TABLE B-3.-Source of appeals and original proceedings commenced in the U.S. courts of appeals during each of the fiscal years 1955, 1956, 1957, 1958, and 1959, by circuit-Continued

TABLE B-3.—Source of appeals and original proceedings commenced in the U.S. courts of appeals during each of the fiscal years 1955, 1956, 1957, 1958, and 1959, by circuit-Continued

Mr. MITCHELL. The next witness is from the Department of Justice Mr. George Stephen Leonard, First Assistant, Civil Division, and Mr. Russell Chapin, Chief of the Veterans' Affairs Division of the Department of Justice.

STATEMENT OF GEORGE STEPHEN LEONARD, FIRST ASSISTANT, CIVIL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY RUSSELL CHAPIN, CHIEF OF THE VETERANS' AFFAIRS AND INSURANCE SECTION OF THE CIVIL DIVISION

Mr. LEONARD. My name is George Stephen Leonard. I am First Assistant in the Civil Division of the Department of Justice, and I have with me today, Mr. Russell Chapin, Chief of the Veterans' Affairs and Insurance Section of the Civil Division of the Department of Justice.

The statement of the Department of Justice with respect generally to the legislation was contained in a letter to the chairman of the committee under the date of April 4, 1960, and sent by the Deputy Attorney General, Mr. Lawrence E. Walsh.

Mr. MITCHELL. Your report has been, of course, received, Mr. Leonard, and has been made a part of the record.

We did request and desire to have the Department appear personally in order that we might seek your advice and also your counsel on certain matters of law that we anticipated would be discussed during the hearings, and which have been discussed during the hearings.

Now, one of the things, Mr. Leonard, that has concerned the subcommittee considerably, has been the application by the Board of Veterans Appeals of certain provisions of law. One of these is section 311 of title 38, presumption of sound condition.

Now, what is your position as to just what the language in this statute means?

Mr. LEONARD. Speaking for the Department of Justice, Mr. Chairman, I would, of course, be unable to give any opinion of any kind. It would be restricted to the Attorney General by law, and by law he would be permitted to give it only to the heads of departments.

In this particular case, I doubt that he would be able to do that, since the statute specifically confers the opinion-making-in the sense of law-authority here upon the Administrator of Veterans' Affairs

himself.

Speaking in a personal sense, as a lawyer, I would say first, that Mr. Chapin is far more capable than I am of speaking to specific statutes in the veterans' field.

But, secondly, I do not believe that anyone could make a general statement as to the meaning of the law in the absence of some specific illustration or some specific case.

Mr. MITCHELL. I see what you mean. We could go into a hypothetical case; but that is not the precise point we are concerned with now. And I will ask this question and would like comments both from yourself and Mr. Chapin; of course, recognizing that these are your views personally and as lawyers. And of course the Department that you represent is not being bound by your interpretation of the law.

I think that you are familiar with section 311, are you not?
Mr. LEONARD. I have read the material, yes.

Mr. MITCHELL. We have had some testimony to the effect that the presumption of sound condition, which arises by virtue of section 311, can be dispelled in two ways. First, where defects, infirmities, or disorders, are noted at the time of the examination, acceptance, and enrollment; and second, the presumption of sound condition will be dispelled where there is clear and unmistakable evidence that the injury or disease existed before acceptance and enrollment. That is one construction that has been given.

Mr. LEONARD. That is the statutory language itself, is it not, sir? Mr. MITCHELL. I believe I stopped at the next to the last line, the word "enrollment."

This witness gave the further view that the language, "And was not aggravated by such service" has no real meaning insofar as rebutting the presumption is concerned. It was his interpretation of the statute, although the language "And was not aggravated by such service" was contained in the statute, that the burden was not upon the Government to rebut this presumption by showing clear and unmistakable evidence that the preexisting injury or disease was not aggravated by service.

What is your view, if you would give us the benefit of it, please, Mr. Leonard, and you, too, Mr. Chapin ?

Mr. LEONARD. I am afraid I would have to confess, Mr. Chairman, that I have no personal view on the matter whatever.

I would like to point out that the language you have written is a degree of proof, apparently, upon the Veterans Administration here which is considerably greater than would exist in a court as to any presumption. But the addition of your last phrase as being included within or excluded from the matters which would have to be shown, I would say clearly would be a question of opinion of the person reading it.

I can ask Mr. Chapin, but again, as I say, it would be clearly a question of personal opinion in reading the language.

Mr. MITCHELL. Mr. Chapin?

Mr. CHAPIN. Well, it would seem to me that the statute sets up a presumption of sound condition of health. And as you suggest, there are certain things which can overcome that presumption. If it is overcome, then the veteran starts as if the presumption were not in the picture at all.

We have not dealt with these statutes, as you recognize, because we do not have litigation under them, and therefore any opinion I would have would be rather a cavalier one, I am afraid.

Mr. MITCHELL. I think we have had some rather cavalier opinions before the committee, so we would welcome yours, too.

Mr. LEONARD. May I point out that, coming from the Department of Justice, even the quoting of an opinion usually ends up with the opinion being quoted as of highly official status. When we approach a statute with which we have not worked in court, when we approach a statute which has been written as part of a large group of related statutes, each of which impinges upon the other and requires an expertise which a lawyer does not have unless this is his field of endeavor, I think a personal opinion simply goes down to the vanishing

point of value, and I am afraid I have to consider my own opinion in about that category. It just has none.

Mr. MITCHELL. You have qualified any statement you might make in the future, Mr. Leonard. The record will abundantly show that whatever you might say or Mr. Chapin might say should not in any way reflect any official opinion coming from the Department of Justice. But you are both lawyers. We all construe statutes daily in the practice of law. We may be right; we may be wrong. And I believe on last Friday your Department was advised that we would welcome and appreciate any view and any enlightment that you could give the subcommittee as to sections 311 and 353.

Mr. LEONARD. Yes, Mr. Chairman. That is correct. And we did at that time take out the statutes and look at them, and it was at that time that, I think, here became obvious something we said previously, namely, that the statutes cannot be treated as if they existed apart from the whole body or bulk of veterans' legislation.

In this particular case, the last phrase of section 311, "and was not aggravated by such service," is a phrase which would appear at least on the surface to refer to an entirely different section, which I believe also Mr. Downer intends to note; so that it may have been the intention of the committee-and this is something which I presume each of us would go to the legislative history to find out-that the addition of that phrase was intended simply to key this particular section over to the other section, which deals with the aggravation of preexisting injury.

Mr. MITCHELL. Is that your opinion, Mr. Leonard?

Mr. LEONARD. Well, short of seeing the legislative history of the statute, that would be my opinion.

Mr. MITCHELL. Would your view of the matter possibly be different, if, in studying the legislative history, you found that the language of 311 existed a considerable length of time prior-as it is codified today prior to any other section that refers to aggravation of a preexisting injury?

Would that have some effect on your construction?

Mr. LEONARD. It would certainly have some effect on the construction; but then I would have to know what the effect of aggravation as of that time was, in the whole system of veterans' benefits.

In other words, there might have been an independent right to some form of pension or bounty for aggravation of a preexisting injury under an existing interpretation of that time which was later codified. Mr. SAYLOR. Just a minute. How can you make that statement, in view of section 310, which specifically provides for entitlement of the basis of injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury, in one of those circumstances? Mr. LEONARD. Sir, I thought that was precisely what I had said; namely, aggravation may have always been a basis for compensation, with or without the specific physical sound condition aggravation

statute.

In other words, without studying the legislative history of these, which I understand has a very complex history, aggravation may well have been the basis for pensions as far back as our republic goes, in the same category exactly as a duty injury.