings came at a particularly inconvenient time for the Department of Justice to participate, for we have had the U.S. attorneys here from all of the judicial districts throughout the United States, including Alaska and Hawaii, and from Guam, Panama, Puerto Rico, and the Virgin Is

lands, for Department conferences relating to the enforcement and administration of the Federal laws.

Now that the U.S. attorneys conference is over, if after considering our report of April 4, you still desire that the Department of Justice have a witness appear before the subcommittee please have one of your staff telephone Mr. Frank Chambers of this office, extension 2113, who will be pleased to make the necessary arrangements.

Sincerely yours,

LAWRENCE E. WALSH, Deputy Attorney General.

Mr. MITCHELL. Mr. Saylor, we only have 1 minute.

Mr. Saylor wanted to take 2 minutes. So in order to give him 2 minutes, I think we had better recess and come back later, subject to the call of the chairman.

The committee will stand in recess.

(Whereupon, at 11:59 a.m., the subcommittee recessed, to reconvene upon the call of the chairman.)