Having heard most of the testimony thus far presented, we are even more convinced of the wisdom of the action taken by the national convention.

At the outset, I think it should be clearly understood what we are talking about. The only case that would be involved in judicial review is the case of a veteran who has exhausted all remedies available to him under the law and has been denied. He is utterly without further recourse in his efforts to obtain a favorable decision. This man cannot be damaged by legislation establishing an independent agency to which he can appeal his claim. The only possible result is that benefits which have been denied him may be allowed. The decision allowing his case may well pave the way for favorable administrative action in similar cases.

When a veteran files a claim for disability compensation in a Veterans' Administration regional office, all pertinent military records are requested from the appropriate branch of service. After these records are accumulated and a physical examination accomplished by Veterans' Administration doctors where indicated, the claim is submitted to a rating board in the regional office. The rating board sits as both judge and jury in determination of the facts and application of the law. The claim is against the Veterans' Administration. It is adjudicated by the Veterans' Administration. The Veterans' Administration officials who judge the merits of the claim also serve in the capacity of representative of their own agency in defense of the claim. In many instances Veterans' Administration contact representatives also represent the claimant, so that in such cases the Veterans' Administration prosecutes the claim, defends against the claim, determines the facts, and judges the merits of the claim. In our opinion, a claimant is not adequately protected through such a procedure.

Upon receipt of an adverse decision, the veteran exercises his right of appeal. Again the same procedure is followed, with the Veterans' Administration acting as judge, jury, and counsel for one or both parties. The only difference in the circumstances is that the veteran's case is now being presented to a section of the same Board that helps to formulate the regulations, policies, and procedures being applied.

In this connection, Mr. Chairman, and in the light of comment about the extent of the Board of Veterans Appeals Chairman's participation in policymaking, your attention is invited to the "1959 Annual Report of the Administrator of Veterans' Affairs," chapter 14, entitled "Appeals," wherein it is stated:

In its review of all types of claims, the Board constantly analyzes sufficiency of VA regulations, procedures, and practices, and participates in identification and formulation of any changes needed to insure equitable determination.

It would be difficult, in our opinion, to achieve complete objectivity in determinations under such circumstances.

Decisions of the Board of Veterans Appeals, all too often, are merely narrative accounts in which the Board discusses such evidence as it cares to discuss and refers to such provisions of law as it considers consistent with their denial of the claim. It is virtually impossible from the reading of a decision of the Board to tell precisely what facts were found to exist or in what particular the claimant failed to meet the required proof to establish his claim.

The result obtained in cases considered by the Board of Veterans Appeals offers tangible evidence of the inadequacy of the present system. In the 1959 fiscal year, the Board rendered a total of 46,696 appeals decisions. Of these, 3,326 or approximately 7.1 percent were allowed. This percentage is, in our judgment, shockingly low. Even the Army Board for Correction of Military Records, which serves as the Army's appellate agency for consideration of adverse actions affecting military personnel, indicates that of 3,059 applications for correction of military records received during 1959, a total of 487 or 16.9 percent were allowed.

Aside from the shortcomings of the present adjudication process and its effect on the individual veteran, there is the matter of interpretation of law to be considered. When the Congress enacts a law to be administered by the Veterans' Administration, that agency then by regulation or instruction interprets the law. No matter how badly the agency has interpreted the intent of Congress in its regulations, there is no recourse available to an aggrieved veteran. The Board of Veterans Appeals cannot grant relief even if it were so disposed, because section 4004 (c), title 38, United States Code, states:

The Board shall be bound in its decisions by the regulations of the Veterans' Administration, instructions of the Administrator, and the precedent opinions of the chief law officer.

The alternative, then, is to ask the Congress to spell out in detail its intent by amending the law.

Two recent examples illustrate this point. 38 sets forth certain bars to VA benefits. charged during a period of hostilities as provided:

Section 3103 (a) of title Included are persons disaliens. Section 3103 (c)

Subsection (a) shall not apply to any alien whose service was honest and faithful, and who was not discharged on his own application or solicitation as an alien.

This language is, in our judgment, clear and concise. Yet, the Veterans' Administration in its regulations held that

evidence shall be such as to affirmatively show he was not discharged at his own request and service department records which are silent are not sufficient to prove the discharge was not at his request.

In brief, these men were presumed guilty in the absence of evidence establishing innocence. Fortunately, this committee and the Congress saw fit to enact Public Law 86-113 which merely added the language:

No individual shall be considered as having been discharged on his own application or solicitation as an alien in the absence of affirmative evidence establishing that he was so discharged.

In another instance, the Congress enacted Public Law 427, 82d Congress, which authorized increases in rates of compensation for certain disabilities and also authorized statutory awards for the loss or loss of use of a creative organ and arrested tuberculosis. The Veterans' Administration, in issuing instructions, provided for an automatic increase in the rates of compensation payable to persons then on the rolls, but held that the statutory awards for loss of creative organ and arrested tuberculosis were considered as new benefits even though service connection had been established and was a matter of record. An

application was required with payment authorized only from the date of filing the claim. Thus, many veterans, ignorant of the law, failed to file applications and were deprived of compensation. Again, this committee acted by reporting H.R. 5996, now pending in the Senate. The bill would authorize the payment of the statutory award in all cases determined to be service-connected on the effective date of the amendatory act, August 1, 1952, without the requirement of a claim being filed in such cases. This committee in the report accompanying H.R. 5996 stated:

It is the belief of the committee that both of these new awards should have been automatic with respect to cases in which service connection of the condition had already been determined, without the application the Veterans' Administration has seen fit to require.

Now, Mr. Chairman, if one single case in each of these categories could have received the benefit of judicial review, an interpretation by this independent tribunal could have set a precedent for the VA's guidance in all similar cases. The valuable time of the Congress would not be consumed in properly interpreting its own statutes.

It has been argued that veterans' benefits are gratuities and, therefore, should not be subject to judicial review. AMVETS have always protested applying the term "gratuities" to compensation and prefer to look upon it as a veteran's right. Even if we were to concede, however, that veterans' benefits are gratuities, this is not in itself reason to support the finality of decision in their administration.

The type of program should not be the controlling factor. It is desirable in every program that safeguards be established to prevent unreasonable or arbitrary decisions in the interests of both the citizen and his Government. It is in keeping with the spirit of American political institutions that judicial review should be available to assure that executive action shall not be arbitrary, and that those with claims against the Government may, under prescribed conditions, have their "day in court."

This does not affect the clear fact that the Congress has the right to extend, withhold, or modify gratuities as it sees fit. At the same time, however, it would guarantee that the laws are administered in accordance with the intent of Congress, and that judicial restraints are generally available.

We urge this committee to report a measure that authorizes judicial review of Veterans' Administration decisions.

Mr. MITCHELL. Thank you, Mr. Holden. I know you have been in attendance each day of the hearing, and you have heard the testimony; and one of the strongest opposition statements to judicial review is that the end result would be that the veteran would be denied the justice to which he is entitled; that the creation of a separate court would in fact deny him justice and would work harm to the individual

veteran.

Now, in contrast to that testimony, Mr. Holden, you state, on page 2, and I am quoting:

This man cannot be damaged by legislation establishing an independent agency to which he can appeal his claim. The only possible result is that benefits which have been denied him may be allowed.

Now, your statement, of course, is at the opposite end of the other statement that has been made before this committee. Would you like to amplify that?

Mr. HOLDEN. Mr. Chairman, I have attempted to analyze and evaluate the statements that have been made by opposition witnesses, to the effect that judicial review would hurt the claimant, and I cannot possibly conceive, under any circumstances, how the individual claimant can be hurt.

It has been alleged that with the inauguration of judicial review, more stringent rules of evidence would be required by the agency in the administration of the law. I do not believe that this is absolutely necessary. I think the Congress in drafting a bill providing judicial review can certainly set forth rules of evidence that are no more stringent than the rules under which veterans' benefits are presently considered. It seems to me to be a little ridiculous to ask a court to adopt more stringent regulations, or more stringent rules of evidence, in considering appeals, than those used by the agency in its initial consideration of the case.

Mr. MITCHELL. I will ask you, too, Mr. Holden. It has been testified before this committee that:

At present the Administrator has broad authority to interpret the law and to modify that interpretation when he is convinced of the necessity to do so. An inerpretation of law by the court, however, would be final. We feel that such a rigid method of operation would be less desirable than the existing one.

Do you agree with that?

Mr. HOLDEN. No, sir.

Mr. MITCHELL. Why do you not agree with it, Mr. Holden?

Mr. HOLDEN. First of all, Mr. Chairman, the so-called flexibility that presently exists in the Veterans' Administration system, where a case can be reconsidered time and time again, does not, in itself, insure that the veteran is ultimately going to obtain justice. I would rather have one completely objective, impartial review of the agency's action than 10 reconsiderations that result in no favorable action by the agency itself.

I believe, too, that the Congress, in establishing the court, can certainly provide that the case may be reopened upon the submission of new evidence, just as presently obtains in the agency consideration. Mr. MITCHELL. This witness was saying, in effect, that insofar as veterans' claims are concerned, he felt that it would be better to have an administrative interpretation of the law, rather than a judicial interpretation of the law.

Do you agree with that?

Mr. HOLDEN. No, sir.

Mr. MITCHELL. Can you conceive of any individual instance when you would feel that an administrative interpretation of law would be superior or more desirable than a court construing a particular law? Mr. HOLDEN. No, sir.

Mr. MITCHELL. Do you have anything further, Mr. Holden?

Mr. HOLDEN. I would just like to add one additional point, Mr. Chairman.

A question has been raised in testimony before this committee on this subject about the possibility of service officers not being permitted to represent claimants before the court should such a court be established.

Certainly from the point of view of AMVETS it would be desirable if, in the legislation that ultimately results, service officers were permitted to present cases to the court.

However, I do not think this is an overriding factor that should be absolutely essential. Certainly nothing is being taken away from the service organization at the present time. It can still pursue the same course of action through the agency that it has always pursued. This legislation merely would superimpose another turn at bat, and we would have no objection to relinquishing the case to a qualified attorney at that point if it becomes necessary.

Mr. MITCHELL. Thank you very much.

Without objection, I shall insert in the record at this point statistical information from the Administrative Office of the U.S. Courts. ADMINISTRATIVE OFFICE OF THE U.S. COUrts, Washington, D.C., March 21, 1960.

Hon. OLIN E. TEAGUE,

Chairman, Committee on Veterans' Affairs,
House Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: I am enclosing herewith three tables from our annual report for the fiscal year 1959 at the request of Mr. Downer. Table B-1 shows the percentage of reversals in the appeals of administrative agencies and table B-3 shows the number of appeals from administrative agencies for the last 5 years. The percentages of reversals have not varied greatly in that period. I hope this information will be of help to you.

Respectfully yours,

WILL SHAFROTH.